Chapter 8.55 SMOKING

Reliable studies have shown that breathing second-hand smoke is a particular health hazard for certain population groups, including elderly people, individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease; and

Health hazards induced by breathing second-hand smoke include lung cancer, respiratory infection, decreased exercise tolerance, decreased respiratory function, bronchoconstriction and bronchospasm; and

Nonsmokers with allergies, respiratory diseases and those who suffer other ill effects of breathing second-hand smoke may experience a loss of job productivity or may be forced to take periodic sick leave because of adverse reactions to same; and

The simple separation of smokers and nonsmokers within the same airspace may reduce, but does not eliminate, the exposure of nonsmokers to second-hand smoke; and

Numerous studies have shown that a majority of both nonsmokers and smokers desire to have restrictions on smoking in public places and places of employment; and

Smoking is a documented cause of fires; and

Cigarette, cigar burns and ash stains on merchandise and fixtures cause economic losses to businesses; and

The Surgeon General has determined that cigarettes and other forms of tobacco are addicting in the same sense as are drugs such as heroin and cocaine; and

The free distribution of cigarettes encourages people to begin smoking, and tempts those who had quit to begin smoking again; and

The sale of cigarettes through vending machines in areas where smoking is not allowed under this chapter could complicate enforcement of its provisions.

Accordingly, the city council finds and declares that the purposes of this chapter are (a) to protect the public health and welfare by prohibiting smoking in public places and in places of employment; (b) to help people to avoid becoming addicted, and to help people who wish to quit smoking, by limiting their unintentional exposure to smoking, tobacco products and inducements to smoke; and (c) to strike a reasonable balance between the needs of smokers and the need of nonsmokers to breathe smoke-free air, and to recognize that, where these needs conflict, the need to breathe smoke-free air shall have priority. (Ord. 23-2012 § 1, 12-4-12. 1990 Code § 4-6101.)

8.55.030 Definitions.

The following words and phrases, whenever used in this chapter, shall be construed as defined in this section:

“Commercial area sidewalk” means any walkway in front of, through, around or adjoining any property designated on the city’s general plan land use diagram as city center, town center, general commercial, regional commercial or mixed use.

“Dining area” means any privately or publicly owned area, including streets and sidewalks available to or customarily used by the general public, which is designed, established or regularly used for consuming food or beverages.

“Electronic cigarette” or “e-cigarette” means an electronic and/or battery-operated device, intended to emulate smoking, that can be used to deliver an inhaled dose of vapors including nicotine and/or other substances. “Electronic cigarette” includes any similar device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, a vapor cigarette or any other product name or descriptor.

“Electronic cigarette product” means any substance containing nicotine and/or a liquid solution meant to be vaporized using an electronic cigarette, including any product or formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body. “Electronic cigarette product” includes cartridges filled with inhalable dose of a flavored liquid solution that may or may not contain nicotine or any other item designed to be heated to release flavored vapor to be inhaled by the user.

“Employee” means any person who is employed by any employer in consideration for direct or indirect monetary wages or profit, and any person who volunteers his or her services for a nonprofit entity or public agency.

“Employer” means any person, partnership, corporation or nonprofit entity, including a municipal corporation or other public agency, who employs the services of one or more persons.

“Enclosed” means all space between a floor and ceiling which is enclosed on all sides by solid walls or windows (exclusive of door or passage ways) which extend from the floor to the ceiling, including all spaces therein screened by partitions which do not extend to the ceiling or are not solid, office landscaping or similar structures.

“Landlord” means any person or agent of a person who owns, manages, or is otherwise legally responsible for a unit in a multi-unit residence that is leased to a residential tenant, except that “landlord” does not include a tenant who sublets a unit (e.g., a sublessor).

“Multi-unit residence” means property containing two or more units, including, but not limited to, rental complexes, condominium complexes, senior and assisted living facilities, and long-term health care facilities. Multi-unit residences do not include the following:

(1) A hotel or motel that meets the requirements of Cal. Civ. Code § 1940(b)(2);

(2) A mobile home park;

(3) A campground;

(4) A marina or port;

(5) A single-family home, except if used as a child care or health care facility subject to licensing requirements; and

(6) A single-family home with a detached or attached in-law or accessory dwelling unit permitted pursuant to Cal. Gov’t Code § 65852.1, 65852.150, 65852.2 or an ordinance of the city adopted pursuant to those sections, except if the single-family home or in-law/accessory dwelling unit is used as a child care or health care facility subject to licensing requirements.

“New unit” means a unit that is issued a certificate of occupancy after February 1, 2017.

“Person” means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity, including government agencies.

“Place of employment” means any area under the control of a public or private employer which employees normally frequent during the course of employment, including, but not limited to, work areas, employee lounges and restrooms, conference rooms and classrooms, cafeterias and hallways.

“Public place” means any area to which the public is invited or in which the public is permitted, including but not limited to banks, educational facilities, health facilities, public transportation facilities, reception areas, restaurants, retail food production and marketing establishments, retail service establishments, retail stores, theaters and waiting rooms.

“Recreational area” means any area that is owned or operated by the city of Fremont and open to the general public for recreational purposes, regardless of any fee or age requirement. The term “recreational area” includes, but is not limited to, parks, water parks, picnic areas, playgrounds, sports fields, golf courses, walking paths, gardens, hiking trails, bike paths, horseback riding trails, swimming pools, roller- and ice-skating rinks, and skateboard parks.

“Rental complex” means a multi-unit residence with two or more units and for which 50 percent or more of units are let by or on behalf of the same landlord.

“Retail tobacco store” means a retail store that derives 60 percent or more of its gross sales receipts from the sale of electronic cigarettes, electronic cigarette products, tobacco or smoking products, and/or tobacco or smoking accessories.

“Service area” means any area designed to be or regularly used by one or more persons who are waiting for or receiving service of any kind, whether or not such service includes the exchange of money, including, for example, ATMs, bank teller windows, ticket lines, bus stops, waiting rooms, and cab stands.

“Smoking” means (1) inhaling, exhaling, burning or carrying any lighted pipe, cigar, cigarette, hookah pipe, water pipe, or similar article of any kind or (2) the use of an electronic cigarette.

“Tobacco product” means any product containing, made, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means. “Tobacco product” includes, but is not limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, snuff, snus, electronic cigarettes or electronic cigarette products. “Tobacco product” does not include a product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product and is being marketed and sold solely for that approved purpose.

“Unit” means personal dwelling space, even where lacking cooking facilities or private plumbing facilities, and includes any associated exclusive-use enclosed area or unenclosed area, such as, for example, a private balcony, porch, deck, or patio. “Unit” includes, but is not limited to, an apartment; a condominium; a townhouse; a room in a long-term health care facility, assisted living facility, or hospital; a hotel or motel room; a room in a single room occupancy (“SRO”) facility; a room in a homeless shelter; a mobile home; a camper vehicle or tent; a single-family home; and an in-law or second unit.

“Work area” or “workplace” means any area of a place of employment, including outdoor construction sites, where two or more employees are assigned to perform work for an employer. (Ord. 23-2012 § 1, 12-4-12; Ord. 10-2014 § 1, 3-4-14; Ord. 24-2015 § 6, 12-15-15; Ord. 28-2016 § 1, 12-6-16. 1990 Code § 4-6102.)

8.55.040 Application of smoking chapter in city-owned facilities.

All buildings, vehicles and other facilities owned by the city of Fremont shall be subject to the provisions of this chapter. (Ord. 23-2012 § 1, 12-4-12. 1990 Code § 4-6103.)

8.55.050 Prohibition of smoking in public places.

(a) Smoking shall be prohibited in the following places within the city of Fremont except as provided in Section 8.55.080:

(1) All enclosed areas of buildings, which are public places or which are places of employment.

(2) All common areas, enclosed and unenclosed, in multi-unit residential buildings, including but not limited to rental complexes, condominiums, retirement facilities, and mobile home parks; provided, that a person with legal control over a multi-unit residence common area, such as, for example, a landlord, may establish a portion of the unenclosed area of the rental complex common area as the designated smoking area if that area does not fall into another category of this section.

(3) In motor vehicles which meet one of the following conditions:

(A) Common carrier for public transit;

(B) Vehicles for hire, such as taxicabs;

(C) Vehicles which are operated in the course of employment for the use of more than one person at a time during the time of employment.

(4) Service areas.

(5) Outdoor dining areas.

(6) Stadiums, amphitheaters and similar places of assembly which are open to the sky.

(7) Private hotel and motel rooms rented to guests, except that up to 40 percent of such rooms may be designated for smoking guests. To the greatest extent feasible the smoke-free rooms shall be grouped together and separated from rooms where smoking is permitted.

(8) Private residences when used as family day care homes or health care facilities.

(9) Public places, when being used for a public event, including a farmers’ market, parade, craft fair, festival, or any other event which may be attended by the general public; provided, that smoking is permitted on streets and sidewalks being used in a traditional capacity as pedestrian or vehicular thoroughfares, unless otherwise prohibited by this chapter or other law.

(10) Recreational areas.

(11) Commercial area sidewalks.

(12) Within 25 feet of any entrance, exit, operational window, or air intake vent to any building where smoking is prohibited.

(b) Notwithstanding any other provisions of this section, any owner, operator, manager or other person who controls any establishment or area described in this section may declare that entire establishment or area as nonsmoking. (Ord. 23-2012 § 1, 12-4-12. 1990 Code § 4-6104.)

8.55.060 Regulation of smoking in places of employment.

It shall be the responsibility of employers to provide a smoking-free workplace for all employees. (Ord. 23-2012 § 1, 12-4-12; Ord. 10-2014 § 2, 3-4-14. 1990 Code § 4-6105.)

8.55.065 Smoking restrictions in new units of multi-unit residences.

Smoking is prohibited in all new units of a multi-unit residence, including any associated exclusive-use enclosed areas or unenclosed areas, such as, for example, a private balcony, porch, deck, or patio. Smoking in a new unit of a multi-unit residence, on or after February 1, 2017, is a violation of this chapter. (Ord. 28-2016 § 2, 12-6-16.)

8.55.070 Duties of a landlord of a rental complex.

A landlord of a rental complex shall provide to every prospective tenant, prior to entering into a new lease or other rental agreement for the occupancy of a unit in a rental complex, a copy of a document describing each designated smoking and nonsmoking unit with an accompanying diagram depicting the location of smoking and nonsmoking units in relation to all other units and any designated smoking areas and the landlord’s policy for handling complaints regarding smoking. A landlord shall not be liable to any person for a tenant’s breach of smoking regulations if the landlord has fully complied with the disclosure provisions of this chapter. (Ord. 23-2012 § 1, 12-4-12. 1990 Code § 4-6106.)

8.55.075 Required and implied terms for all new units in multi-unit residences.

(a) Every lease or other rental agreement for the occupancy of a new unit in a multi-unit residence, entered into, renewed, or continued month-to-month after February 1, 2017, shall include the provisions set forth below on the earliest possible date when such an amendment is allowable by law when providing the minimum legal notice.

(1) A clause providing that it is a material breach of the agreement to allow or engage in smoking in the new unit, including exclusive-use areas, such as balconies, porches, or patios.

(2) A clause providing that it is a material breach of the agreement for the tenant or any other person subject to the control of the tenant to engage in smoking in any common area of the multi-unit residence other than a designated smoking area.

(3) A clause providing that it is a material breach of the agreement for the tenant or any other person subject to the control of the tenant to violate any law regulating smoking while anywhere on the property.

(4) A clause expressly conveying third-party beneficiary status to all occupants of the multi-unit residence as to the smoking provisions of the lease or other rental agreement.

(b) Every covenant, condition and restriction (CC&R) applicable to new units in a multi-unit residence adopted, entered into, or renewed after February 1, 2017, shall include the conditions set forth below.

(1) A clause providing that it is a material breach of the CC&Rs to allow or engage in smoking in the new unit, including exclusive-use areas, such as balconies, porches, or patios.

(2) A clause providing that it is a material breach of the CC&Rs for an occupant or any other person subject to the control of the occupant to engage in smoking in any common area of the multi-unit residence other than a designated smoking area.

(3) A clause providing that it is a material breach of the CC&Rs for an occupant or any other person subject to the control of the occupant to violate any law regulating smoking while anywhere on the property.

(4) A clause expressly conveying third-party beneficiary status to all occupants of the multi-unit residence as to the smoking provisions of the CC&Rs.

(c) Whether or not a landlord or a homeowners’ association complies with subsections (a) and (b) of this section, respectively, the clauses required by the subsections shall be implied and incorporated by law into every agreement to which subsection (a) of this section applies and every CC&R to which subsection (b) of this section applies and shall become effective as of the earliest possible date on which the landlord could have made the insertions pursuant to subsection (a) of this section or the homeowners’ association could have adopted the CC&Rs.

(d) An occupant who breaches a smoking provision of a lease or other rental agreement for the occupancy of a new unit or the CC&Rs in a multi-unit residence, or who knowingly permits any other person subject to the control of the occupant or present by invitation or permission of the occupant, shall be liable for the breach to (1) the landlord or the homeowners’ association; and (2) any occupant of the multi-unit residence who is exposed to smoke or who suffers damages as a result of the breach.

(e) This chapter shall not create additional liability for a landlord or homeowners’ association to any person for an occupant’s breach of any smoking provision in a lease or other rental agreement for the occupancy of a new unit or CC&Rs in a multi-unit residence if the landlord and homeowners’ association has fully complied with this section.

(f) Failure to enforce any smoking provision required by this chapter shall not affect the right to enforce such provision in the future, nor shall a waiver of any breach constitute a waiver of any subsequent breach or a waiver of the provision itself. (Ord. 28-2016 § 3, 12-6-16.)

8.55.080 Where smoking not regulated.

(a) Notwithstanding any provisions of Sections 8.55.040 through 8.55.065 to the contrary, the following areas shall not be subject to the smoking restrictions of this chapter:

(1) Single-family homes, except when used as a family day care home or a health care facility. Single-family homes include townhomes and row homes.

(2) Retail tobacco stores.

(3) Private assembly rooms, while these places are being used for private functions or other functions where smoking is allowed under this chapter.

(4) Private membership organizations, including fraternal orders, service organizations and private clubs.

(5) On a stage in a theater or amphitheater during a performance or lecture when smoking is part of the performance or lecture.

(b) Notwithstanding any other provision of this section, any owner, operator, manager or other person who controls any establishment described in this section may declare that entire establishment as a nonsmoking establishment. (Ord. 23-2012 § 1, 12-4-12; Ord. 28-2016 § 4, 12-6-16. 1990 Code § 4-6107.)

8.55.090 Posting of signs.

(a) “No Smoking” signs, with letters of not less than one inch in height, or the international “No Smoking” symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it), or the same information in another format approved by the city manager, shall be clearly, sufficiently and conspicuously posted outside every building or other place where smoking is prohibited by this chapter, including outdoor areas, by the owner, operator, manager or other person having control of such building or other parts.

(b) “No Smoking within 25 feet” signs shall be conspicuously posted at every entrance or exit to any building where smoking is prohibited.

(c) The city may, but is not obligated to, prepare and make publicly available signage called for by this chapter and may, but is not obligated to, post signs on city maintained sidewalks and other outdoor areas where smoking is prohibited under this chapter. The city manager shall have discretion to determine when to post signs.

(d) Any ashtray located in a no smoking area must have a sign conspicuously posted within one foot of the ashtray with letters of two inches or more in height stating “Smoking Prohibited By Law – Extinguish Here.” Ashtrays shall not be located within 25 feet of an entrance or exit to any building that is open to the public, including licensed child or adult care facilities. (Ord. 23-2012 § 1, 12-4-12. 1990 Code § 4-6108.)

8.55.100 Tobacco samples prohibited.

No person shall knowingly distribute, furnish without charge or cause to be furnished without charge, for a commercial purpose, cigarettes, electronic cigarettes, electronic cigarette products or tobacco products, or coupons for cigarettes, electronic cigarettes, electronic cigarette products or tobacco products, at any event open to the public or in any public place, including but not limited to any public way, any mall or shopping center, park, playground or any property owned by the city or any other public agency, except in a retail tobacco store. (Ord. 23-2012 § 1, 12-4-12; Ord. 10-2014 § 3, 3-4-14. 1990 Code § 4-6109.)

8.55.110 Tobacco vending machines prohibited.

No cigarette, electronic cigarette, electronic cigarette products or tobacco product may be sold, offered for sale or distributed by or from a vending machine or other appliance, or similar device designed or used for vending purposes. (Ord. 23-2012 § 1, 12-4-12; Ord. 10-2014 § 4, 3-4-14. 1990 Code § 4-6110.)

8.55.115 Sale of tobacco products.

(a) Any establishment or person that sells tobacco products shall comply with local, state, and/or federal laws regarding sales, advertising, use, and display of tobacco products.

(b) Any establishment or person that sells tobacco products shall prominently post near the cash register or other point of sale the legal age to purchase tobacco products and check the identification of purchasers to ensure they are of legal age.

(d) Self-service display of tobacco products is prohibited, except in retail tobacco stores. Self-service display means the open display of tobacco products in a manner that is physically accessible in any way to the general public without the assistance of the retailer or employee of the retailer and a direct person-to-person transfer between the purchaser and the retailer or employee of the retailer.

(e) No person who is younger than the minimum age established by state or federal law for the purchase or possession of tobacco products shall engage in the sale of such products. (Ord. 24-2015 § 7, 12-15-15.)

8.55.120 Smoking and smoke generally.

For all purposes within the jurisdiction of the city of Fremont, nonconsensual exposure to smoke and/or vapor from electronic cigarettes occurring on or drifting into residential property is a nuisance, and the uninvited presence of smoke and/or vapor from electronic cigarettes on residential property is a nuisance and a trespass. Any affected property owner or legal tenant may bring a civil action to enforce a violation of this nuisance provision contained in this section. Any plaintiff in such lawsuit need not prove damages. (Ord. 23-2012 § 1, 12-4-12; Ord. 10-2014 § 5, 3-4-14. 1990 Code § 4-6111.)

8.55.130 Enforcement.

(a) Enforcement shall be implemented by the city manager, the enforcement officer named in Section 1.15.050(b)(3)(G) (power of arrest), Chapter 1.15 (penalty provisions), and/or any other persons designated by the city manager to administer and enforce the provisions of this chapter.

(b) Any citizen who desires to register a complaint hereunder may initiate enforcement with the enforcement officer set forth in subsection (a) of this section.

(c) Any owner, manager, operator or employer of any establishment controlled by this chapter shall have the duty to inform persons violating this chapter of the appropriate provisions thereof.

(d) Notwithstanding any other provision of this chapter, a private citizen may bring legal action to enforce this chapter. (Ord. 23-2012 § 1, 12-4-12. 1990 Code § 4-6112.)

8.55.140 Violations and penalties.

(a) It shall be unlawful for any person who owns, manages, operates or otherwise controls the use of any premises subject to regulation under this chapter to fail to ensure compliance with its provisions.

(b) It shall be unlawful for any person to engage in smoking in any area designated nonsmoking under the provisions of this chapter or as prohibited by law.

(1) A fine, not exceeding $100.00, for the first violation;

(2) A fine, not exceeding $200.00, for a second violation of this chapter within one year;

(3) A fine, not exceeding $500.00, for each additional violation of this chapter within one year. (Ord. 23-2012 § 1, 12-4-12; Ord. 10-2014 § 6, 3-4-14. 1990 Code § 4-6113.)

8.55.150 Nonretaliation.

No person or employer shall discharge, refuse to hire, or in any manner retaliate against any employee or applicant for employment because such employee or applicant exercises any rights afforded by this chapter. (Ord. 23-2012 § 1, 12-4-12. 1990 Code § 4-6114.)

8.55.160 Adopt regulations.

The city manager shall be authorized to adopt all necessary regulations to implement this chapter. (Ord. 23-2012 § 1, 12-4-12. 1990 Code § 4-6115.)

8.55.170 Other applicable laws.

This chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws. (Ord. 23-2012 § 1, 12-4-12. 1990 Code § 4-6116.)