Chapter 19B
SMOKING POLLUTION CONTROL1
Sections:
19B.3 Smoking regulated—Places of employment.
19B.5 Enforcement and penalties.
19B.6 Smoking prohibited—Multi-unit housing.
19B.1 Definitions.
These definitions are not intended to be used in interpretation of the city’s Zoning Code or any other provisions of the Gilroy City Code except as used in this chapter. The following words and phrases, whenever used in this chapter, shall be construed as follows:
“Bar” means any area or a room utilized primarily for the sale of intoxicating liquors for consumption by guests on the premises and in which the sale of food and the provision of entertainment are merely incidental to the sale of intoxicating liquors.
“Common area” means every area of a multi-unit residence that residents of more than one (1) unit are entitled to enter or use, including, but not limited to, halls, pathways, lobbies, courtyards, elevators, stairs, community rooms, playgrounds, gym facilities, swimming pools, parking garages, parking lots, grassy or landscaped areas, restrooms, laundry rooms, cooking areas, and eating areas.
“Employee” means any person who is employed by an employer in consideration for direct or indirect monetary wages or profit.
“Employer” means any person who employs the services of an individual person.
“Enclosed area” means an area in which outside air cannot circulate freely to all parts of the area, and includes an area that has any type of overhead cover whether or not that cover includes vents or other openings and at least three (3) walls or other vertical boundaries of any height whether or not those boundaries include vents or other openings; or four (4) walls or other vertical boundaries that exceed six (6) feet in height whether or not those boundaries include vents or other openings.
“Multi-unit residence” means property containing two (2) or more attached units, including, but not limited to, apartment buildings, condominiums, duplexes and triplexes, attached single-family homes, 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 California Civil Code Section 1940(b)(2);
(2) A mobile home park;
(3) A campground; and
(4) A detached single-family home with or without an attached or detached accessory dwelling unit, junior accessory dwelling unit, or second unit.
“Open to the public” means available for use by or accessible to the general public during the normal course of business conducted by either private or public entities.
“Park” means a park, playground, swimming pool, recreation center or any other area in the city, owned or used by the city and devoted to active or passive recreation, with the exception that “park” does not include the Gilroy Municipal Golf Course, Gilroy Gardens, or Christmas Hill Park during the Gilroy Garlic Festival.
“Person” means any natural person, business, cooperative association, nonprofit entity, personal representative, receiver, trustee, assignee, or other legal entity including government agencies.
“Public event” means any event which may be open to or attended by the general public, including a farmer’s market, parade, craft fair, or similar event. Public events may be located within an enclosed or unenclosed area to which the public is invited or in which the public is permitted. Smoking is permitted on streets and sidewalks being used in a traditional capacity as pedestrian or vehicular thoroughfares, unless it is being used in association with a public event, or otherwise prohibited by this chapter or other law. The prohibition of smoking at public events includes the full area permitted or identified as the boundaries of the public event, plus a reasonable distance area from the boundary of the event, as defined in this chapter.
“Reasonable distance” means a distance of twenty-five (25) feet in any direction from any doorway, window opening, crack, or vent of any area where smoking is prohibited under this chapter. Nothing in this definition shall limit or reduce the minimum smoking prohibition distance requirements for any publicly owned or utilized building or structure, subject to state or federal regulations.
“Restaurant” means any coffee shop, cafeteria, short order cafe, luncheonette, tavern, cocktail lounge, sandwich stand, soda fountain, private school cafeteria or eating establishment, and any other eating establishment, organization, club (including veterans club), boarding house, or guesthouse, the primary function of which is to give, sell or offer for sale food to the public, guests, patrons, or employees, except that the term “restaurant” shall not include a tavern or a cocktail lounge if said tavern or cocktail lounge is a bar as defined in this section.
“Smoke” or “smoking” means and includes inhaling or exhaling upon, burning or carrying any lighted smoking equipment for tobacco, or any other plant or product used for the personal habit commonly known as smoking.
“Unenclosed area” means any area that is not an enclosed area.
“Unit” means a personal dwelling space, even one lacking cooking facilities or private plumbing facilities, and includes any associated exclusive-use area, such as a private balcony, porch, deck, or patio. “Unit” includes, without limitation, an apartment; a condominium; a townhouse; a room in a senior facility; a room in a long-term health care facility, assisted living facility, community care facility, or hospital; a room in a hotel or motel; a dormitory room; a room in a single-room occupancy facility; a room in a homeless shelter; a mobile home; a camper vehicle or tent; a single-family home; and an accessory dwelling unit, junior accessory dwelling unit, or second unit. (Ord. No. 95-3, 1-23-95; Ord. No. 2012-09, § 1, 6-18-12; Ord. No. 2023-02, § 2, 2-27-23)
19B.2 Smoking prohibited.
Labor Code Section 6404.5 prohibits smoking in enclosed places of employment (as defined in that code section) in the State of California. In addition, pursuant to Labor Code Section 6404.5, local governments retain the right to adopt and implement stricter anti-smoking requirements than are imposed pursuant to Labor Code Section 6404.5, including the right to regulate and prohibit smoking in any area not defined as a place of employment or in which smoking is not regulated pursuant to Labor Code Section 6404.5. This chapter is intended to supplement the provisions of Labor Code Section 6404.5. All places within the city shall be subject to the provisions of Labor Code Section 6404.5, as such section may be amended or recodified from time to time. In addition, smoking is prohibited in all of the following places within the city:
(1) Outdoor Eating Areas. Fifty percent (50%) of outdoor eating areas for all restaurants, which shall be reserved for nonsmokers.
(2) Elevators. Elevators in buildings generally open to and used by the public, including elevators in apartment buildings, irrespective of the number of living units in such apartment buildings.
(3) Hospitals and Health Care Facilities. Every public and private health care facility including, but not limited to, hospitals, clinics, and physicians’ and dentists’ offices; provided, that smoking is permitted in patient smoking areas of long-term health care facilities, as defined in Section 1418 of the Health and Safety Code.
(4) Places of Public Assembly. Hearing rooms or places of public assembly owned by the city or in which the business of the city, or any of its boards or commissions, is conducted.
(5) Public Lobbies, Public Hallways. Waiting rooms, lobbies and public hallways of every building under direct or indirect control of the city.
(6) Museums, Libraries, Galleries. All museums, libraries and galleries.
(7) Designated Nonsmoking Areas. Any area of any business, governmental or charitable establishment which has been designated by the owner or person in charge of such establishment as a nonsmoking area and marked with a nonsmoking sign or signs. Exceptions set forth later in this chapter shall not apply to this subsection.
(8) Public Restrooms. Public restrooms.
(9) Parks. Parks grounds and parking lot(s).
(10) Public events as defined in section 19B.1.
(11) Multi-unit housing as regulated by section 19B.6. (Ord. No. 95-3, 1-23-95; Ord. No. 2012-09, § 2, 6-18-12; Ord. No. 2021-01, § 1, 3-1-21; Ord. No. 2023-02, § 3, 2-27-23)
19B.3 Smoking regulated—Places of employment.
Within ninety (90) days after the effective date of this chapter, each employer shall adopt, implement, make known and maintain a written smoking policy consistent with all of the provisions of this chapter and with the provisions of Labor Code Section 6404.5.
(1) In any dispute arising under the smoking policy, the rights of the nonsmoker shall be given precedence.
(2) The smoking policy shall be communicated to all employees within three (3) weeks after its adoption, and at least yearly thereafter.
(3) All employers shall supply a written copy of the smoking policy to any prospective employee who so requests. Employers shall also furnish all signs required to implement the smoking policy for their business. (Ord. No. 95-3, 1-23-95)
19B.4 Posting of signs.
(a) Posting of signs shall be the responsibility of the owner, operator, manager or other person having control of any place where smoking is prohibited by this chapter.
(b) “No Smoking” signs with letters of not less than one (1) 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) shall be clearly, sufficiently and conspicuously posted in every room, building or other place where smoking is regulated by this chapter, including, but not limited to, all entrances, all restrooms and all elevators. Signs of equivalent size and character reading “Smoking Permitted” may be posted where legally applicable. Alternative means of notification (individual place cards, etc.) may be employed, provided they are equivalent to the aforementioned signs in their effect. All other signs required by this chapter shall be posted within ninety (90) days after the effective date of this chapter.
(c) The absence of signs prohibiting smoking or permitting smoking in designated areas shall not be a defense to a violation of any provision of this chapter. (Ord. No. 95-3, 1-23-95; Ord. No. 2012-09, § 3, 6-18-12)
19B.5 Enforcement and penalties.
(a) Enforcement of this chapter and Labor Code Section 6404.5 shall be carried out by the city administrator of the city or his/her designee. During business license renewal, the finance department of the city shall require from any establishment which comes under the provisions of this chapter or Labor Code Section 6404.5 a self-certification from the owner, manager, operator, or other person having control of such establishment, that all requirements of this chapter and Labor Code Section 6404.5 have been complied with in such form required by the city from time to time. Any owner, manager, operator, or other person having control of such establishment shall respond to the city’s request for certification within sixty (60) days after said request. Failure to self-certify shall be grounds to deny said business license, and initiate proceedings for violation of this chapter. Any owner, manager, operator, or employee of any establishment shall have the right to inform persons violating this chapter of the appropriate provisions thereof.
(b) Any person violating any of the provisions of this chapter shall be guilty of an infraction punishable according to city and state codes. (Ord. No. 95-3, 1-23-95)
19B.6 Smoking prohibited—Multi-unit housing.
(a) Beginning April 1, 2023, smoking is prohibited and no person shall smoke inside any new or existing unit of a multi-unit residence, in any enclosed or unenclosed common area of a multi-unit residence, or within a reasonable distance of any operable doorway, window, opening, or vent of a multi-unit residence.
(b) Smoking is prohibited in multi-unit residences as provided in subsection (a) of this section, except that a person with legal control over a common area, or authorized representative, may designate a portion of the common area as a designated smoking area; provided, that at all times the designated smoking area complies with subsection (c) of this section.
(c) Designated Smoking Areas in Multi-unit Residences. A designated smoking area shall:
(1) Be an unenclosed area;
(2) Be a reasonable distance from unenclosed areas primarily used by children and unenclosed areas with improvements that facilitate physical activity including, for example, playgrounds, tennis courts, swimming pools, and school campuses;
(3) Be a reasonable distance in any direction from any operable doorway, window, opening or other vent into an enclosed area that is located at the multi-unit residence and is a nonsmoking area;
(4) Be a reasonable distance in any direction from a nonsmoking area and/or any operable doorway, window, opening or other vent into an enclosed area of adjacent private property;
(5) Have a clearly marked perimeter;
(6) Have a receptacle for cigarette butts that is emptied and maintained; and
(7) Be identified by conspicuous signs.
(d) Smoking is prohibited in adjacent unenclosed property within a reasonable distance in any direction of any doorway, window, opening, or other vent into an enclosed area of a multi-unit residence.
(e) Common Areas Free From Smoking Waste. Persons with legal control over common areas in multi-unit residences, and their authorized representatives, shall ensure that all common areas except those meeting the requirements of subsection (c) of this section remain free of smoking and tobacco waste, and ash trays, ash cans, or other receptacles designed for or primarily used for disposal of smoking and tobacco waste.
(f) Signage. “No smoking” signs shall be posted as required by section 19B.4 but are not required inside any unit of a multi-unit residence. Signs shall be maintained by the person or persons with legal control over the common areas or the authorized representative of such person.
(g) Lease Terms. Every lease or other rental agreement for the occupancy of a new or existing unit in a multi-unit residence entered into, renewed, or continued month-to-month after April 1, 2023, shall include the following:
(1) A clause providing that it is a material breach of the agreement to smoke or allow smoking:
a. In the Unit, including exclusive-use areas such as balconies, porches, or patios; and
b. In any common area of the multi-unit residence other than a designated smoking area.
(2) A description of and/or image depicting the location(s) of any designated smoking area(s) on the property, if any.
(3) 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. Such a clause shall provide that any tenant of the multi-unit residence may sue another tenant/owner to enforce the smoking provisions of the agreement but that no tenant shall have the right to evict another tenant for a breach of the smoking provisions of the agreement.
(h) Whether or not a landlord complies with subsection (g) of this section, the clauses required by that subsection shall be implied and incorporated by law into every agreement to which subsection (g) 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 (g) of this section.
(i) Other Requirements and Prohibitions.
(1) No person shall dispose of used smoking waste within the boundaries of an area in which smoking is prohibited by this chapter.
(2) The presence of smoking waste receptacles in violation of subsection (i)(1) of this section or the absence of signs shall not be a defense to a violation of any provision of this chapter.
(3) Each instance of smoking in violation of this chapter shall constitute a separate violation. For violations other than smoking, each day of a continuing violation of this chapter shall constitute a separate violation.
(j) Violation—Penalty.
(1) For violations of this section, the remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity. Except as otherwise provided, enforcement of this chapter is at the sole discretion of the city. Nothing in this chapter shall create a right of action in any person against the city or its agents to compel public enforcement of this chapter against any party.
(2) Any person who violates any of the provisions of this section shall be guilty of an infraction and upon conviction thereof shall be punished as provided in section 1.7 or, in the alternative, subject to enforcement action pursuant to section 6A.13, Administrative citation.
(3) Any violation of this section is hereby declared to be a public nuisance.
(4) In addition to other remedies provided by this section or otherwise available at law or in equity, any violation of this section may be remedied by a civil action brought by the city attorney, including, without limitation, administrative or judicial nuisance abatement proceedings, civil code enforcement proceedings, and suits for injunctive relief.
(5) Owners, operators, property managers, and officers of homeowners’ associations for residential properties, whether rental or owner-occupied, are required to post signs in accordance with section 19B.4 and provide notice to residents or tenants of the requirements of this chapter. Owners, operators, and property managers of rental property must include the requirements of subsection (g) of this section in their leases or other rental agreements. If the owners, operators, property managers, and officers of rental property and homeowners’ associations for residential properties have satisfied these requirements, they shall not be responsible for violations of the requirements of this chapter by tenants or residents, guests, or invitees of tenants or residents. (Ord. No. 2023-02, § 4, 2-27-23)
Prior legislation: Ord. Nos. 86-18 and 93-4.