Chapter 6.84
REGULATION OF SMOKING
Sections:
6.84.010 Findings and purpose.
6.84.030 Regulation of smoking in places accessible to the general public.
6.84.040 Regulation of smoking at multifamily residential properties.
6.84.050 Prohibition against permitting smoking.
6.84.070 Power to adopt more restrictive smoking policies.
6.84.090 Enforcement and penalties.
Prior legislation: SCC 0927.
6.84.010 Findings and purpose.
The city council finds as follows:
A. The purpose of this chapter is to protect the public health and welfare by regulating smoking in public places and places of employment, and to strike a reasonable balance between the desires of persons who smoke and the need of nonsmokers to breathe smoke-free air, as air pollution caused by smoking is an offensive annoyance, irritant, public nuisance, and health hazard. Where these interests are in conflict, the need to breathe smoke-free air shall have priority.
B. Numerous studies have found that tobacco smoke, including secondhand smoke, is a major contributor to indoor air pollution and a significant health hazard and carcinogen to smokers and nonsmokers, and the number of nonsmokers is steadily increasing in this region.
C. Employees subject to prolonged exposure to smoke in the workplace have been found in scientifically conducted studies to experience a loss of job productivity and have been forced to take periodic sick leave due to reactions to secondhand smoke.
D. The U.S. Food and Drug Administration conducted laboratory analysis of electronic cigarette samples and found them to contain carcinogens and toxic chemicals to which users and bystanders could potentially be exposed, suggesting that the same health and public nuisance concerns present with conventional cigarettes exist with electronic cigarettes. [Ord. 13-2014 § 3; Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 0810 § 2, 1990; SCC 610 § 2, 1984. Formerly 6.84.000].
6.84.020 Definitions.
A. “Bar” means an area in which the serving of food is only incidental to the consumption of alcoholic beverages and where no persons under the age of 18 years are allowed to enter except to travel to the restroom facilities. The term “bar” shall not include an adjacent restaurant dining area when meals are being served.
B. “Business” means any sole proprietorship, partnership, joint venture, corporation or other business entity formed for profit-making purposes, including retail establishments where goods and services are sold, as well as professional corporations and other entities under which professional services are delivered.
C. “Child care facilities” means any family day care home regulated by Sections 1597.30 through 1597.621 of the California Health and Safety Code, and any day care center for children regulated by Section 1596.90 et seq. of the California Health and Safety Code. It does not include foster homes or residential child care facilities.
D. “Cigarette” means any roll for smoking, made wholly or in part of tobacco, irrespective of size or shape and irrespective of whether the tobacco is flavored, adulterated or mixed with any other ingredient, where such roll has a wrapper or cover made of paper or any other material, except where such wrapper is wholly or in the greater part made of tobacco and such roll weighs over three pounds per thousand, as defined in Revenue and Taxation Code Section 30003, as it may be subsequently amended or superseded.
E. “Dining area” means any area, including streets and sidewalks, that is available to or commonly used by the general public or an employee and which is designated, established or regularly used for the consumption of food or drink.
F. “E-cigarette” or “electronic cigarette” or “electronic smoking device” means any device that may be used to deliver any aerosolized or vaporized substance to the person inhaling from the device, including, but not limited to, an e-cigarette, e-cigar, vape pen, or e-hookah. “E-cigarette,” “electronic cigarette,” or “electronic smoking device” includes any component, part, or accessory of the device, and also includes any substance that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine. “E-cigarette,” “electronic cigarette,” or “electronic smoking device” does not include drugs, devices, or combination products authorized for sale by the United States Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act.
G. “Employee” means any person who is employed by an employer for direct or indirect monetary wages or profit, including those employed full-time, part-time, temporary or contracted for from a third party; “employee” also means any person who performs services as a volunteer or intern for a business or nonprofit entity.
H. “Employer” means any person, business, corporation, entity, partnership, municipal corporation or agency, or nonprofit entity which employs the services of one or more persons, and includes the city.
I. “Enclosed” means closed in by a roof and three or more connected, floor-to-ceiling walls with appropriate openings for ingress and egress.
J. “Multifamily residential property,” for purposes of this chapter, means residential property containing two or more total units with one or more shared walls, floors or ceilings, including but not limited to rental complexes, apartments, residential cooperatives, condominium complexes, senior citizen residences, assisted living complexes and skilled nursing facilities. “Multifamily residential property” does not include:
1. A hotel or motel that meets the requirements of Section 1940(b)(2) of the Civil Code;
2. A mobile home park;
3. A campground;
4. A single-family residence;
5. A single-family home with a detached in-law or second unit when permitted pursuant to a city ordinance and/or applicable state law.
K. “Mall” means enclosed public walkway or hall area which serves to connect retail or professional establishments, whether publicly or privately owned.
L. “Nonprofit entity” means any corporation, unincorporated association or other entity created for charitable, philanthropic, educational, character-building, political, social or other similar purposes, the net proceeds from the operation of which are not for private financial gain. A public agency is not a nonprofit entity within the meaning of this chapter.
M. “Open space” means any lot or area of land or water essentially or partially unimproved and set aside, dedicated, designated or reserved for public use or enjoyment, or for the use and enjoyment of owners and occupants of land adjoining or neighboring such open space.
N. “Place of employment” means any enclosed area under the control of a public, nonprofit, 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, vehicles, taxis, employee cafeterias or eating places, and hallways. A private residence is not a place of employment for the purposes of this chapter, unless it is used as a child care or health care facility, or unless it is used for a permitted home occupation having one or more employees, or which is visited by the public twice a month or more.
O. “Private club” means any eating establishment, organization, club, boardinghouse or guesthouse which gives or offers food for sale to the public, guests, patrons or employees, as well as kitchens in which food is prepared on the premises for serving elsewhere, including catering functions, except that the term “restaurant” shall not include bars.
P. “Recreational area” means any area that is publicly owned or controlled and open to the general public for recreational purposes. The term “recreational area” includes but is not limited to parks, picnic areas, playgrounds, sports fields, open space, walking paths, gardens, hiking trails, bike paths, riding trails, swimming pools, skateboard parks, and ice-skating rinks, but does not include golf courses.
Q. “Service area” means any publicly or privately owned area, including streets and sidewalks, that is designated to be used or is regularly used by one or more persons to wait for or receive a service or make a transaction, whether or not such service or transaction involves the exchange of money. The term “service area” includes automated teller machine waiting areas, all bus stops, light rail stops, and other local public transit facilities.
R. “Smoke” means the gases, particles or vapors released into the air by combustion, electronic ignition or vaporization when the apparent or usual purpose of the combustion, electronic ignition or vaporization is human inhalation of the resulting combustion products, including but not limited to tobacco smoke, cigarette smoke, marijuana smoke, and gases, aerosol or vapor released by the ignition of e-cigarettes or electronic smoking devices. “Smoke” does not include the product of combustion of incense or similar products when used solely for olfactory purposes and not containing tobacco or nicotine.
S. “Smoking” means inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, pipe, hookah, or any other lighted or heated tobacco or plant product intended for inhalation, including marijuana, whether natural or synthetic, in any manner or in any form. “Smoking” includes the use of an electronic smoking device which creates an aerosol or vapor, in any manner or in any form, or the use of any oral smoking device for the purpose of circumventing the prohibition of smoking.
T. “Sports arena” means any sports pavilion, gymnasium, health spa, boxing arena, swimming pool, roller rink, ice rink, bowling alley, pool hall, and other similar places where members of the general public assemble to engage in physical exercise, participate in athletic competition, or witness sports events.
U. “Tobacco product” means:
1. Any product containing, made of, or derived from tobacco or nicotine, whether natural or synthetic, that is intended for human consumption or is likely to be consumed, whether inhaled, absorbed, or ingested by any other means, including, but not limited to, a cigarette, a cigar, pipe tobacco, chewing tobacco, snuff, or snus;
2. Any electronic smoking device and any substances that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine; or
3. Any component, part, or accessory of subsection (U)(1) or (2) of this section, whether or not any of these contains tobacco or nicotine, including but not limited to filters, rolling papers, blunt or hemp wraps, hookahs, mouthpieces, and pipes.
“Tobacco product” does not mean drugs, devices, or combination products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act.
V. “Unenclosed area” means any area that is not an enclosed area.
W. “Work area” or “workplace” means any area of a place of employment enclosed by floor-to-ceiling walls in which two or more employees are assigned to perform work for an employer. [Ord. 10-2022 § 3 (Exh. A); Ord. 14-2020 § 2; Ord. 13-2014 § 3; Ord. 9-2014 §§ 2 – 4; Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 0810 § 2, 1990; SCC 610 § 2, 1984. Formerly 6.84.010, 6.84.015, 6.84.024, 6.84.041, 6.84.045, 6.84.055].
6.84.030 Regulation of smoking in places accessible to the general public.
This chapter shall not be interpreted to permit smoking where it is otherwise restricted by other applicable laws.
A. Smoking shall be prohibited in the following public places and other public places similarly situated in the city, including but not limited to the following areas:
1. All enclosed areas available to and customarily used by the general public and all areas of business establishments generally accessible to the public, including but not limited to the public areas of retail stores, banks, and other offices;
2. Elevators, escalators, and stairways;
3. Public restrooms;
4. Service areas;
5. Buses, light rail, and other means of public transit;
6. All reception and waiting areas;
7. Galleries, libraries and museums;
8. Within any facility which is primarily used for or designed for the primary purpose of exhibiting any motion picture, stage drama, lecture, musical recital or other similar performance, except when smoking is part of a stage production;
9. Sports arenas and convention halls;
10. Video arcades, bingo parlors, card rooms, game rooms, pool halls, dance halls, and other amusement centers;
11. Child day care facilities as defined in the California Health and Safety Code and private residences used as family day care homes;
12. Rooms, chambers or other enclosed areas where a meeting is being held which is or can be attended by the general public;
13. Retail food marketing establishments, including grocery stores and supermarkets;
14. Restaurants, including those in private clubs;
15. Restaurant/bar combinations, including those in private clubs;
16. Bars, including those in private clubs;
17. Theater/bar combinations;
18. Laundromats;
19. Beauty shops and parlors;
20. Malls;
21. Polling places;
22. Enclosed areas which share air space, including but not limited to air conditioning, heating, or other ventilation systems, entries, doorways, hallways, and stairways, with other enclosed areas in which smoking is prohibited unless specific regulations are otherwise established by this code;
23. Places of employment;
24. Hotel lobbies and at least 55 percent of guestroom accommodations in a hotel, motel, or similar transient lodging establishment;
25. Government buildings and facilities;
26. Smoking shall be prohibited in the following public unenclosed and outdoor areas, and smoking, except while passing on the way to another destination, shall be prohibited within 20 feet of or close enough to the following areas for smoke to travel into an area or building where smoking is prohibited, whichever is greater:
a. Public events, including but not limited to sports events, farmers’ markets, festivals, concerts, entertainment, speaking performances, ceremonies, pageants and fairs,
b. Dining areas provided by eating establishments and bars, including outdoor patio areas,
c. Entrances and exits to enclosed public areas,
d. Within the entryway of any enclosed public area,
e. Stairways,
f. Within courtyards and other areas where air circulation may be impeded by architectural, landscaping or other barriers,
g. Areas not open to the sky,
h. Any place where people are using or waiting for a service, entry or transaction, including but not limited to ATMs, bank teller windows, telephones, ticket lines, bus stops and cab stands,
i. Any place where food and/or drink is offered for sale and within 20 feet of such place,
j. Children’s play areas,
k. Public gardens,
l. Open windows of any enclosed public area,
m. Plazas, and
n. Parks, open space, trails, and recreation areas.
B. RCMC 23.919.100 shall establish the regulations for smokers’ lounges, hookah bars, and vapor and e-cigarette lounges and bars. [Ord. 1-2016 § 5; Ord. 13-2014 § 3; Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 0810 § 2, 1990; SCC 610 § 2, 1984. Formerly 6.84.060].
6.84.040 Regulation of smoking at multifamily residential properties.
A. Owners and property managers of multifamily properties may adopt policies imposing stricter smoking regulations than those enacted by this chapter.
B. Smoking is prohibited inside and outside all multifamily residential properties, except in designated smoking area(s) as defined by subsection (D) of this secction. A multifamily residential property unit with an existing lease agreement as of the effective date of the ordinance codified in this section is exempt from this prohibition until the date the existing lease agreement expires or 12 months after the effective date of the ordinance codified in this section, whichever is sooner.
C. Smoking is prohibited within indoor common areas at multifamily residential properties. “Indoor common areas” means any indoor areas on the property which residents of more than one unit are entitled to enter and/or use, including, but not limited to, halls, lobbies, courtyards, elevators, stairs, community rooms, gym or health facilities, indoor swimming pool areas, storage areas, shared restrooms, shared laundry rooms, shared cooking facilities, and shared eating areas.
D. Owners or property managers may designate a common area or areas of a multifamily residential property as a designated smoking area(s); provided, that the designated smoking area(s) comply with the following requirements:
1. Shall be located more than 30 feet away from any operable entrance/doorway, window, playground, pool, or other nonsmoking communal area used by residents;
2. Shall not include, and shall be at least 30 feet from, unenclosed areas primarily used by children and unenclosed areas with improvements that facilitate physical activity, including playgrounds, swimming pools, and school campuses;
3. Shall be an unenclosed area;
4. Shall be marked by conspicuous signage clearly denoting the area as a designated smoking area; and
5. Shall have receptacles designed for and primarily used for disposal of tobacco waste and shall be maintained free of tobacco-related litter including but not limited to cigarette butts.
E. Owners or property managers of multifamily residential properties within the city must disclose to all rental applicants the city’s multifamily residential property smoking prohibition. [Ord. 14-2020 § 3; Ord. 13-2014 § 3].
6.84.050 Prohibition against permitting smoking.
No person, landlord, or employer shall knowingly permit smoking in an area which is under his or her legal or de facto control and in which smoking is prohibited by this chapter, unless otherwise required by state or federal law. [Ord. 13-2014 § 3].
6.84.060 Posting of signs.
A. Each owner, operator, manager or other person having control of an establishment or facility within which smoking is regulated by this chapter shall conspicuously post in every place where smoking is prohibited “No Smoking” signs (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), whichever are appropriate, with letters not less than one inch in height.
B. An owner, operator, or manager of a building wherein, pursuant to these regulations, there is no smoking permitted in any space in the building may limit the “No Smoking” postings to first floor entrances and exits and to the elevator lobby areas of all other floors.
C. Motels and hotels will prominently post in the lobby a sign notifying patrons of the availability of nonsmoking accommodations. The rooms so designated will be posted as nonsmoking rooms and ashtrays will be removed. [Ord. 13-2014 § 3; Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 0810 § 2, 1990; SCC 610 § 2, 1984. Formerly 6.84.155].
6.84.070 Power to adopt more restrictive smoking policies.
Notwithstanding any other provisions of this chapter, any owner, operator, manager, employer, or other person who controls any establishment or place of employment regulated by this chapter may adopt policies relating to smoking which are more restrictive than those provided herein. [Ord. 13-2014 § 3].
6.84.080 No retaliation.
No person, employer, nonprofit entity, business, or entity shall intimidate, threaten any reprisal, or effect any reprisal, for the purpose of retaliating against another person who seeks to attain compliance with this chapter. [Ord. 13-2014 § 3; Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 0810 § 2, 1990. Formerly 6.84.160].
6.84.090 Enforcement and penalties.
A. 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. The remedies provided in this chapter are not intended to preclude any other remedy available in law or equity.
B. Any violation of this chapter is hereby declared to be a public nuisance, and may be charged as such through the applicable sections of the RCMC.
C. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter.
D. Penalty. Notwithstanding the provisions of RCMC 1.01.190 or any provision of this section, a violation of any of the provisions of this title, or failure to comply with any of the regulatory requirements of this title, is an infraction. A fourth violation of this title within a 12-month period may constitute a misdemeanor pursuant to RCMC 1.01.190(F)(2).
Any person, whether as a principal or agent, employer or employee, who violates any of the provisions of this title, or the rules and regulations of the city manager or his or her designee, or health, law, or code enforcement officer established pursuant to the provisions of this title is, upon conviction, guilty of an infraction.
Every infraction violation of this title is punishable by:
1. A fine not exceeding $100.00 for a first violation;
2. A fine not exceeding $200.00 for a second violation of the same ordinance provisions within one year;
3. A fine not exceeding $500.00 for each additional violation of the same ordinance provision within one year, unless such offense is charged as a misdemeanor.
E. In addition to other remedies provided by this chapter or by other law, any violation of this chapter may be remedied by an administrative or civil action brought by the city attorney or city prosecutor, including but not limited to administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.
F. Any person acting for the interests of himself or herself, itself, its members, or the general public (hereinafter “private enforcer”) may bring a civil action in any court of competent jurisdiction, including small claims court, to enforce this chapter against any person who has violated this chapter two or more times. Upon proof of the violations, a court shall grant all appropriate relief, including: (1) awarding damages and (2) issuing an injunction or a conditional judgment. If there is insufficient or no proof of actual damages for a specific violation, the court shall award $150.00 for each violation as statutory damages.
1. Notwithstanding any other provision of this chapter, a private enforcer may bring a civil action to enforce this chapter only if the following requirements are met:
a. The private enforcer’s civil action is begun more than 60 days after the private enforcer has given written notice of the alleged violations of this chapter to the city attorney and to the alleged violator.
b. On the date the private enforcer’s civil action is filed, no other person acting on behalf of the city has commenced or is prosecuting an administrative, civil, or criminal action based, in whole or in part, upon any violation which was the subject of the private enforcer’s notice.
c. A private enforcer shall provide a copy of his, her, or its action to the city attorney within seven days of filing it.
2. Upon a settlement or judgment based, in whole or in part, upon any violation which was the subject of the private enforcer’s notice, the private enforcer shall give the city attorney notice of the settlement or judgment and final disposition of the case within 30 days of the date of the settlement or judgment. No settlement by a private enforcer of a violation of this chapter shall be valid or enforceable if, within 30 days of receiving notice of the settlement, the city attorney determines the settlement to be unreasonable in light of the purposes of this chapter. Any settlement or judgment that does not meet the requirements of this subsection may be set aside upon motion to a court of competent jurisdiction by the city attorney.
G. 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 private parties. [Ord. 13-2014 § 3; revised during 2008 codification; Ord. 21-2003 §§ 2, 4; Ord. 20-2003 §§ 2, 4; SCC 0810 § 2, 1990; SCC 610 § 2, 1984. Formerly 6.84.175].