Chapter 8.36
NO-SMOKING REGULATIONS
Sections:
8.36.010 Purpose and findings.
8.36.030 Regulation of smoking in city-owned facilities.
8.36.040 Prohibition of smoking in designated enclosed places.
8.36.050 Regulation of smoking in places of employment.
8.36.060 Smoking—Optional areas.
8.36.070 Smoking or ingestion of cannabis products.
8.36.110 Other applicable laws.
8.36.010 Purpose and findings.
The city council finds that:
A. Numerous studies have found that tobacco smoke is a major contributor to indoor air pollution; and
B. Reliable studies have shown that breathing sidestream or secondhand smoke is a significant 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
C. Health hazards induced by breathing sidestream or secondhand smoke include lung cancer, respiratory infection, decreased exercise tolerance, decreased respiratory function, bronchoconstriction, and bronchospasa; and
D. Nonsmokers with allergies or respiratory diseases and those who suffer other ill effects of breathing sidestream or secondhand smoke may experience a loss of job productivity or may be forced to take periodic sick leave because of adverse reactions to same; and
E. The smoking or vaping of tobacco, or any other weed or plant or substance, is a proven danger to health; and
F. Third-hand smoke is a potential health hazard as harmful residues from tobacco smoke can be absorbed by and cling to virtually all indoor surfaces long after smoking has stopped and then be emitted back into the air.
Accordingly, it has been determined that the health, safety and general welfare of the residents of, persons employed in, and persons who frequent this city would be benefited by the regulation of smoking in designated enclosed places, including places of employment. (Ord. 2020-003 § 2, 2020; Ord. 85-009 § 1 (part), 1985)
8.36.020 Definitions.
The following words and phrases, whenever used in this chapter, shall be construed as hereafter set out, unless it shall be apparent from the context that they have a different meaning.
“Bar” means an area which is devoted to the serving of alcoholic beverages and in which the service of food is only incidental to the consumption of such beverages.
“Cannabis” shall have the same meaning as “cannabis” in Health and Safety Code Section 11018, and the same meaning as “cannabis” in Business and Professions Code Section 26001(f). This definition includes but is not limited to all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, whether growing or not; the seeds thereof; the resin, whether crude or purified, extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin.
“Common area” means every enclosed area and every unenclosed area of a multi-unit residence that residents of more than one 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.
“Electronic smoking device” means an electronic device which can be used to deliver an inhaled dose of flavored tobacco, nicotine or other substance, including any component, part or accessory of such a device, whether or not sold separately. “Electronic smoking device” includes any such device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, e-cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or descriptor.
“Employee” means any person who is employed by any employer in consideration for direct or indirect monetary wages or profit.
“Employer” means any person, partnership, corporation, including municipal corporation, who employs the services of more than three persons.
“Enclosed” means all space between a floor and ceiling where the space is closed in on all sides by solid walls or windows that extend from the floor to the ceiling. An enclosed space may have openings for ingress and egress, such as doorways or passageways. An enclosed space includes all areas within that space, such as hallways and areas screened by partitions that do not extend to the ceiling or are not solid.
“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. For purposes of this chapter, a tenant who sublets their unit (e.g., a sublessor) is not a landlord.
“Place of employment” means any enclosed 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, conference rooms, and employee cafeterias. A private residence is not a place of employment.
“Reasonable distance” means a distance of at least twenty-five feet in any direction from an area in which smoking is prohibited.
“Rental multi-unit residence” means, except as specifically excluded below, any rental residential property containing two or more units with one or more shared or abutting walls, floors, ceilings or shared ventilation systems, each with its own kitchen and bathroom facilities. A rental multi-unit residence does not include the following:
1. A detached single-family residence;
2. A single-family home with a detached or attached in-law accessory dwelling unit permitted pursuant to Section 17.60.070, Accessory dwelling units;
3. Condominiums and townhomes that are separately owned;
4. A hotel or motel that meets the requirements of California Civil Code Section 1940(b)(2); or
5. A mobile home park.
“Smoke” means the gases, particles, or vapors released into the air as a result of combustion, electrical ignition, or vaporization when the apparent or usual purpose of the combustion, electrical ignition, or vaporization is human inhalation of the byproducts of the combustion, ignition or vaporization, except when the combusting or vaporizing material contains no tobacco or nicotine and the purpose of inhalation is solely olfactory, such as, for example, smoke from incense. The term “smoke” includes, but is not limited to, tobacco smoke, vapors from an electronic device, and cannabis smoke.
“Smoking” means inhaling, exhaling, burning, or carrying any lighted, heated, or ignited cigar, cigarette, cigarillo, pipe, hookah, electronic smoking device, or any other device that delivers nicotine or other substances to a person. (Ord. 2020-003 §§ 3, 4, 2020; Ord. 85-009 § 1 (part), 1985)
8.36.030 Regulation of smoking in city-owned facilities.
All enclosed facilities owned by the city shall be subject to the provisions of this chapter. (Ord. 85-009 § 1 (part), 1985)
8.36.040 Prohibition of smoking in designated enclosed places.
Smoking shall be prohibited in the following places within the city:
A. All enclosed areas available to and customarily used by the general public and all businesses patronized by the public, including, but not limited to, retail stores, hotels and motels, pharmacies, banks, attorneys’ offices and other offices;
B. Within all restaurants having an occupied capacity of fifty or more persons, provided, however, that this prohibition does not prevent (1) the designating of a contiguous area within the restaurant that contains no more than sixty percent of the seating capacity of the restaurant as a smoking area, or (2) the providing of separate rooms designated as smoking rooms, so long as said rooms do not contain more than sixty percent of the seating capacity of the restaurant;
C. Waiting rooms, hallways, wards, and semiprivate rooms of health facilities, including, but not limited to, hospitals, clinics, physical therapy facilities, doctors’ offices and dentists’ offices, except that health facilities shall also be subject to the provisions of Section 8.36.050 regulating smoking in places of employment;
D. Elevators, public restrooms, indoor service lines, buses, taxicabs and other means of public transit under the authority of the city, while within the boundaries of the county, and in ticket, boarding and waiting areas of public transit depots; provided, however, that this prohibition does not prevent (1) the establishment of separate waiting areas for smokers and nonsmokers, or (2) the establishment of at least forty percent of a given waiting area as a nonsmoking area;
E. In public areas of museums, galleries;
F. Enclosed theaters, auditoriums, and halls which are used for action pictures, stage dramas and musical performances, ballets or other exhibitions, except when smoking is part of any such production;
G. Retail food marketing establishments, including grocery stores and supermarkets, except those areas of such establishments set aside for the purpose of serving of food and drink, restrooms and offices, and areas thereof not open to the public, which may be otherwise regulated by this chapter;
H. Public schools and other public facilities under the control of another public agency, which are available to and are customarily used by the general public, to the extent that the same are subject to the jurisdiction of the city;
I. 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 no-smoking establishment. (Ord. 85-009 § 1 (part), 1985)
8.36.045 Prohibition of smoking in and around rental multi-unit residence as defined by this chapter.
A. Smoking shall be prohibited in and around rental multi-unit residences, as defined in this chapter, within the city as indicated in this section.
B. New Rental Multi-Unit Residences. In every new rental multi-unit residence that receives a certificate of occupancy after the effective date of this section, one hundred percent of the units (including private outdoor spaces associated with such units, such as balconies, patios and decks), shall be nonsmoking units with no smoking permitted in the unit.
C. In every existing rental multi-unit residence that received a certificate of occupancy before the effective date of the ordinance codified in this section, one hundred percent of the units (including private outdoor spaces associated with such units, such as balconies, patios and decks), shall be nonsmoking units with no smoking permitted in the unit by July 1, 2021.
1. A person with legal control over a rental multi-unit residence, such as a landlord or homeowners’ association, may make units nonsmoking prior to July 1, 2021.
2. Landlords shall, by July 1, 2020, notify each existing and new tenant of its implementation schedule and plan for complying with this chapter.
D. No Smoking Common Areas—Designated Smoking Area.
1. Smoking is prohibited in all rental multi-unit residence common areas except that a person with legal control over a multi-unit residence common area, such as a landlord or property manager, may designate a portion of the outdoor area of the premises as a smoking area provided in subsection (D)(2) of this section.
2. A designated smoking area:
a. Must be located a reasonable distance from any indoor area where smoking is prohibited by this chapter or other law unless twenty-five feet is not feasible;
b. Must not include, and must be a reasonable distance from, outdoor areas primarily used by children including, but not limited to, areas improved or designated for play or swimming;
c. Must be no more than twenty-five percent of the total outdoor area of the premises for which it is designated;
d. Must have a clearly marked perimeter;
e. Mist be identified by conspicuous signs; and
f. Must not overlap with any areas in which smoking is otherwise prohibited by this chapter or other provisions of this code, state law or federal law.
E. Required Lease Terms. Every lease or other agreement for the occupancy of a unit in a new rental multi-unit residence and every lease or other agreement for the occupancy of a unit in an existing rental multi-unit residence as of July 1, 2021, shall include:
1. A clause stating that smoking is prohibited in the unit;
2. A clause stating that it is a material breach of the lease or agreement to (a) violate any law regulating smoking while on the premises; (b) smoke in the unit; or (c) smoke in any multi-unit residence common area where smoking is prohibited; and
3. A clause stating that all occupants of the rental multi-unit residence are express third-party beneficiaries of the above required clauses.
F. Notice and Signage. “Smoking” or “No Smoking” signs, whichever are appropriate, 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), shall be conspicuously posted in every building or other place where smoking is regulated by this chapter by the owner, operator, manager or other person having control of the building or other place.
1. For new rental multi-unit residences, the signs shall be installed prior to the issuance of a certificate of occupancy.
2. For existing rental multi-unit residences, the signs shall be installed no later than July 1, 2021. This section does not require the posting of “No Smoking” signs inside or on the doorway of any dwelling unit in a multi-unit residence as defined by this chapter.
G. Enforcement and Penalties. Any person, including a legal entity or organization acting for the interests of itself, its members, or the general public, may bring a civil action to enforce this section by way of a conditional judgment or an injunction to prevent future such violations and may sue to recover such actual or statutory damages as he or she may prove. (Ord. 2020-003 § 5, 2020)
8.36.050 Regulation of smoking in places of employment.
A. It shall be the responsibility of employers to provide smoke-free areas for nonsmokers within existing facilities to the maximum extent possible, but employers are not required to incur any expense to make structural or other physical modifications in providing these areas.
B. Within ninety days of the effective date of the ordinance codified in this chapter, each employer and each place of employment located within the city shall adopt, implement, make known and maintain a written smoking policy, which shall contain at a minimum the following requirements:
1. Prohibition of smoking in conference and meeting rooms, classrooms, auditoriums, restrooms, medical facilities, hallways, and elevators.
2. Any employee in a place of employment shall be given the right to designate his or her immediate work area as a nonsmoking area and to post the same with an appropriate sign or signs, to be provided by the employer. The policy adopted by the employer shall include a reasonable definition of the term “immediate work area.”
a. In any dispute arising under this smoking policy, the rights of the nonsmoker shall be given precedence.
b. Provision and maintenance of a separate and contiguous no-smoking area of not less than forty percent of the seating capacity and floor space in cafeterias, lunchrooms and employee lounges.
C. The smoking policy shall be communicated to all employees within three weeks of its adoption, and at least annually thereafter.
D. Notwithstanding the provisions of subsection A of this section, every employer shall have the right to designate any place of employment, or portion thereof, as a no-smoking area. (Ord. 85-009 § 1 (part), 1985)
8.36.060 Smoking—Optional areas.
Notwithstanding any other provision of this chapter to the contrary, the following areas shall not be subject to the smoking restrictions of this chapter:
A. A hotel or motel that meets the requirements of California Civil Code Section 1940(b)(2).
B. Retail stores that deal exclusively in the sale of tobacco and smoking paraphernalia.
C. Restaurants, hotel and motel conference or meeting rooms, and public and private assembly rooms while these places are being used for private functions.
D. A private enclosed place occupied exclusively by smokers, even though such a place may be visited by nonsmokers, and a private enclosed office, excepting places in which smoking is prohibited by the fire department or by any other law, ordinance or regulation. (Ord. 2020-003 § 5, 2020: Ord. 85-009 § 1 (part), 1985)
8.36.070 Smoking or ingestion of cannabis products.
Smoking and ingestion of cannabis, as defined in Section 17.62.130, are limited strictly to locations permitted by Health and Safety Code Section 11362.3 and are prohibited at any location where tobacco smoking is prohibited by the city of San Pablo Municipal Code. Smoking or ingestion of cannabis is prohibited in buildings or property owned, leased, or occupied by the city. (Ord. 2020-002 § 32, 2020: Ord. 2017-005 § 8, 2017)
8.36.090 Penalties.
A. It is unlawful for any person who owns, manages, operates or otherwise controls the use of any premises subject to the restrictions of this chapter to fail to: properly post signs required by this chapter; provide signs for the use of employees in designating their areas; properly set aside “No Smoking” areas; adopt a smoking restriction policy; or comply with any other requirements of this chapter.
B. It is unlawful for any person to smoke in any area restricted by the provisions of this chapter.
C. Any person/business who violates subsections A or B of this section, or any other provisions of this chapter, shall be guilty of an infraction, punishable by:
1. A fine, not exceeding one hundred dollars for first violation;
2. A fine, not exceeding two hundred dollars for a second violation of this chapter within one year;
3. A fine, not exceeding five hundred dollars for each additional violation of this chapter within one year. (Ord. 85-009 § 1 (part), 1985)
8.36.100 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. 85-009 § 1 (part), 1985)
8.36.110 Other applicable laws.
This chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws. (Ord. 85-009 § 1 (part), 1985)