Chapter 12.28
CLEAN INDOOR AIR AND HEALTH PROTECTION
Sections:
12.28.030 City-owned vehicles and facilities.
12.28.040 Prohibition of smoking in public places, places of employment, and certain other areas.
12.28.050 Nonsmoking buffer zones.
12.28.060 Smoking restrictions in all units of multi-unit residences.
12.28.070 Nonsmoking designations for existing units of a common interest complex.
12.28.080 Nonsmoking designations for existing units of a rental complex.
12.28.090 Required and implied lease terms for all new and existing units in rental complexes.
12.28.110 Procedures and requirements for mandated submissions.
12.28.120 Smoking prohibited by law in units and common areas.
12.28.130 Smoking and smoke generally.
12.28.140 Other requirements and prohibitions.
12.28.150 Smoking prohibitions, violations and penalties.
12.28.160 Other applicable laws.
12.28.180 Governmental agency cooperation.
12.28.190 Licensing of tobacco retailers and tobacco sale restrictions.
12.28.010 Title.
This chapter shall be known as the indoor air and health protection regulations. [Ord. 03-2023 § 2 (Att. A), 2023; Ord. 1264 § 2, 2018; Ord. 1207 § 2, 2012; Ord. 1085 § 2, 1994. Formerly 12.28.001.]
12.28.020 Definitions.
The following words and phrases, whenever used in this chapter, shall be construed as defined in this section:
A. “Bar” means an area which is devoted to the serving of alcoholic beverages for consumption by patrons on the premises and in which the serving of food is incidental to the consumption of such beverages. Although a restaurant may contain a bar, the term “bar” shall not include the restaurant dining area.
B. “Business” means any sole proprietorship, joint venture, corporation or other business entity formed for profit making purposes.
C. “City” shall mean the City of Sausalito.
D. “Common area” means every area of a multi-unit residence that residents of more than one unit of that multi-unit residence are entitled to enter or use, including, for example, halls and paths, lobbies and courtyards, elevators and stairs, community rooms and playgrounds, gym facilities and swimming pools, parking garages and parking lots, shared restrooms, shared laundry rooms, shared cooking areas, and shared eating areas.
E. “Common interest complex” means a multi-unit residence that is a condominium project, a community apartment project, a stock cooperative, or a planned development as defined by California Civil Code Section 1351.
F. “Dining area” means any area, including streets and sidewalks, which is available to or customarily used by the general public or an employee, and which is designed, established, or regularly used for consuming food or drink.
G. “Electronic smoking device” means an electronic or battery-operated device that can be used to deliver an inhaled dose of nicotine or that delivers vapors for inhalation of any other tobacco or cannabis based substance. This term shall include every variation and type of such devices whether they are manufactured, distributed, marketed or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah or any other similar product name or descriptor.
H. “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.
I. “Employer” means any person, partnership, corporation, including a municipal corporation, or nonprofit entity, which employs the services of one or more individual persons or utilizes volunteers.
J. “Enclosed area” means all space between a floor and ceiling which is enclosed on all sides by solid walls or windows (exclusive of door or passageways) which extend from the floor to the ceiling, including all space therein screened by portions which do not extend to the ceiling or are not solid, such as “office landscaping” or similar structures.
K. “Landlord” means any person who owns property let for residential use, any person who lets residential property, and any person who manages such property, except that “landlord” does not include a master tenant who sublets a unit as long as the master tenant sublets only a single unit of a multi-unit residence.
L. “Marina” means any area used for the docking of boats or other floating vessels. This includes all docks, piers and docked boats, vessels and house boats.
M. “Minor” shall mean any individual who is less than 18 years old.
N. “Multi-unit common area” means any indoor or outdoor area of a multi-unit residence, multi-unit commercial facilities, senior citizen residences and nursing homes accessible to and usable by residents of different small units and/or members of the public, including but not limited to halls and paths, lobbies, laundry rooms, common areas, outdoor eating areas, play areas and swimming pools.
O. “Multi-unit residence” means property containing two or more units, including, for example, rental complexes, common interest complexes, senior citizen residences, nursing homes, and marinas or ports. “Multi-unit residence” does not include the following specifically excluded types of housing:
1. A hotel or motel that meets the requirements set forth in California Civil Code Section 1940(b)(2);
2. A mobile home park;
3. A campground;
4. A single-family home; and
5. A single-family home with a detached or attached in-law unit, second unit, accessory dwelling unit, or junior accessory dwelling unit when permitted pursuant to California Government Code Section 65852.1, 65852.150, 65852.2 or 65852.22.
P. “New unit” means a unit that is issued a certificate of occupancy/final inspection more than 180 days after August 30, 2012, and also means a unit that is let for residential use for the first time more than 180 days after August 30, 2012.
Q. “Nonprofit entity” means any corporation, unincorporated association or other entity created for charitable, philanthropic, educational, character-building, political, social, religious or other similar purposes, the net proceeds from the operations of which are committed to the promotion of the objectives or purposes of the entity and not to private gain. A public agency is not a “nonprofit entity” within the meaning of this section.
R. “No smoking sign” means a sign containing the words “No Smoking” or the international “No Smoking” symbol (consisting of a pictorial representation of a burning cigarette in a red circle or red heart with a red bar across it).
S. “Openings” shall include main entrances, exits, operable windows and ventilation intake systems.
T. “Person” shall mean any individual, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee, or any other legal entity.
U. “Place of employment” means any area under the legal or de facto control of an employer that an employee or the general public may have cause to enter in the normal course of operation, regardless of the hours of operation, including, but not limited to, indoor and outdoor work areas, construction sites, vehicles used in employment or for business purposes, taxis, employee lounges and restrooms, conference and banquet rooms, employee cafeterias, warehouses, long-term health care facilities, and lobbies and hallways. A private residence is not a “place of employment” unless it is used as a child care or health care facility.
V. “Premises” means a piece of land and any improvements upon it such as is usually described in a deed, deed of trust or mortgage, and includes legally separate but contiguous pieces of land that are owned by the same natural person or by legal persons under common control.
W. “Public place” means any place, publicly or privately owned, which is open to the general public regardless of any fee or age requirement.
X. “Reasonable distance” means a distance of 20 feet in any direction from an area in which smoking is prohibited.
Y. “Recreational area” means any area that is publicly or privately owned 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, picnic areas, playgrounds, sports fields, golf courses, walking paths, gardens, hiking trails, bike paths, horseback riding trails, swimming pools, roller- and ice-skating rinks, skateboard parks, amusement parks, and beaches.
Z. “Rental complex” means a multi-unit residence for which 50 percent or more of units are let by or on behalf of the same landlord.
AA. “Retail tobacco store” means a retail store utilized primarily for the sale of tobacco products and accessories and in which the sale of other products is merely incidental.
BB. “Self-service merchandising” means open display of tobacco products and point-of-sale tobacco promotional products to which the public has access without the intervention of an employee.
CC. “Service area” means any publicly or privately owned area, including streets and sidewalks, that is designed 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 but is not limited to information kiosks, automatic teller machines (ATMs), ticket lines, bus stops or shelters, transit shelters, ferry terminals, mobile vendor lines or cab stands.
DD. “Smoke” means the gases and particles released into the air by combustion when the apparent or usual purpose of the combustion is human inhalation of the resulting combustion products, such as, for example, tobacco smoke and cannabis smoke, except when the combusting material contains no tobacco or cannabis and the purpose of inhalation is solely olfactory, such as, for example, smoke from incense.
EE. “Smoking” means engaging in an act that generates smoke, such as, for example: possessing a lighted cigar, a lighted cigarette of any kind, a lighted pipe, or a lighted hookah pipe; or lighting a pipe, a hookah pipe, a cigar, or a cigarette of any kind or operating an electronic smoking device.
FF. “Sports arena” means enclosed or unenclosed sports pavilions, gymnasiums, health spas, swimming pools, roller and ice rinks, bowling alleys and other similar places where members of the general public assemble either to engage in physical exercise, participate in athletic competition, or witness sports events.
GG. “Tobacco paraphernalia” means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the smoking, preparation, storing, or consumption of tobacco products.
HH. “Tobacco product” means:
1. Any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, bidis, blunts, clove cigarettes, liquid electronic smoking device solution, or any other preparation of tobacco;
2. 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 by inhalation; but does not include any cessation product specifically approved by the U.S. Food and Drug Administration for use in treating nicotine or tobacco dependence; and
3. Any electronic smoking device as defined herein.
II. “Tobacco retailer” means any person who sells, offers for sale, or does or offers to exchange for any form of consideration tobacco, tobacco products, or tobacco paraphernalia. “Tobacco retailing” shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco products or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange.
JJ. “Tobacco vending machine” means any machine, appliance, or other mechanical device operated by currency, token, debit card, credit card, or any other form of payment that is designed or used for vending purposes, including, but not limited to, machines or devices that use remote control locking mechanisms.
KK. “Unenclosed area” means any area that is not an enclosed area.
LL. “Unit” means a 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 boat, vessel or houseboat; a single-family home; and an in-law, second unit or accessory dwelling unit.
MM. “Vendor-assisted” means only a store employee has access to the tobacco product and assists the customer to supply the product. The customer does not take possession of the product until it is purchased. [Ord. 03-2023 § 2 (Att. A), 2023; Ord. 1264 § 2, 2018; Ord. 1207 § 2, 2012; Ord. 1085 § 2, 1994.]
12.28.030 City-owned vehicles and facilities.
All City-owned vehicles, including jitneys and buses and other means of public transit under the authority of the City, and all enclosed facilities owned and controlled by the City, including jails or holding facilities, and any board, council, commission and agency of the City shall be subject to the provisions of this chapter. [Ord. 03-2023 § 2 (Att. A), 2023; Ord. 1264 § 2, 2018; Ord. 1207 § 2, 2012; Ord. 1085 § 2, 1994.]
12.28.040 Prohibition of smoking in public places, places of employment, and certain other areas.
A. Enclosed Areas. Smoking shall be prohibited in the following enclosed areas within the City of Sausalito except in places listed in subsection C of this section, and except in such places in which smoking is already prohibited by State or Federal law, in which case the State or Federal law applies:
1. Places of employment.
2. Public places.
3. Recreational areas.
4. Common areas.
B. Unenclosed Areas. Smoking shall be prohibited in the following unenclosed areas within the City of Sausalito except in such places in which smoking is already prohibited by State or Federal law, in which case the State or Federal law applies:
1. Places of employment.
2. Recreational areas.
3. Service areas.
4. Dining areas.
5. Common areas; provided, that a person with legal control over a common area may designate a portion of the unenclosed area of the common area as a designated smoking area if the area meets all of the following criteria:
a. The area must be located a reasonable distance from any unit or enclosed area where smoking is prohibited by this chapter or other law; by binding agreement relating to the ownership, occupancy, or use of real property; or by designation of a person with legal control over the property. In the case of a nonsmoking area created by agreement or designation, this provision does not apply unless the person designating the smoking area has actual knowledge of, or has been given notice of, the agreement or designation. A designated smoking area may require modification or elimination as laws change, as binding agreements are created, and as nonsmoking areas on neighboring property are established;
b. The area must not include, and must 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;
c. The area must be no more than 10 percent of the total unenclosed area of the multi-unit residence for which it is designated;
d. The area must have a clearly marked perimeter;
e. The area must be identified by conspicuous signs;
f. The area must be completely within an unenclosed area; and
g. The area must not overlap with any enclosed or unenclosed area in which smoking is otherwise prohibited by this chapter or other provisions of this code, State law, or Federal law.
6. Other 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.
C. Unless otherwise prohibited by law, smoking is not prohibited in the following enclosed areas:
1. Smoking is not prohibited in up to 20 percent of guestroom accommodations in a hotel, motel, bed and breakfast or similar transient lodging establishment if the hotel or motel permanently designates particular guestrooms as nonsmoking rooms such that 80 percent or more of guestrooms are permanently nonsmoking and ashtrays and matches are permanently removed from such nonsmoking rooms. Permanent no smoking signage shall be posted in nonsmoking guestrooms.
2. Smoking at theatrical production sites is not prohibited by this subsection if smoking is an integral part of the story and the use of a fake, prop, or special effect cannot reasonably convey the idea of smoking in an effective way to a reasonable member of the anticipated audience.
3. Smoking inside a retail tobacco store is not prohibited if:
a. The retail tobacco store does not sell edible products, including, for example, food, water, or drinks, or allow such products to be consumed on the business premises;
b. The retail tobacco store prohibits minors from entering the store at all times; and
c. The premises of the retail tobacco store are an independent freestanding building unattached to any other structure or use.
4. Smoking inside a detached, single-family home is not prohibited, except those used as a child care or health care facility subject to licensing requirements.
D. Notwithstanding any other provisions of this section, nothing in this chapter prohibits any person, landlord, employer, or nonprofit entity with legal control over any property or facility from declaring the entire property or facility as nonsmoking and prohibiting smoking on any part of such property or facility, even if smoking is not otherwise prohibited in that area. [Ord. 03-2023 § 2 (Att. A), 2023; Ord. 1264 § 2, 2018; Ord. 1207 § 2, 2012; Ord. 1085 § 2, 1994.]
12.28.050 Nonsmoking buffer zones.
A. Smoking in all unenclosed areas shall be prohibited within a reasonable distance from any doorway, window, opening, crack, or vent into an enclosed area in which smoking is prohibited, except while actively passing on the way to another destination and provided smoke does not enter any enclosed area in which smoking is prohibited.
B. Smoking in unenclosed areas shall be prohibited within a reasonable distance from any unenclosed areas in which smoking is prohibited under SMC 12.28.040(B), except while actively passing on the way to another destination and provided smoke does not enter any unenclosed area in which smoking is prohibited.
C. The prohibitions in subsections A and B of this section shall not apply to unenclosed areas of private residential properties that are not multi-unit residences.
D. Smoking is prohibited in unenclosed areas of a multi-unit residence, including balconies, porches, decks, and patios, within a reasonable distance from any doorway, window, opening, or other vent into an enclosed area where smoking is prohibited by this chapter or other law; by binding agreement relating to the ownership, occupancy, or use of real property; or by designation of a person with legal control over the property. [Ord. 03-2023 § 2 (Att. A), 2023; Ord. 1264 § 2, 2018; Ord. 1207 § 2, 2012.]
12.28.060 Smoking restrictions in all units of multi-unit residences.
A. All new units and existing units of a multi-unit residence are hereby designated nonsmoking units, including any associated exclusive-use enclosed areas or unenclosed areas, including but not limited to a private balcony, porch, deck, or patio; and including without limitation new units in a rental complex and new units in a common interest complex. All existing units in multi-unit residences shall be designated as nonsmoking units as of May 31, 2024; provided, that all units in a multi-unit residence that were required to be designated as nonsmoking units pursuant to Ordinance Nos. 1207 and 1264 at an earlier date shall continue to be designated as nonsmoking units.
B. Smoking in a designated nonsmoking unit is a violation of this chapter. [Ord. 03-2023 § 2 (Att. A), 2023; Ord. 1264 § 2, 2018; Ord. 1207 § 2, 2012.]
12.28.070 Nonsmoking designations for existing units of a common interest complex.
A. All units of a common interest complex that are existing units, including any associated exclusive-use enclosed areas or unenclosed areas, including but not limited to a private balcony, porch, deck, or patio, are hereby designated nonsmoking units as of May 31, 2024; provided, that all units in a common-interest development that were required to be designated as nonsmoking units pursuant to Ordinance Nos. 1207 and 1264 at an earlier date shall continue to be designated as nonsmoking units.
B. Smoking in a nonsmoking unit is a violation of this chapter. [Ord. 03-2023 § 2 (Att. A), 2023; Ord. 1264 § 2, 2018; Ord. 1207 § 2, 2012.]
12.28.080 Nonsmoking designations for existing units of a rental complex.
A. All existing units of a rental complex, including any associated exclusive-use enclosed areas or unenclosed areas, including but not limited to a private balcony, porch, deck, or patio, are hereby designated nonsmoking units as of May 31, 2024; provided, that all units in a rental complex that were required to be designated as nonsmoking units pursuant to Ordinance Nos. 1207 and 1264 at an earlier date shall continue to be designated as nonsmoking units.
B. Smoking in a designated nonsmoking unit is a violation of this chapter.
C. At least 60 days before May 31, 2024, the landlord shall provide each tenant with:
1. A written notice clearly stating that all units, including the tenant’s unit, are designated nonsmoking units and that smoking in a unit will be illegal as of May 31, 2024, as specified in this section; and
2. A copy of this chapter. [Ord. 03-2023 § 2 (Att. A), 2023; Ord. 1264 § 2, 2018; Ord. 1207 § 2, 2012.]
12.28.090 Required and implied lease terms for all new and existing units in rental complexes.
A. Every lease or other rental agreement for the occupancy of a unit in a rental complex of an existing unit newly designated as a nonsmoking unit as of May 31, 2024, shall include the provisions set forth in subsection B of this section on the earliest possible date when such an amendment is allowable by law when providing the minimum legal notice, indicating that smoking shall be prohibited as of May 31, 2024.
B. Every lease or other rental agreement for the occupancy of a unit in a rental complex designated as nonsmoking prior to May 31, 2024, shall include or be amended to include the following provisions:
1. A clause providing that it is a material breach of the agreement to allow or engage in smoking in the unit. Such a clause might state:
It is a material breach of this agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant or tenant’s guests to engage in or allow smoking in the unit.
2. A clause providing that it is a material breach of the agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to engage in smoking in any common area of the property other than a designated smoking area. Such a clause might state:
It is a material breach of this agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to engage in smoking in any common area of the property, except in an outdoor designated smoking area, if one exists.
3. A clause providing that it is a material breach of the agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to violate any law regulating smoking while anywhere on the property. Such a clause might state:
It is a material breach of this agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission 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 rental complex as to the smoking provisions of the agreement. Such a clause might state:
Other occupants of the property are express third-party beneficiaries of those provisions in this agreement that concern smoking. As such, other occupants of the property may seek to enforce such provisions by any lawful means, including by bringing a civil action in a court of law.
C. Whether or not a landlord complies with subsections A and B of this section, the clauses required by those subsections shall be implied and incorporated by law into every agreement to which subsection A or 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 or B of this section.
D. A tenant who breaches a smoking provision of a lease or other rental agreement for the occupancy of a unit in a rental complex, or who knowingly permits any other person subject to the control of the tenant or present by invitation or permission of the tenant, shall be liable for the breach to:
1. The landlord; and
2. Any occupant of the rental complex who is exposed to smoke or who suffers damages as a result of the breach.
E. This chapter shall not create additional liability in a landlord to any person for a tenant’s breach of any smoking provision in a lease or other rental agreement for the occupancy of a unit in a rental complex if the landlord has fully complied with this section and SMC 12.28.080.
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. 03-2023 § 2 (Att. A), 2023; Ord. 1264 § 2, 2018; Ord. 1207 § 2, 2012.]
12.28.110 Procedures and requirements for mandated submissions.
A. Documents maintained pursuant to this chapter must include all material and information required by this chapter as well as other materials and information as the City Manager or his or her designee deems necessary for the administration and enforcement of this chapter.
B. All documents maintained pursuant to this chapter shall be available for the City Manager or his or her designee to access and review during regular business hours or upon 24 hours’ written notice.
C. All materials and information maintained pursuant to this chapter and requested by the City Manager or his or her designee shall constitute disclosable public records and are not private or confidential. [Ord. 03-2023 § 2 (Att. A), 2023; Ord. 1264 § 2, 2018; Ord. 1207 § 2, 2012.]
12.28.120 Smoking prohibited by law in units and common areas.
A. Smoking in a common area, on or after August 30, 2012, other than in a designated smoking area established pursuant to SMC 12.28.040(B)(5), is a violation of this chapter.
B. Smoking in a new unit, on or after August 30, 2012, is a violation of this chapter.
C. Smoking in any designated nonsmoking unit is a violation of this chapter. [Ord. 03-2023 § 2 (Att. A), 2023; Ord. 1264 § 2, 2018; Ord. 1207 § 2, 2012.]
12.28.130 Smoking and smoke generally.
A. The provisions of this chapter are restrictive only and establish no new rights for a person who engages in smoking. Notwithstanding (1) any provision of this chapter or other provisions of this code, (2) any failure by any person to restrict smoking under this chapter, or (3) any explicit or implicit provision of this code that allows smoking in any place, nothing in this code shall be interpreted to limit any person’s legal rights under other laws with regard to smoking, including, for example, rights in nuisance, trespass, property damage, and personal injury or other legal or equitable principles.
B. Notwithstanding any other provision of this chapter, smoking marijuana for medical purposes as permitted by California Health and Safety Code Section 11362.7 et seq. in any unit of a multi-unit residence is not prohibited by this chapter; provided, that the marijuana smoke is not reasonably detectable. The City shall only enforce this section if:
1. A complaint is made by a resident of the multi-unit building that the marijuana smoke is detectable to him or her; and
2. The marijuana smoke is also detectable to law or code enforcement personnel. If the marijuana smoke is not detectable by the law or code enforcement personnel, this subsection does not preclude the resident from taking private enforcement action as provided in subsection C of this section.
Notwithstanding the foregoing, such use of marijuana may be prohibited by other provisions of this code, State law, or Federal law.
C. For all purposes within the jurisdiction of the City, nonconsensual exposure to smoke occurring on or drifting into residential property is a nuisance, and the uninvited presence of smoke on residential property is a nuisance and a trespass. Any person bringing a civil action to enforce the nuisance provision contained in this section need not prove an injury different in kind or in degree from injury to others to prove a violation of this chapter. [Ord. 03-2023 § 2 (Att. A), 2023; Ord. 1264 § 2, 2018; Ord. 1207 § 2, 2012.]
12.28.140 Other requirements and prohibitions.
A. No person, landlord, employer, or nonprofit entity shall knowingly permit smoking in an area which is under the legal or de facto control of the person, employer or nonprofit entity and in which smoking is prohibited by this chapter, unless otherwise required by State or Federal law.
B. No person, landlord, employer, or nonprofit entity shall knowingly or intentionally permit the presence or placement of ash receptacles, such as, for example, ashtrays or ash cans, within an area under the legal or de facto control of the person, landlord, employer or nonprofit entity and in which smoking is prohibited by law, including, without limitation, within a reasonable distance required by this chapter from any area in which smoking is prohibited. Notwithstanding the foregoing, the presence of ash receptacles in violation of this subsection shall not be a defense to a charge of smoking in violation of any provision of this chapter.
C. No person shall dispose of used smoking or tobacco product waste within the boundaries of an area in which smoking is prohibited, including inside the perimeter of any reasonable distance required by this chapter.
D. A person, landlord, employer, or nonprofit entity that has legal or de facto control of an area in which smoking is prohibited by this chapter shall post a clear, conspicuous and unambiguous “No Smoking” or “Smoke-Free” sign at each point of ingress to the area, and in at least one other conspicuous point within the area. No smoking signs are not required inside or at doorways of designated nonsmoking units. The signs shall have letters of no less than one inch in height and shall include 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). Signs posted on the exterior of buildings to comply with this section shall include the reasonable distance requirement set forth in SMC 12.28.040. At least one sign with a toll-free phone number where complaints can be directed must be conspicuously posted in each place in which smoking is prohibited. For purposes of this section, the City Manager or his/her designee shall be responsible for the posting of signs in regulated facilities owned or leased in whole or in part by the City. Notwithstanding this provision, the presence or absence of signs shall not be a defense to a charge of smoking in violation of any other provision of this chapter.
E. No person, landlord, employer, or nonprofit 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. Moreover, no person shall intentionally or recklessly expose another person to smoke in response to that person’s effort to achieve compliance with this chapter.
F. Each instance of smoking in violation of this chapter shall constitute a separate violation. For violations other than for smoking, each day of a continuing violation of this chapter shall constitute a separate violation. [Ord. 03-2023 § 2 (Att. A), 2023; Ord. 1264 § 2, 2018; Ord. 1207 § 2, 2012; Ord. 1085 § 2, 1994. Formerly 12.28.070.]
12.28.150 Smoking prohibitions, violations and penalties.
A. The remedies provided by this chapter are not intended to preclude any other remedy available at law or in equity. Remedies may be sought independently or cumulatively.
B. It is unlawful to cause, permit, aid, abet, or conceal a violation of any provision of this chapter.
C. It is unlawful for any person who owns, manages, operates or otherwise controls the use of any premises subject to regulation under this chapter to refuse to comply with any of its provisions, or to permit any employee or patron to violate this chapter.
D. It shall be unlawful for any person to smoke in any area where smoking is prohibited under this chapter.
E. 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 comply with any of its provisions.
F. Any person, business, tobacco retailer, or owner who violates provisions in SMC 12.28.030 through 12.28.140 shall be deemed guilty of an infraction, punishable by the administrative penalties as regulated in Chapter 1.10 SMC. [Ord. 03-2023 § 2 (Att. A), 2023; Ord. 1264 § 2, 2018; Ord. 1207 § 2, 2012; Ord. 1085 § 2, 1994. Formerly 12.28.100.]
12.28.160 Other applicable laws.
This chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws. [Ord. 03-2023 § 2 (Att. A), 2023; Ord. 1264 § 2, 2018; Ord. 1207 § 2, 2012; Ord. 1085 § 2, 1994. Formerly 12.28.140.]
12.28.170 Public education.
The City of Sausalito shall engage in a continuing program to explain and clarify the purposes and requirements of this chapter to citizens affected by it, and to guide individuals, landlords, employers, and nonprofit entities in their compliance with it. [Ord. 03-2023 § 2 (Att. A), 2023; Ord. 1264 § 2, 2018; Ord. 1207 § 3, 2012; Ord. 1085 § 2, 1994. Formerly 12.28.120.]
12.28.180 Governmental agency cooperation.
The City of Sausalito shall request other governmental and educational agencies having facilities within the City to establish local operating procedures in cooperation and compliance with this chapter. This includes urging all Federal, State, County and school district agencies to update their existing tobacco control regulations to be consistent with current health findings regarding environmental tobacco smoke. [Ord. 03-2023 § 2 (Att. A), 2023; Ord. 1264 § 2, 2018; Ord. 1207 § 4, 2012; Ord. 1085 § 2, 1994. Formerly 12.28.130.]
12.28.190 Licensing of tobacco retailers and tobacco sale restrictions.
A. Requirements and Prohibitions.
1. Tobacco Retailer’s License Required. It shall be unlawful for any person to act as a tobacco retailer without first obtaining and maintaining a valid tobacco retailer’s license pursuant to this section for each location at which that activity is to occur. No tobacco retailer’s license will be issued that authorizes tobacco retailing at any location other than at a fixed location. Tobacco retailing by persons on foot, from vehicles, bicycles, or any other transportation device is prohibited.
2. Lawful Business Operation. In the course of tobacco retailing or in the operation of the business or maintenance of the location for which a tobacco retailer’s license is issued, it shall be a violation of this section for a licensee, or any of the licensee’s agents or employees, to violate any local, State, or Federal law applicable to tobacco products or tobacco retailing.
3. False and Misleading Advertising Prohibited. A tobacco retailer without a valid tobacco retailer’s license, or one whose tobacco retailer’s license has been revoked or suspended, shall keep all tobacco products out of public view and shall not display any advertisement relating to tobacco products that could lead a reasonable person to believe that such products can be obtained at that location. A violation of this provision shall constitute tobacco retailing without a license under this section.
4. Sale of Flavored Tobacco Products Prohibited. No tobacco retailer shall sell any tobacco product containing, as a constituent or additive, an artificial or natural characterizing flavor including but not limited to tastes or aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice.
B. Tobacco Retailer’s License Application Procedure.
1. An application for a tobacco retailer’s license shall be submitted to the City in the name of the retailer, individual, or entity proposing to conduct the tobacco retailing on the business premises, on a form to be provided by the City. The application shall be signed by the retailer, individual, or entity proposing to engage in tobacco retailing, and shall contain the business name, address, and telephone number of each establishment where tobacco products are to be sold. Existing tobacco retailers shall apply for a tobacco retailer’s license within 90 days of the effective date of this section.
2. All tobacco retailer’s licenses will be issued and due for renewal effective July 1st and will expire on the subsequent June 30th. Licensees must apply for renewal before the tobacco retailer’s license expires.
3. A licensed tobacco retailer shall inform the City in writing of any change in the information submitted on an application for a tobacco retailer’s license within 10 business days of such a change.
4. All information in a tobacco retailer’s license application and the application itself are subject to disclosure under the California Public Records Act and/or any other applicable law, subject to the law’s exemptions.
C. Issuance, Display, and Transfer of Tobacco Retailer’s License.
1. Upon receipt of a completed application for a tobacco retailer’s license, the City will issue a tobacco retailer’s license, unless any of the following grounds for denial exist:
a. The application is incomplete or inaccurate.
b. The application seeks authorization for tobacco retailing by a person or location for which a suspension is in effect.
c. The application seeks authorization for tobacco retailing that is an unlawful use of land, building, or structure contrary to any provision of the Sausalito Municipal Code.
2. The tobacco retailer’s license must be prominently displayed at the location where the tobacco products are being sold.
3. The tobacco retailer’s license is nontransferable. If there is a change in location, a new tobacco retailer’s license will be issued for the new address upon receipt of a valid notification of change of location. The new tobacco retailer’s license will retain the same expiration date as the previous one.
4. A new tobacco retailer’s license is required whenever the tobacco retailer location has a change in proprietor(s). Notwithstanding any other provision of this section, prior violations at a location shall continue to be counted against a location and license ineligibility periods shall continue to apply to a location unless the new proprietor(s) provide the City with clear and convincing evidence that the new proprietor(s) have acquired or are acquiring the location in an arm’s length transaction.
D. Fee for License. The fee to issue or to renew a tobacco retailer’s license shall be $50.00 or as otherwise established from time to time by resolution of the City Council. The fee shall be calculated so as to recover the cost of administration and enforcement of this section.
E. Enforcement.
1. The remedies provided by this subsection are not intended to preclude any other remedy available at law or in equity. Remedies may be sought independently or cumulatively.
2. Any person, business, tobacco retailer, or owner who violates this section shall be deemed guilty of an infraction, punishable by the administrative penalties as regulated in Chapter 1.10 SMC.
3. The City may also seek the revocation or suspension of a tobacco retailer’s license for a violation of this section through the administrative hearing process set forth in subsection F of this section.
4. Each day of violation of the provisions of this section constitutes a separate violation.
F. Tobacco Retailer’s License Revocation or Suspension – Hearing.
1. A tobacco retailer’s license may be revoked or suspended for any violation of this section, or any local, State, or Federal tobacco-product-related laws. A tobacco retailer’s license may also be revoked or suspended on any of the following grounds:
a. One or more of the grounds for denial of a tobacco retailer’s license existed either when a license application was made or before the tobacco retailer’s license was issued;
b. The tobacco retailer’s license has been transferred in violation of this section; or
c. Two or more suspensions within a 12-month period have occurred.
2. If any grounds for revocation or suspension exist, the City may issue a notice of revocation or suspension hearing. Said notice shall include all of the following information:
a. The address where the tobacco retailer’s license is issued;
b. The grounds for revocation or suspension;
c. The date of the revocation or suspension hearing before the administrative hearing officer, who shall be designated by the City Manager. The notice of revocation or suspension hearing will set the hearing date no sooner than 20 days and no later than 45 days following the date said notice is mailed.
3. A tobacco retailer’s license may be revoked or suspended by the hearing officer after the hearing. At the hearing, the licensee will be given the opportunity to testify and present evidence concerning the grounds set forth in the notice of revocation or suspension hearing. After consideration of the testimony and evidence submitted at the hearing, the hearing officer will issue a written decision regarding the revocation or suspension of the tobacco retailer’s license and will list the reasons for the decision. This provision does not prevent the licensee from applying for a new tobacco retailer’s license. The City shall serve in person or by first-class mail a copy of the decision to the licensee within a reasonable time of the hearing.
4. The decision of the hearing officer regarding revocation or suspension shall be final and conclusive. Said decision shall be subject to judicial review pursuant to California Government Code Section 53069.4, which, among other things, requires such a judicial challenge to be brought within 20 days of service of the final decision. [Ord. 03-2023 § 2 (Att. A), 2023; Ord. 1264 § 2, 2018.]