CHAPTER 4. REGULATION OF TOBACCO-RELATED PRODUCTS AND DISTRIBUTION

Article 1. Smoking Prohibitions

5-4.101 Definitions.

For the purposes of this chapter only, the following words and phrases shall have the meanings defined in this section unless the context clearly requires otherwise:

(a) Business means any sole proprietorship, partnership, joint venture, corporation, association, or other entity formed for profit-making purposes.

(b) Common Area means every enclosed area or unenclosed area of a multi-unit residence that residents of more than one (1) 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.

(c) 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.

(d) Employee means any person who is employed or retained as an independent contractor by any employer or nonprofit entity in consideration for direct or indirect monetary wages or profit, or any person who volunteers his or her services for an employer or nonprofit entity.

(e) Employer means any business or nonprofit entity that retains the service of one (1) or more employees.

(f) Enclosed Area means an area in which outside air cannot circulate freely to all parts of the area, and includes an area that has:

(1) any type of overhead cover whether or not that cover includes vents or other openings and at least three (3) walls or other vertical constraint to airflow including, but not limited to, vegetation of any height whether or not those boundaries include vents or other openings; or

(2) four (4) walls or other vertical constraints to airflow including, but not limited to, vegetation that exceeds six (6) feet in height whether or not those boundaries include vents or other openings.

(g) Multi-Unit Residence means property containing two (2) or more units, except the following specifically excluded types of housing:

(1) a hotel or motel that meets the requirements of California Civil Code Section 1940(b)(2);

(2) a single-family home; and

(3) a single-family home with a detached or attached in-law or second unit.

(h) Nonprofit Entity means any entity that meets the requirements of California Corporations Code Section 5003 as well as any corporation, unincorporated association or other entity created for charitable, religious, philanthropic, educational, political, social or similar purposes, the net proceeds of which are committed to the promotion of the objectives or purposes of the entity and not to private gain. A government agency is not a nonprofit entity within the meaning of this chapter.

(i) Pedestrian Retail District means the area bounded by the centerline of California Boulevard on the west, the centerline of North and South Broadway on the east, the centerline of Newell Avenue on the south, and the centerline of Civic Drive on the north and the area bounded by the centerline of Giammona Drive on the north, the centerline of Civic Drive on the south, the centerline of N. Locust Street on the west, and the centerline of North Main Street on the east.

(j) Person means any natural person, business, cooperative association, nonprofit entity, personal representative, receiver, trustee, assignee, or any other legal entity including a government agency.

(k) 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 the operations, regardless of the hours of operation. "Place of employment" does not include private smokers' lounges that meet the requirements of subdivision (d)(4)(A) of Labor Code Section 6404.5 or its successor.

(l) Public Place means any place, publicly or privately owned, which is open to the general public regardless of any fee or age requirement. "Public place" does not include private smokers' lounges that meet the requirements of subdivision (d)(4)(A) of Labor Code Section 6404.5 or its successor.

(m) Reasonable Distance means a distance of twenty-five (25) feet in any direction from an area in which smoking is prohibited.

(n) Recreational Area means any area, including streets and sidewalks, that is publicly owned, controlled or used by the City 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, open space, walking paths, gardens, hiking trails, bike paths, riding trails, swimming pools, ice-skating rinks, and skateboard parks, but does not include unenclosed areas of private and public golf courses.

(o) 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 (1) or more persons to receive a service, wait to receive a service or to make a transaction, whether or not such service or transaction includes the exchange of money. The term "service area" includes but is not limited to areas including or adjacent to information kiosks, automatic teller machines (ATMs), ticket lines, bus stops or shelters, mobile vendor lines or cab stands.

(p) 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, except when the combusting or vaporizing material contains no tobacco, marijuana, 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 and marijuana smoke and gases, particles, e-liquids, and vapors from electronic smoking devices as defined in Chapter 15 of Title 4. Any vapor produced during vaporization of marijuana for medical purposes in a multifamily unit residence is not included within this definition.

(q) Smoking means engaging in an act that generates smoke, such as, for example: inhaling, exhaling, burning, igniting, operating, or carrying any lighted, heated, or ignited cigar, cigarette, cigarillo, pipe, hookah, electronic smoking device, or any plant product intended for human inhalation.

(r) Unenclosed Area means any area that is not an enclosed area.

(s) 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 single-family home; and an in-law or second unit. (§3, Ord. 2118, eff. 11/1/13; §2, Ord. 2172, eff. 7/7/17; §3A, Ord. 2211, eff. 12/17/21)

5-4.102 Prohibition of Smoking in Enclosed Places.

(a) In addition to prohibitions under State or Federal law, smoking is prohibited in the enclosed areas of the following places within the City:

(1) Places of employment;

(2) Public places;

(3) Common areas of all multi-unit residences; and

(4) Units within all multi-unit residences.

(b) Any places exempted by the California smokefree workplace law (Labor Code Section 6404.5(d)) are not exempt under this chapter. Smoking is prohibited by this chapter in all places exempted by that State law, except as provided below.

(1) Smoking at theatrical production sites is not prohibited by this subsection if the theater general manager certifies that smoking is an essential 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. This exception will not apply if minors are performers within the production.

(2) Notwithstanding anything to the contrary in the foregoing, this chapter does not prohibit smoking in retail tobacco establishments with private smokers' lounges meeting the requirements of the applicable portions of subdivision (d)(4) of Labor Code Section 6404.5.

(c) The prohibitions set out in subsections (a)(3) and (a)(4) of this section shall not be operative until ninety (90) days following the effective date of this chapter. (§3, Ord. 2118, eff. 11/1/13)

5-4.103 Prohibition of Smoking in Unenclosed Areas.

(a) In addition to prohibitions under State or Federal law, smoking is prohibited in the unenclosed areas of the following places within the City of Walnut Creek:

(1) Throughout the Pedestrian Retail District;

(2) Recreational areas;

(3) Service areas;

(4) Dining areas;

(5) Within twenty-five (25) feet of any enclosed area where smoking is prohibited by this chapter;

(6) Places of employment; and

(7) Common areas of all multi-unit residences; provided, however, 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;

(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, school campuses, and sandboxes;

(C) the area must be no more than ten percent (10%) 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.

(b) Nothing in this chapter prohibits any person, employer, or nonprofit entity with legal control over any property from prohibiting smoking on any part of such property, even if smoking is not otherwise prohibited in that area.

(c) The prohibitions set out in subsections (a)(1) and (a)(2) of this section shall not be operative until the City Manager has certified in writing to the City Clerk that the City has complied with the sign posting requirements of Section 5-4.104(c) for each specified place or thirty (30) days following the effective date of this section, whichever is later. This certification may be made separately for the Pedestrian Retail District and for each recreational area.

(d) The prohibition set out in subsection (a)(7) of this section shall not be operative until ninety (90) days following the effective date of this chapter. (§3, Ord. 2118, eff. 11/1/13; §2, Ord. 2119, eff. 12/19/13)

5-4.104 Other Requirements and Prohibitions.

(a) No person, employer, or nonprofit entity shall knowingly permit smoking in an area which is under the legal or de facto control of that person, employer or nonprofit entity and in which smoking is prohibited by law, unless otherwise required by State or Federal law.

(b) 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) A person, employer, or nonprofit entity that has legal or de facto control of an unenclosed area in which smoking is prohibited by this chapter shall post a clear, conspicuous and unambiguous "No Smoking" or "Smokefree" sign at each point of ingress to the area, and in at least one (1) other conspicuous point within the area. The signs shall have letters of no less than one (1) 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), as well as cite to this title and chapter for reference. For purposes of this section, the City Manager or his or her designee shall be responsible for the posting of signs in places owned or controlled 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.

(d) With respect to each multi-unit residence, the owner, in cases where the units may not be sold individually, or the person responsible for maintenance of the common area, in cases where the units may be sold individually, shall: (1) within thirty (30) days of the effective date of this section, notify the occupants and owners of units in writing by mail or delivery to the unit of the prohibitions imposed by Sections 5-4.102(a)(3), 5-4.102(a)(4) and 5-4.103(a)(7); and (2) post signage, prior to the operative date of Sections 5-4.102(a)(3), 5-4.102(a)(4) and 5-4.103(a)(7), meeting the requirements of subsection (c) of this section at each point of ingress into the multi-unit residence and at least one (1) other conspicuous point in the common area. In addition to those requirements, the signage shall indicate that smoking is prohibited within units in the multi-unit residence and within the common area, except as designated under Section 5-4.103(a)(7). 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, 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.

(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.

(g) Every lease or other agreement for the occupancy of a unit in a multi-unit residence entered into, amended, or renewed ninety (90) or more days following the effective date of this section 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 in which smoking is prohibited; and

(3) A clause stating that all occupants of the multi-unit residence are express third-party beneficiaries of the above required clauses.

(4) A form prepared by an entity such as the California Apartment Association Form 34 meets the requirements for lease terms as outlined and is an option for use to comply with this section.

(h) The lease or agreement terms required by subsection (g) of this section are hereby incorporated by law into any lease or other agreement for the occupancy of a unit in a multi-unit residence made on or after the effective date of this section and which does not fully comply with subsection (g)(1), (g)(2) or (g)(3) of this section.

(1) A tenant who breaches the smoking regulations of a lease or knowingly allows another person to do so shall be liable to: the landlord, and any occupant of the multi-unit residence who is exposed to secondhand smoke as a result of that breach. A landlord shall not be liable to any person for a tenant's breach of smoking regulations if the landlord has fully complied with the requirements of this chapter.

(2) Failure to enforce any smoking regulation of a lease or agreement on one (1) or more occasions shall not constitute a waiver of the lease or agreement provisions required by this chapter and shall not prevent future enforcement of any such smoking regulation on another occasion. (§3, Ord. 2118, eff. 11/1/13)

5-4.105 Penalties and Enforcement

(a) The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity.

(b) Each incident of smoking in violation of this chapter is an infraction subject to a one hundred dollar ($100.00) fine or otherwise punishable pursuant to Section 1-2.01. Other violations of this chapter may, in the discretion of the City Attorney, be prosecuted as infractions or misdemeanors when the interests of justice so require. Enforcement of this chapter shall be the responsibility of the City Manager or his or her designee. In addition, any peace officer or code enforcement official also may enforce this chapter.

(c) Violations of this chapter are subject to a civil action brought by the City, punishable by a civil fine not less than two hundred fifty dollars ($250.00) and not exceeding one thousand dollars ($1,000.00) per violation.

(d) Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter.

(e) Any violation of this chapter is hereby declared to be a nuisance.

(f) In addition to other remedies provided by this chapter or by other law, any violation of this chapter may be remedied by a civil action brought by the City Attorney, including, but not limited to, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.

(g) Any person acting for the interests of 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 (2) 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 one hundred fifty dollars ($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 sixty (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 upon, in whole or in part, 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 (7) days of filing it.

(2) Upon a settlement or judgment based upon, in whole or in part, 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 thirty (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 thirty (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.

(h) 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.

(i) Any individual smoking marijuana or marijuana products in violation of this chapter shall be subject to the penalties contained herein, except to the extent such penalties would conflict with state law. (§3, Ord. 2118, eff. 11/1/13; §3, Ord. 2172, eff. 7/7/17)

Article 2. Tobacco Retailer License

5-4.201 License Requirement.

a. Without first obtaining and maintaining a valid tobacco retailer's license, it shall be unlawful for any person or retailer found to have been convicted of any City of Walnut Creek ordinance regulating the sale or distribution of tobacco within the previous twelve months to sell or offer for sale any tobacco product. A tobacco retailer's license shall be obtained from Contra Costa County Health Services Department for each location in the city where such person or retailer sells tobacco products.

b. For the purposes of this article, any City of Walnut Creek ordinance regulating the sale or distribution of tobacco shall include Article 2 of Chapter 4 of Title 4 of the Municipal Code (Commencing with Section 4-4.100), Chapter 15 of Title 4 of the Municipal Code (Commencing with Section 4-15.01), Chapter 4 of Title 5 of the Municipal Code (Commencing with Section 5-4.101) and Municipal Code Section 10-8.107.

c. For the purposes of this article, "retailer" means any individual, firm, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee or other legal entity.

d. Licenses are valid for one year and licensees must apply for renewal annually for a total of five years. If there are no further conviction of any ordinance regulating the sale or distribution of tobacco in that five-year period, no additional renewal of the tobacco retailer's license will be required in order to sell tobacco products. The license may be revoked for cause pursuant to Section 5-4.206 below. (§1, Ord. 1943, eff. 4/1/99; and by §1, Ord. 1962, eff. 6/1/00; §3A, Ord. 2211, eff. 12/17/21)

5-4.202 Application Procedure.

An application for a tobacco retailer's license shall be submitted in the name of the retailer, who, following a conviction specified in Sec. 5-4.201, proposes to conduct retail tobacco sales on the business premises and shall be signed by such retailer or its authorized agent. All applications shall be submitted to the Contra Costa Health Services Department on a form supplied by the Department, and shall contain the following information:

a. The names, address, and telephone number of the applicant;

b. The business name, address, and telephone number of each establishment where tobacco to be sold; and

c. Such other information as the Director of the Health Services determines is necessary for implementation of this article. For purposes of this article, Director means Director of Contra Costa Health Services unless otherwise specified. (§1, Ord. 1943, eff. 4/1/99; and by §1, Ord. 1962, eff. 6/1/00)

5-4.203 Issuance and Display of License.

Upon receipt of a completed application for a tobacco retailer's license, including payment of the license fee, the Director, or his or her designee will issue a license, which each licensee must prominently display at the location where tobacco retail sales are conducted. (§1, Ord. 1943, eff. 4/1/99; and by §1, Ord. 1962, eff. 6/1/00)

5-4.204 Fees For License.

The fee for a tobacco retailer's license shall reflect the actual cost of processing the license, including inspection of the tobacco retailer's business premises and implementation of the licensing program and shall not exceed $500 annually as determined by the Board of Supervisors. (§1, Ord. 1943, eff. 4/1/99; and by §1, Ord. 1962, eff. 6/1/00)

5-4.205 License is Nontransferable.

The fee for a tobacco retailer's license is nontransferable. If there is a change in location, a new tobacco retail license will be issued for the new address upon receipt of an application for change of location. The new license will retain the same expiration date as the previous one. (§1, Ord. 1943, eff. 4/1/99; and by §1, Ord. 1962, eff. 6/1/00)

5-4.206 Suspension or Revocation of License.

a. Grounds for Suspension. A tobacco retailer's license may be suspended, as set forth in subsection b., by the Director upon a finding, after giving the licensee notice and opportunity to be heard, that the licensee or his or her employee, has been convicted of any City ordinance regulating the sale or distribution of tobacco.

b. Time Period of Suspension of License.

1. Upon the first time that the director makes a finding as set forth in subsection (a), the license to sell tobacco products may be suspended for up to sixty (60) days;

2. Upon the second time that the Director makes a finding as set forth in subsection (a) within twelve months of the first determination, the license to sell tobacco products may be suspended for up to one hundred twenty (120) days;

3. Upon the third and each subsequent time that the Director makes a finding as set forth in subsection a within twelve months of the prior determination, the license to sell tobacco products may be suspended for up to one year.

c. Grounds for Revocation. A tobacco retailer's license may be revoked by the Director upon a finding, after giving the licensee notice and opportunity to be heard, that the licensee or his or her employee, has been convicted of any Municipal Code section regulating the sale or distribution of tobacco.

d. Appeal of Suspension or Revocation. The decision of the Director to suspend or revoke a tobacco retailer's license may be appealed to the City Council as provided by Chapter 4 of Title 1 (commencing with Section 1-4.01) of this Code. (§1, Ord. 1943, eff. 4/1/99; and by §1, Ord. 1962, eff. 6/1/00)

5-4.207 Administrative Fine.

a. Grounds for Fine. If the City Manager, after giving notice and an opportunity to be heard finds a person is selling or offering tobacco products for sale without a required tobacco retailer's permit, that person may be subject to an administrative fine, as permitted under Government Code Section 53069.4, as follows:

1. Up to a maximum one hundred dollars ($100) for a first violation;

2. Up to a maximum two hundred dollars ($200) for a second violation within one year;

3. Up to a maximum five hundred dollars ($500) for the third and subsequent violations within one year.

Each day that tobacco products are offered for sale without a license by a tobacco retailer required to have such a license pursuant to Section 5-4.201, shall constitute a separate violation as set forth in Section 1-2.01 of this code. A finding of "offering for sale" will be made if tobacco products are actually sold and or displayed in the retail establishment.

b. Fine Procedures. Notice of the fine shall be served on the tobacco retailer or person who is owner of the establishment by certified mail following the procedures set forth in Section 1-3.10 of this Code. The notice shall contain an advisement of the right to request a hearing before the City Manager contesting the imposition of the fine. Said hearing must be requested within ten (10) days of the date of the notice of the fine.

c. Appeal to Municipal Court. Any fine imposed by the City Manager may be appealed to the municipal court.

d. Failure to Pay Fine. Prior to the issuance of any license by Contra Costa Health Services any outstanding fines must be paid. (§1, Ord. 1943, eff. 4/1/99; and by §1, Ord. 1962, eff. 6/1/00)