[Ord. #08-03, § 2]
Section 17-1 shall be known as Smoking Pollution Control.
[Ord. #08-03, § 1]
The City Council of the City 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 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 secondhand smoke include lung
cancer, respiratory infection, decreased exercise tolerance, decreased
respiratory function, bronchoconstriction, and bronchospasm; and
d. Nonsmokers who suffer allergies, respiratory diseases and other ill
effects of breathing secondhand smoke may experience a loss of job
productivity or may be forced to take periodic sick leave because
of such adverse reactions; and
e. Numerous studies have shown that a majority of both nonsmokers and
smokers desire to have restrictions on smoking in public places and
places of employment; and
f. Smoking is a documented cause of fires, and cigarette and cigar burns
and ash stains on merchandise and fixtures cause economic losses to
businesses; and
g. Accordingly, the City Council finds and declares that the purposes
of this section are (1) to protect the public health and welfare by
prohibiting smoking in public places, places of employment, and specifically
designated public play areas where small children are at risk of choking
on or ingesting cigarette butts and other toxic tobacco litter, and
(2) to guarantee the right of nonsmokers to breathe smoke-free air,
and to recognize that the need to breathe smoke-free air shall have
priority over the desire to smoke.
[Ord. #08-03, § 1; Ord. No. 2017-01 § 1; Ord. No. 2017-04]
For the purposes of this section the following definitions shall
govern unless the context clearly requires otherwise:
a. Bar shall mean any area utilized primarily for the sale of alcoholic
beverages for consumption by patrons on the premises and in which
the serving of food is merely incidental to the sale and consumption
of alcoholic beverages and in which persons younger than twenty-one
(21) years of age are at all times excluded. Although a restaurant
may contain a bar, the term "bar" shall not include a restaurant dining
area.
b. Business shall mean any sole proprietorship, partnership, joint venture,
corporation, association, or other entity formed for profit-making
purposes or that has an employee, as defined in this section.
c. Dining area shall mean any area available to or customarily used
by the general public, that is designed, established, or regularly
used for consuming food or drink.
d. Electronic smoking device shall mean an electronic device that can
be used to deliver an inhaled dose of nicotine, or other substances,
including any component, part, or accessory of such a device, whether
or not sold separately. "Electric smoking device" includes any such
device, whether manufactured, distributed, marketed or sold as an
electronic cigarette, an electronic cigar, an electronic cigarillo,
an electronic pipe, an electronic hookah, or any other product name
or descriptor.
[Ord. No. 2017-01 § 1]
e. Employee shall mean any person who is employed; retained as an independent
contractor by any employer, as defined in this section; or any person
who volunteers his or her services for an employer, association, nonprofit,
or volunteer entity.
f. Employer shall mean any person, partnership, corporation, municipal
corporation, association, nonprofit or other entity who employs or
retains the service of one or more persons, or supervises volunteers.
g. Enclosed shall mean:
1. Any covered or partially covered space having walls, privacy fences,
tents, windbreaks, or other structures or fixtures causing it to be
closed to the outside that are five (5) feet or taller surrounding
more than fifty (50%) percent of its perimeter area such as, for example,
a covered porch with more than two (2) walls; or
2. Any space open to the sky (hereinafter "uncovered") having more than
seventy-five (75%) percent of its perimeter area walled in or otherwise
closed to the outside such as, for example, a courtyard, with the
exception of a bar as defined in this ordinance.
h. Marijuana shall have the same meaning as given to that term in California
Health and Safety Code Section 11018.
[Ord. No. 2017-04]
i. Multi-unit residence shall mean a premises that contains two (2)
or more units. A single-family house shared by roommates is not a
multi-unit residence for purposes of this section.
j. Multi-unit residence common area shall mean any indoor or outdoor
common area of a multi-unit residence accessible to and usable by
residents of different units, including but not limited to halls and
paths, lobbies, laundry rooms, common cooking areas, outdoor eating
areas, play areas, swimming pools, and parking areas.
k. New unit shall mean a unit that is issued a certificate of occupancy
on or after March 24, 2017, and also means a unit that is let for
residential use for the first time on or after March 24, 2017.
[Ord. No. 2017-01 § 1]
l. Nonprofit entity shall mean 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 public agency is not a nonprofit entity within the meaning of this
section.
m. Place of employment shall mean any area under the legal or de facto
control of an employer, business or nonprofit entity that an employee
or the general public may have cause to enter in the normal course
of operations, but regardless of the hours of operation, including,
for example, indoor and outdoor work areas, construction sites, vehicles
used in employment or for business purposes, taxis, buses, employee
lounges, conference and banquet rooms, bars, restaurants, bingo and
gaming facilities, long-term health facilities, warehouses, and private
residences that are used as childcare or health care facilities subject
to licensing requirements.
n. Playground shall mean any park or recreational area designed in part
to be used by children that has play or sports equipment installed
or has been designated or landscaped for play or sports activities,
or any similar facility located on public or private school grounds,
or on City grounds.
o. Reasonable distance shall mean a distance that ensures that occupants
of an area in which smoking is prohibited are not exposed to secondhand
smoke created by smokers outside the area. This distance shall be
a minimum of twenty-five (25') feet.
p. Recreational area shall mean any area, public or private, open to
the general public for recreational purposes regardless of any fee
or age requirement, including, for example, parks, picnic areas, beaches,
gardens, walking paths, bike paths, hiking trails, sporting facilities
and sports fields, stadiums, and playgrounds.
q. Service area shall mean any area designed to be or regularly used
by one (1) or more persons to receive or wait to receive a service,
enter a public place, or make a transaction whether or not such service
includes the exchange of money including, for example, ATMs, bank
teller windows, telephones, ticket lines, bus stops, and cab stands.
r. Significant tobacco retailer shall mean any tobacco retailer that
derives seventy-five (75%) percent or more of gross sales receipts
from the sale or exchange of tobacco products and tobacco paraphernalia.
s. Smoking shall mean inhaling, exhaling, burning or carrying any lighted,
heated, or ignited cigar, cigarette, cirgarillo, pipe, hookah, Electronic
smoking device or any plant product intended for human inhalation,
including, but not limited to, tobacco, tobacco products, marijuana
and marijuana products.
[Ord. No. 2017-01 § 1; Ord. No. 2017-04]
t. Tobacco product shall mean:
[Ord. No. 2017-01 § 1]
1. Any product containing, made, or derived from tobacco or nicotine
that is intended for human consumption, whether smoked, heated, chewed,
absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any
other means, including, but not limited to cigarettes, cigars, little
cigars, chewing tobacco, pipe tobacco, snuff; and
2. Any electronic smoking device.
3. Notwithstanding any provision of paragraphs 1 and 2 above to the
contrary, "tobacco product" includes any component, part, or accessory
of a tobacco product, whether or not sold separately. "Tobacco product"
does not include any product that has been approved by the United
States Food and Drug Administration for sale as a tobacco cessation
product or for other therapeutic purposes where such product is marketed
and sold solely for such an approved purpose.
u. Unit shall mean: (1) a dwelling space consisting of essentially complete
independent living facilities for one (1) or more persons, including,
for example, permanent provisions for living and sleeping, and any
private outdoor spaces like balconies and patios; and (2) senior citizen
housing and single room occupancy hotels, as defined in California
Health and Safety Code section 50519(b)(1), even where lacking private
cooking facilities or private plumbing facilities. "Unit" does not
include lodging in a hotel or motel that meets the requirements set
forth in California
Civil Code section 1940(b)(2).
[Ord. #08-03, § 2; Ord. No. 2017-01 § 2]
a. Enclosed Places. Smoking shall be prohibited in the following enclosed
places within the City except in places listed in paragraph d below,
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:
2. Multi-Unit Residence Common Areas;
3. New and Existing Units of Multi-Unit Residences
(a)
Smoking is prohibited in all new units of a multi-unit residence,
including any associated exclusive-use enclosed areas or unenclosed
areas, such as, for example, a private balcony, porch, deck, or patio.
Smoking in a new unit of a multi-unit residence, on or after March
24, 2017.
(b)
Smoking is prohibited in all units of a multi-unit residence
that are not new units, including any associated exclusive-use enclosed
areas or unenclosed areas, such as, for example, a private balcony,
porch, deck, or patio. Smoking in a unit of a multi-unit residence
that is not a new unit, on or after March 24, 2018.
4. Enclosed areas adjacent to an enclosed area in which smoking is prohibited
by any other section of this Code, State law, or Federal law and that
have a common or shared air space such as, without limitation, openings,
cracks, air ventilation systems, doorways, hallways, and stairways.
Notwithstanding any other provision, the fact that smoke enters one
enclosed area from another enclosed area is conclusive proof that
the areas share a common or shared air space;
5. Enclosed areas that have a common or shared ventilation, air conditioning
or heating system with an enclosed area in which smoking is prohibited.
Notwithstanding any other provision, the fact that smoke enters one
enclosed area from another enclosed area is conclusive proof that
the areas share a common or shared air space.
b. Unenclosed Places. Smoking shall be prohibited in the following unenclosed
places within the City except in such places in which smoking is already
prohibited by State or Federal law in which case the State or Federal
law applies:
3. Recreational Areas and Playgrounds;
4. Dining and Bar Areas. However, dining and bar areas which commenced
business operations prior to March 24, 2017 may continue to allow
smoking in unenclosed areas of a bar that does not serve food, with
the exception of the unenclosed areas of any bars where food had been
served for at least ninety (90) days prior to the passage of Ordinance
No. 08-03. If smoking is permitted in such an unenclosed area, the
entire smoking section must be limited to one (1) clearly designated
area prominently marked with signs, and must be located at least five
(5') feet from any doorway or opening into an enclosed area. Smoking
in an unenclosed area of a bar is only permitted provided the smoke
does not enter adjacent enclosed or unenclosed areas, excluding public
sidewalks, in which smoking is prohibited by any law or by the owner,
lessee or licensee of the adjacent property;
5. Multi-Unit Residence Common Areas:
(a)
Smoking is prohibited in all multi-unit residence common areas
except that a landlord may designate a portion of the outdoor area
of premises as a smoking area as provided in paragraph (b) below.
(b)
A designated smoking area:
(1)
Must be located a reasonable distance from any indoor area where
smoking is prohibited;
(2)
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;
(3)
Must constitute no more than twenty-five (25%) percent of the
total outdoor area of the premises for which it is designated;
(4)
Must have a clearly marked perimeter;
(5)
Must be identified by conspicuous signs; and
(6)
Must not overlap with any area in which smoking is otherwise
prohibited by this section or other provisions of this Code, State
law, or Federal law.
6. Sidewalks adjacent to any public or private school property;
7. The sites of public events during the events including, for example,
sports events, theatrical performances, speeches, ceremonies, pageants,
farmers' markets, parades, and fairs; and
8. Sidewalks on Solano Avenue, between San Pablo Avenue and the City
of Berkeley jurisdictional border.
c. No person shall dispose of smoking waste within the boundaries of
an area in which smoking is prohibited, including inside the perimeter
of any reasonable distance required by this section.
d. Unless otherwise prohibited by law, smoking is permitted in the following
enclosed places:
1. Significant tobacco retailers, if at all times minors are prohibited
from entering the store;
2. By performers during theatrical productions, if smoking is an integral
part of the story in the theatrical production;
3. Private single family residential homes, except those used as a child
care or health care facility subject to licensing requirements; and
4. Up to twenty (20%) percent of hotel and motel guest rooms, if the
hotel or motel permanently designates particular guest rooms as nonsmoking
rooms such that eighty (80%) percent or more of its guest rooms are
nonsmoking and ashtrays and matches are permanently removed from such
nonsmoking rooms. Permanent "no smoking" signage shall be posted in
nonsmoking rooms.
[Ord. #08-03, § 2; Ord. No. 2017-01 § 3; Ord. No. 2017-04]
a. No person, employer, business, landlord, or nonprofit entity shall
knowingly permit the smoking of tobacco products in an area which
is under the legal or de facto control of the person, employer, business,
landlord, or nonprofit entity and in which smoking is prohibited by
this section, this Code, or any other State or Federal law provided,
however, that this prohibition does not apply to a person, employer,
business, landlord, or nonprofit entity already compelled to act under
State or Federal law.
b. No person, employer, business, landlord, or nonprofit entity shall
knowingly or intentionally permit the presence or placement of ash
receptacles, such as, for example, ash trays or ash cans, within an
area which is under the legal or de facto control of the person, employer,
business, landlord, or nonprofit entity and in which smoking is prohibited,
including, without limitation, inside the perimeter of any reasonable
distance required by this section.
c. Notwithstanding any other provision of this section, any owner, landlord,
employer, business, nonprofit entity, or other person who controls
any property, establishment, or place of employment regulated by this
section may declare any part of such area in which smoking would otherwise
be permitted to be a nonsmoking area.
d. "No Smoking" or "Smoke Free" signs, with letters of no less than
one (1") inch in height or the international "No Smoking" symbol (consisting
of a pictorial representation of a burning cigarette enclosed in a
red circle with a red bar across it) shall be clearly, sufficiently
and conspicuously posted in every enclosed and unenclosed place in
which smoking is prohibited by this section, by the person, employer,
business, landlord, or nonprofit entity that has legal or de facto
control of such place. At least one (1) sign with the City phone number
where complaints can be directed must be conspicuously posted in every
place in which smoking is prohibited. In addition, signs shall be
posted in sufficient numbers and locations in the multi-unit residence
to indicate that smoking is prohibited in all units. For purposes
of this section, the City Manager or designee shall be responsible
for the posting of signs in regulated facilities owned or leased in
part by the City. Notwithstanding this provision, the presence or
absence of signs shall not be a defense to the violation of any other
provision of this section.
[Ord. No. 2017-01 § 3]
e. Disclosure of Smoking Policy in New and Existing Multi-Unit Housing.
1. Every landlord shall deliver a written notice on or before six (6)
months following March 24, 2017 to each unit of a multi-family residence
and to any prospective tenants, stating the following:
(a)
All new units are designated nonsmoking units and smoking will
be illegal in a unit, including any associated exclusive-use enclosed
area or unenclosed area, such as, for example, a private balcony,
porch, deck or patio, as of March 24, 2017;
(b)
All units that are not new units are designated nonsmoking units
and smoking will be illegal in a unit, including any associated exclusive
use enclosed area or unenclosed area, such as, for example, a private
balcony, porch, deck or patio, as of March 24, 2018 as to smoking
of tobacco or tobacco products and as of September 1, 2017 as to smoking
of marijuana or marijuana products;
(c)
Smoking in all common areas, except for specifically designated
smoking areas, will be a violation of this chapter as of March 24,
2017.
2. As of September 1, 2017, every seller of a unit in a multi-unit residence
shall provide prospective buyers with written notice stating the following:
(a)
Smoking is prohibited in units, including any associated exclusive-use
enclosed area or unenclosed area, such as, for example, a private
balcony, porch, deck or patio, as of September 1, 2017; and
(b)
Smoking is prohibited in all common areas, except for specifically
designated smoking areas, as of March 24, 2017.
3. All sellers of condominium units are required to disclose to prospective
buyers in writing whether smoking has been permitted in the unit and
the smoking policies for the complex;
[Ord. #08-03, § 2; Ord. No. 2017-04]
a. Any person who violates any provisions of this section shall be guilty
of an infraction, punishable by:
1. A fine, not less than fifty ($50.00) dollars or more than one hundred
($100.00) dollars for the first violation.
2. A fine, not less than one hundred ($100.00) dollars nor more than
two hundred fifty ($250.00) dollars for the second violation within
a year.
3. A fine, not less than two-hundred fifty ($250.00) dollars nor more
than five hundred ($500.00) dollars for each additional violation
of this section within a year.
b. Notwithstanding any other penalty provision in this section, on the
proper application, a court is hereby authorized to issue an injunction
to prohibit any continued violations or nuisances that fall within
the acts prohibited under this section.
c. Upon a proper showing and hearing before the City Council that determines
that a business establishment has violated the prohibitions contained
in this section more than three (3) times in any calendar year, the
City Council has the discretion to revoke the business license of
the establishment.
d. Causing, permitting, aiding, abetting, or concealing a violation
of any provision of this ordinance shall also constitute a violation.
e. The remedies provided by this section are cumulative and in addition
to any other remedy available at law or in equity.
f. Enforcement of this section shall be the responsibility of the Police
Department. Any peace officer or Code Enforcement Official also may
enforce this section.
g. Any individual smoking marijuana or marijuana products in violation
of this chapter shall be subject to the penalties contained here,
except to the extent such penalties would conflict with State law.
[Ord. No. 2017-04]