Note: Prior ordinance history: Ords. 2184-86, 2422-92, 2496-95, 2570-97, 2577-98, 2968-12 and 3035-14.
The city council of the city of Sunnyvale does hereby find that tobacco smoke is detrimental to the health, welfare and comfort of the general public and that the health, safety and general welfare of the residents of, persons employed in, and persons who frequent this city would be furthered by the prohibition and regulation of smoking in enclosed places or defined places, including places of employment and multi-unit residences. The city council also finds that smoking is the number one most preventable cause of death and disease and that the use of flavored tobacco products, particularly use among youth, has increased in recent years. The purpose of this chapter is to ensure a healthier environment within the city, improve public safety by reducing litter from smoking waste and the risk of fire from smoking, and enhance the welfare of residents, workers, and visitors by reducing exposure to second hand smoke, which studies confirm can cause negative health effects in nonsmokers, and balance the needs of persons who smoke with the needs of nonsmokers, including children and youth, to be free from the discomforts and health threats created by exposure to second-hand smoke. This chapter also seeks to prevent access to flavored tobacco products, which studies show are a gateway to establishing tobacco habits with long-term addictive consequences.
(Ord. 3072-16 § 1; Ord. 3166-20 § 2)
The following words and phrases, whenever used in this chapter, shall be construed as defined in this section:
"Bar" or "tavern"
means any facility primarily devoted to the serving of alcoholic beverages for consumption by guests on the premises in which the serving of food is incidental. "Bar or tavern" includes those facilities located within a hotel, motel, or other similar transient occupancy establishment. However, when located within a building in conjunction with another use, including a restaurant, "bar" or "tavern" includes only those areas used primarily for the sale and service of alcoholic beverages. "Bar or tavern" does not include the dining areas of a restaurant, regardless of whether alcoholic beverages are served therein.
"Business"
means any sole proprietorship, partnership, joint venture, corporation, association, landlord, or other entity formed for profit-making purposes.
"Characterizing flavor"
means a taste or aroma, other than the taste or aroma of tobacco, imparted either prior to or during consumption of a tobacco product or any byproduct of the tobacco product, including, but not limited to, menthol, mint, wintergreen, fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb or spice; provided, however, that a tobacco product shall not be determined to have a characterizing flavor solely because of the use of additives, flavorings, or the provision of ingredient information.
"Common area"
means every enclosed area or unenclosed area of a multi-unit residence accessible and usable by residents of more than one unit of that multi-unit residence including, but not limited to, halls, paths, walkways, lobbies, courtyards, elevators and stairs, community rooms, playground areas, gym facilities, swimming pool areas, parking garages and parking lots, shared restrooms, shared laundry rooms, shared cooking areas, and shared eating areas.
"Dining area"
means any area, including streets and sidewalks, that is available to or customarily used by the general public or an employee, and that is designed, established, or regularly used, for consuming food or drink.
"Electronic smoking device"
means an electronic and/or battery operated device, the use of which may resemble smoking, which can be used to deliver an inhaled dose of vapors including nicotine or other substances. "Electronic smoking device" includes any such electronic smoking devices, 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. "Electronic smoking device" does not include any product specifically approved by the United States Food and Drug Administration for use in the mitigation, treatment or prevention of diseases.
"Electronic smoking device paraphernalia"
means cartridges, cartomizers, e-liquid, smoke juice, tips, atomizers, electronic smoking device batteries, electronic smoking device chargers, and any other item specifically designed for the preparation, charging, or use of electronic smoking devices.
"Employee"
means any person who is employed or retained as an independent contractor by any employer in consideration for direct or indirect monetary wages or profit, or any person who volunteers services for an employer.
"Employer"
means any business or nonprofit entity that retains the service of one or more employees.
"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 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 walls or other vertical constraints to airflow including, but not limited to, vegetation that exceed six feet in height, whether or not those boundaries include vents or other openings.
"Flavored tobacco product"
means any tobacco product that imparts a characterizing flavor. A manufacturer's public statement or claim of characterizing flavor, texts or images on labeling or packing that explicitly or implicitly implies characterizing flavor, or actions by a manufacturer directed to consumers that would cause consumers to believe the tobacco product imparts a characterizing flavor shall raise a rebuttable presumption that the tobacco product is a flavored tobacco product.
"Gaming club"
means any gaming club, as defined in Section 19802 of the Business and Professions Code, or bingo facility, as defined in Section 326.5 of the Penal Code, that restricts access to minors under eighteen years of age.
"Multi-unit residence"
means property containing two 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 campground;
(3) 
A single-family home;
(4) 
A single-family home with a detached or attached in-law or second unit.
"Pedestrian retail district"
means the area of South Murphy Avenue bounded by Washington Avenue and Evelyn Avenue.
"Public park"
means any park, reservation, playground, swimming pool, recreation center or any other area in the city, owned or used by the city and devoted to active or passive recreation.
"Public place"
means any enclosed or unenclosed area, publicly or privately owned, which is open to the general public regardless of any fee or age requirement.
"Reasonable distance"
means a distance of twenty five feet in any direction.
"Retail or wholesale tobacco store"
means a store utilized primarily for the sale of tobacco products and/or electronic smoking devices, and associated paraphernalia and accessories, and in which the sale of other products is merely incidental.
"Sale" or "sell"
means any transfer, exchange, barter, gift, offer for sale, or distribution for a commercial purpose, in any manner or by any means whatsoever. Possession of four or more flavored tobacco products by a tobacco retailer, including individual or packages of such products, or any combination thereof, shall raise a rebuttable presumption of possession with intent to sell flavored tobacco products.
"Service area"
means any publicly or privately owned enclosed or unenclosed area, including streets and sidewalks, that is designed to be used by one or more persons to receive a service, wait to receive a service, or to make a transaction, whether or not the service or transaction includes the exchange of money. The term "service area" includes, but is not limited to, areas including or within a reasonable distance of information kiosks, automatic teller machines (ATMs), ticket lines, transit stops or shelters, mobile vendor lines, and cab lines.
"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 or nicotine and the purpose of inhalation is solely olfactory such as, for example, from incense. The term "smoke" includes, but is not limited to, tobacco smoke, vapors from an electronic smoking device, and marijuana smoke.
"Smoking"
means inhaling, exhaling, burning, or carrying any lighted, heated, or ignited cigar, cigarette, cigarillo, pipe, hookah, electronic smoking device, or any plant product intended for human inhalation.
"Tobacco product"
means any product containing, made from, 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, cigarillos, chewing tobacco, pipe tobacco, and snuff; and any electronic smoking device. "Tobacco product" also includes any component, part, or accessory intended or reasonably expected to be used with a tobacco product, whether or not sold separately. "Tobacco product" does not include drugs, devices, or combination products authorized for sale by the United States Food and Drug Administration as defined in Sections 321 and 353(g) of Title 21 of the United States Code, relating to the Federal Food, Drug and Cosmetic Act.
"Tobacco retailer"
means any person who sells or offers for sale tobacco products and associated paraphernalia, without regard to the quantity of tobacco products sold or offered for sale.
"Transit stop"
means an area officially marked and designated as a place to wait for a bus, a light rail vehicle, train or any other public transportation vehicle that is operated on a scheduled route and open to use by the general public.
"Unenclosed area"
means any area that is not an enclosed area.
"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; or a room in a homeless shelter.
(Ord. 3072-16 § 1; Ord. 3087-16 § 2; Ord. 3166-20 § 3)
(a) 
Except as otherwise provided in Section 9.28.050, smoking is prohibited in the following enclosed and unenclosed locations in the city:
(1) 
All areas where smoking is prohibited by state or federal law, including, but not limited to, indoor workplaces, bars and restaurants (California Labor Code Section 6404.5); state, county, and city buildings (California Government Code Sections 7596 through 7598); and tot lots and playgrounds (California Health and Safety Code Section 104495).
(2) 
Elevators.
(3) 
Outdoor dining areas.
(4) 
Gymnasiums, fieldhouses, stadiums and outdoor theaters.
(5) 
Public parks.
(6) 
In service areas.
(7) 
Public places, when being used for a public event, including a farmer's market, parade, craft fair, or any event which may be open to or 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.
(8) 
In the pedestrian retail district.
(b) 
"No smoking" designation in other areas. Any location on city property, other than public streets and sidewalks, where smoking is not otherwise prohibited by law may be designated by the city manager as a "no smoking" area. Such areas shall be posted with appropriate signage.
(c) 
Nothing in this chapter prohibits any person or employer with legal control over any property from prohibiting smoking on any part of such property.
(d) 
Subsection (a)(3) shall not apply to outdoor areas of the two restaurants located at 769 N. Mathilda Avenue and 133 S. Murphy Avenue that have been granted use permits pursuant to Title 19 of this code to allow limited smoking (hookah) uses in outdoor areas; provided, however, that these establishments shall cease operations related to smoking in outdoor dining areas at such time as either the certificate of occupancy, ownership or use of the establishment changes, or when the establishment voluntarily prohibits smoking, whichever occurs soonest.
(Ord. 3072-16 § 1; Ord. 3087-16 § 3)
(a) 
Beginning September 23, 2016, smoking is prohibited and no person shall smoke in any new or existing unit of a multi-unit residence, in any enclosed or unenclosed common area of a multi-unit residence, or within a reasonable distance of any operable doorway, window, opening, or vent of a multi-unit residence, except in a designated smoking area as provided in this section.
(b) 
Smoking is prohibited in multi-unit residences as provided in subsection (a), except that a person with legal control over a common area, or authorized representative, may designate a portion of the common area as a designated smoking area provided that at all times the designated smoking area complies with subsection (c) below.
(c) 
Designated Smoking Areas in Multi-Unit Residences. A designated smoking area shall:
(1) 
Be located in an unenclosed and clearly delineated area totaling not more than ten percent of the total unenclosed area of the multi-unit residence for which it is designated;
(2) 
Be located at least twenty-five feet in any direction from any operable doorway, window, opening, or other vent into an enclosed area that is located at a multi-unit residence;
(3) 
Have receptacles designed for and primarily used for disposal of tobacco waste and that are maintained free of tobacco related litter including, but not limited to, cigarette butts;
(4) 
Be at least twenty-five feet from and shall not include, unenclosed areas primarily used by children or that facilitate physical activity, including, for example, playgrounds, swimming pools, and school campuses.
(d) 
Common Areas Free from Smoking Waste. Persons with legal control over common areas in multi-unit residences, and their authorized representatives, shall ensure that all common areas except those meeting the requirements of subsection (c) remain free of smoking and tobacco waste, and ash trays, ash cans, or other receptacles designed for or primarily used for disposal of smoking and tobacco waste.
(e) 
Signage. No smoking signs shall be posted as required by Section 9.28.070 of this chapter, but are not required inside any unit of a multi-unit residence. Signs shall be maintained by the person or persons with legal control over the common areas or the authorized representative of such person.
(f) 
Lease Terms. The following lease terms are required for all new and existing units in multi-unit residences:
(1) 
Every lease or other rental agreement for the occupancy of a new or existing unit in a multi-unit residence entered into, renewed, or continued month-to-month after the effective date of this ordinance shall include the following:
(i) 
A clause providing that as of September 23, 2016, it is a material breach of the agreement to allow or engage in smoking in the unit, including exclusive-use areas such as balconies, porches, or patios. 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 the unit or exclusive use areas such as balconies, porches, or patios as of September 23, 2016."
(ii) 
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 to engage in smoking in any common area of the multi-unit residence 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."
(iii) 
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 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."
(iv) 
A clause expressly conveying third-party beneficiary status to all occupants of the multi-unit residence as to the smoking provisions of the lease or other rental agreement. Such a clause might state, "Other occupants of the property are express third-party beneficiaries of those provisions in this agreement regarding smoking. As such, other occupants of the property may enforce such provisions by any lawful means, including by bringing a civil action in a court of law."
(g) 
Whether or not a landlord complies with subsection (f)(1), the clauses required by that subsection shall be implied and incorporated by law into every agreement to which subsection (f)(1) applies and shall become effective as of the earliest possible date on which the landlord could have made the insertions pursuant to subsection (f)(1).
(h) 
A tenant who breaches a smoking provision of a lease or other rental agreement for the occupancy of a unit in a multi-unit residence, 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: (i) the landlord; and (ii) any occupant of the multi-unit residence who is exposed to smoke or who suffers damages as a result of the breach.
(i) 
This chapter shall not create additional liability for 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 multi-unit residence if the landlord has fully complied with this section.
(j) 
Property Adjacent to Multi-Unit Residences. Smoking is prohibited in adjacent unenclosed property within twentyfive feet in any direction of any doorway, window, opening, or other vent into an enclosed area of a multi-unit residence, except this prohibition does not apply to a person who is smoking in the restricted buffer zone area while actively passing on the way to another destination and provided smoke does not enter any area in which smoking is prohibited.
(Ord. 3072-16 § 1)
(a) 
Smoking in all unenclosed areas shall be prohibited within a reasonable distance in any direction from any operable doorway, window, opening, crack, or vent into an enclosed area in which smoking is prohibited, except while the person smoking is actively passing on the way to another destination and provided smoke does not enter any unenclosed 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 Section 9.28.030 of this chapter, except while the person smoking is 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) shall not apply to unenclosed areas of private residential properties that are not multi-unit residences.
(d) 
Smoking is prohibited within a reasonable distance of any enclosed or unenclosed service area, except while the person smoking is actively passing on the way to another destination and provided smoke does not enter any unenclosed area in which smoking is prohibited.
(Ord. 3072-16 § 1; Ord. 3087-16 § 5)
Posting of signs shall be the responsibility of the owner, operator, manager or other person having control of any area where smoking is prohibited by this chapter.
(a) 
Except in facilities owned or leased by county, state or federal governmental entities, "No Smoking" signs with letters of not less than one inch in height or the international "No Smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it) shall be clearly, sufficiently and conspicuously posted in every room, building or other place where smoking is prohibited by this chapter, including, but not limited to, all entrances, all restrooms and all elevators. Signs posted on the exterior of buildings to comply with this section shall include the reasonable distance requirement set forth in Section 9.28.060 of this chapter. Signs of equivalent size and character reading "Smoking is prohibited except in designated areas" shall be posed at each entrance to a building or structure where smoking is permitted in designated areas. Signs of equivalent size and character reading "Smoking Permitted" may be posted where legally applicable. Alternative means of notification (individual place cards, film clips, etc.) may be employed, provided they are equivalent to the aforementioned signs in their effect. In all motion picture theaters, illuminated "No Smoking" signs shall be installed so as to be readily visible from all seats. Notwithstanding this provision, the presence or absence of signs shall not be a defense to a charge of smoking in violation of any provision of this chapter.
(Ord. 3072-16 § 1; Ord. 3087-16 § 6)
(a) 
It is unlawful for any person to smoke in a place within the city where smoking is prohibited.
(b) 
No employer or other person with responsibility for management or control of a place where smoking is prohibited shall knowingly and intentionally allow smoking in violation of this chapter, or fail to post signs required by 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 within any reasonable distance required by this chapter.
(d) 
No person, employer, or nonprofit entity shall intimidate, threaten any reprisal, effect any reprisal, or in any manner discriminate against another person who seeks to attain compliance with this chapter.
(e) 
It is unlawful for any tobacco retailer, its agents, employees, or assigns to sell or offer for sale, or possess with intent to sell or offer to sell any flavored tobacco product.
(f) 
Causing, permitting, aiding, abetting or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter.
(g) 
Any violation of this chapter is declared to be a public nuisance.
(Ord. 3072-16 § 1; Ord. 3087-16 § 7; Ord. 3166-20 § 4)
This chapter provides for regulation of smoking and sale of tobacco products and shall not be construed to preempt or otherwise limit or affect the applicability of any other law, regulation, requirement, policy or standard, or to alter the penalties provided by such laws, or regulate conduct where such regulation has been preempted by the United States or the State of California.
(Ord. 3166-20 § 5)
(a) 
The city manager may designate enforcement authority for this chapter, including, but not limited to, peace officers and code enforcement officials.
(b) 
Any person, including a legal entity or organization acting for the interests of itself, its members, or the general public may bring a civil action in any court of competent jurisdiction, including small claims court, to enforce this chapter against any person who has allegedly violated this chapter three 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.
(c) 
Except as otherwise provided, enforcement of this chapter is at the sole discretion of the city. Nothing in this chapter shall create a right of action in any person against the city or its agents to compel public enforcement of this chapter against private parties.
(Ord. 3072-16 § 1; Ord. 3087-16 § 8)
(a) 
Each instance of smoking or tobacco product use 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.
(b) 
Any person violating any of the provisions of this chapter shall be guilty of an infraction punishable as set forth in Chapter 1.04 of this code. Subsequent violations within a twelve-month period may, in the discretion of the city attorney, be prosecuted as infractions or misdemeanors when the interests of justice so require.
(c) 
Violations of this article may be subject to a civil action brought by the city, punishable by a fine of not less than two hundred fifty dollars and not exceeding one thousand dollars per violation.
(d) 
The remedies provided by this chapter are cumulative and not exclusive, and shall be in addition to any and all other remedies available to the city.
(Ord. 3072-16 § 1; Ord. 3087-16 § 9)