The U.S. Centers for Disease Control and Prevention reports that almost 50,000 deaths per year can be attributed to secondhand smoke. The U.S. Surgeon General advises that the aerosol from e-cigarettes can potentially expose bystanders to harmful substances.
There is a public health interest in limiting exposure to secondhand smoke for residents of condominiums, townhomes and other buildings with three or more attached units. While the California Building Code requires such residential units to have separate heating, venting, and air conditioning systems to give residents control of the air quality inside of their respective units, restricting smoking on patios, balconies and in common areas will prevent secondhand smoke exposure.
(Ord. 2229 § 2, 2022)
This chapter shall apply to property with a building or buildings with three or more attached dwelling units, which may be owner-occupied or leased, including condominiums, townhomes, triplexes, and fourplexes.
(Ord. 2229 § 2, 2022)
The following words and phrases, whenever used in this chapter, shall be defined as follows:
"Common area"
means the area of a subject property where residents of more than one unit are entitled to enter or use, including, but not limited to, halls, paths, lobbies, courtyards, elevators, stairs, community rooms, playgrounds, swimming pools, parking garages, parking lots, cooking areas, and eating areas.
"Electronic smoking device"
means an electronic cigarette or a similar device, including, but not limited to, a device intended to simulate smoking, which permits a person to inhale vapors or aerosols that may or may not contain nicotine.
"Enclosed area"
means an area on a subject property enclosed by a roof and walls on all sides with appropriate openings for ingress and egress, windows, and ventilation.
"Landlord"
means any person who owns a condominium, townhome, or building with three or more attached dwelling units, and who rents such a unit to another person.
"Nonsmoking area"
means any enclosed area or unenclosed area in which smoking is prohibited by: (1) this chapter or other law; (2) by binding agreement relating to the ownership, occupancy, or use of the real property; or (3) by designation of a person with legal control over the area.
"Person"
means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity, including government agencies.
"Smoke"
means any vapors, gases, particles or other by-products 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 igniting or vaporizing material both contains no tobacco or nicotine and the usual purpose of inhalation is solely olfactory such as with the burning of incense. Smoke specifically includes, but is not limited to, gases, particles, vapors, or other by-products released by electronic smoking devices, tobacco cigarettes, herbal cigarettes, marijuana cigarettes and any other type of cigarette, pipe or other implement for the purpose of inhalation of vapors, gases, particles or other by-products released as a result of combustion or ignition or vaporization.
"Smoking" or "to smoke"
means inhaling, exhaling, burning or carrying any lighted, heated or ignited cigar, cigarette, cigarillo, pipe, hookah, electronic smoking devices or paraphernalia; or engaging in an act that generates smoke; or lighting or igniting a pipe, a hookah pipe, a cigar, or a cigarette of any kind including, but not limited to, an electronic cigarette.
"Subject property"
means real property on which a condominium, townhome, or building(s) or structure(s) with three or more attached dwelling units is located.
"Tobacco" or "nicotine product"
means any substance containing tobacco leaf, including, but not limited to, cigarettes, cigars, pipe tobacco, hookah tobacco, or any other preparation of tobacco; and any electronic cigarette or other electronic device used to generate smoke; and 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, but does not include any cessation product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco dependence.
"Unenclosed area"
means any area on a subject property that is not an enclosed area.
"Unit"
means a personal dwelling space for one or more persons at a condominium, townhome, or building or structure with three or more attached residences, and includes any associated exclusive use unenclosed area, such as, for example, a private balcony, deck, fenced outdoor area, patio, or porch.
(Ord. 2229 § 2, 2022)
Smoking is prohibited in:
A. 
Any exclusive use unenclosed area of a unit, such as, for example: a private balcony, deck, fenced outdoor area, patio or porch;
B. 
All common areas (both enclosed areas and unenclosed areas).
(Ord. 2229 § 2, 2022)
Where smoking is prohibited under this chapter:
A. 
No person shall smoke in any nonsmoking area.
B. 
No person with legal control over any nonsmoking area shall knowingly permit smoking in any nonsmoking area that is under that person's control.
C. 
Persons who occupy a unit at the subject property have a duty to advise and require their invitees and guests to comply with this chapter.
D. 
No person shall intimidate or harass any person who seeks compliance with this chapter. No person shall intentionally or recklessly expose another person to smoke in response to that person's effort to achieve compliance with this chapter.
E. 
Causing, permitting, aiding, or abetting a violation of any provision of this chapter shall also constitute a violation of this chapter.
(Ord. 2229 § 2, 2022)
A landlord has the option to incorporate into the rental agreement for the occupancy of a unit on a subject property a description of all areas on the subject property and leased unit where smoking is allowed or prohibited.
(Ord. 2229 § 2, 2022)
A. 
Any person who violates any provision of this chapter may be cited under Chapter 1.24, Administrative Citations, of this code.
1. 
A first violation of the smoking prohibitions in Section 9.27.025 will be subject to a warning. When available, city staff will endeavor to provide the person with information about available smoking cessation programs.
B. 
This section is not intended to preclude or otherwise limit any other remedy available to the city by law or in equity, including remedies under Chapters 1.16, Injunctive Relief, or 1.28, Administrative Remedies, of this code.
C. 
Prior to city staff undertaking any enforcement action for an alleged violation of this chapter:
1. 
For situations where a unit is leased, the landlord of the unit may be asked by city staff to: provide a copy of the existing lease agreement; and whether there is any available documentation of landlord's actions to achieve tenant's compliance with this chapter. City staff may reasonably request that the landlord take enforcement action as allowed by the rental agreement for violating the provisions of this chapter.
2. 
For situations where the unit is owner-occupied or leased, city staff may contact the condominium or townhome owners' association to provide staff with information about association rules and property to assist city staff with enforcement action.
D. 
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 enforcement of this chapter.
E. 
Failure to enforce any provision of 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. 2229 § 2, 2022)
A. 
If covenants, conditions, and restrictions (CC&Rs) governing a subject property are more restrictive than this chapter with regard to smoking, those CC&Rs shall control and shall be enforced by the homeowners' association or an owner.
B. 
A person in control of a subject property may impose more restrictions on smoking than this chapter, and that person shall enforce such restrictions.
(Ord. 2229 § 2, 2022)
A. 
This chapter is restrictive only. This chapter establishes 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 or private agreements with regard to smoking, including, for example, rights in nuisance, trespass, property damage, and personal injury or other legal or equitable principles.
B. 
If any provision of this chapter or the application thereof is held to be preempted, unconstitutional or otherwise invalid by a court of competent jurisdiction, such ruling shall not affect any other provision of this chapter that is not specifically included in such ruling or that can be given effect without the preempted, unconstitutional, or invalid provision or application; and to this end, the provisions of this chapter are declared severable.
(Ord. 2229 § 2, 2022)