The city council of the city of Burlingame hereby 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 second-hand smoke, which has been
classified as a carcinogen, is a significant health hazard for all
persons; and
(c)
Health
hazards induced by breathing second-hand smoke include heart disease,
lung cancer, respiratory dysfunction, bronchoconstriction, bronchospasm,
and death; and
(d)
Nonsmokers
with allergies, respiratory diseases and those who suffer other ill
effects of breathing second-hand smoke may experience a loss of job
productivity or may be forced to take periodic sick leave because
of adverse reactions to same; and
(e)
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
(f)
Cigarette
butts, left as litter, are toxic to small children and wildlife that
may ingest them and contribute to the solid waste burden of public
space maintenance and stormwater processing facilities; and
(g)
Accordingly,
the city council finds and declares that the purpose of this chapter
is to protect the public health and welfare by prohibiting smoking
in public places and in places of employment, as set forth herein.
(Ord. 1481 § 1, (1993); Ord. 1901 § 1, (2014))
The following words and phrases, whenever used in this chapter,
shall be construed as defined in this section:
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 in that bar area is only incidental to the consumption
of such beverages. Although a restaurant may contain a bar, the term
"bar" shall not include the restaurant's primary dining area.
means the area within the Broadway Mixed Use (BRMU) Zoning
District, as shown on Figure 8.18.020-1.
means any sole proprietorship, partnership, joint venture,
corporation or other business entity formed for profit-making purposes,
including retail establishments where goods or services are sold as
well as professional corporations and other entities where legal,
medical, dental, engineering, architectural or other professional
services are delivered.
means the California State laws regarding smoking that are
codified in Labor Code Section 6404.5, inclusive of any future amendments.
means the area within the Burlingame Avenue Commercial (BAC),
Chapin Avenue Commercial (CAC), Donnelly Avenue Commercial (DAC),
and Howard Mixed Use (HMU) Zoning Districts, as shown on Figure 8.18.020-2.
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Figure 8.18.020-1 Broadway Pedestrian Retail District
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Figure 8.18.020-2 Downtown Burlingame Pedestrian Retail
District
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means any person who volunteers his or her services or who
is employed by any employer in consideration for direct or indirect
monetary wages or profit.
means any person, partnership, corporation or nonprofit entity
who employs the services of one or more persons.
shall have the same definition as in the California Clean
Indoor Air Law (Labor Code Section 6404.5), as may be amended, including
any clarification through an opinion of the California Attorney General's
Office or other applicable authority.
means any structure containing two or more contiguous dwelling
units that share a wall, floor, or roof.
means any corporation, unincorporated association or other
entity created for charitable, educational, political, social or other
similar purposes, the net proceeds from the operations of which are
committed to the promotion of the objects or purposes of the organization
and not to private financial gain. A public agency is a "nonprofit
entity" within the meaning of this section.
shall have the same definition as in the California Clean
Indoor Air Law (Labor Code Section 6404.5), as may be amended, including
any clarification through an opinion by the California Attorney General's
Office or other applicable authority.
means any enclosed area to which the public is invited or in which the public is permitted, including, but not limited to: banks, educational facilities, health facilities, public transportation facilities, reception areas, restaurants, retail food production and marketing establishments, rail service establishments, retail stores, theaters and waiting rooms. Public place also means that city-owned or operated property—whether enclosed or open-air—described in Section 8.18.030.
means any coffee shop, cafeteria, sandwich stand, soda fountain,
private or public school cafeteria and any other eating establishment,
organization, club, boardinghouse or guest house, which gives or offers
food for sale to the public, guests, patrons or employees.
shall have the same definition as in the California Clean
Indoor Air Law (Labor Code Section 6404.5), as may be amended, including
any clarification through an opinion of the California Attorney General's
Office or other applicable authority. Generally, this describes any
business establishment, the main purpose of which is the sale of tobacco
products, including, but not limited to, cigars, pipe tobacco, and
smoking accessories.
means indoor line at which one or more persons are waiting
for or receiving service of any kind, whether or not such service
includes the exchange of money.
shall have the same definition as in the California Clean
Indoor Air Law (Labor Code Section 6404.5), as may be amended, including
any clarification through an opinion of the California Attorney General's
Office or other applicable authority. Generally, this describes any
enclosed area in or attached to a retail tobacco shop that is dedicated
to the use of tobacco products, including, but not limited to, cigars
and pipes.
means inhaling, exhaling, burning or carrying any lighted
pipe, cigar or cigarette of any kind, or any other combustible substance.
For the purposes of this chapter, smoking shall also include the use
of any electronic smoking device or "vaping."
means sports pavilions, gymnasiums, health spas, boxing arenas,
swimming pools, athletic fields, roller and ice rinks, bowling alleys
and other similar places where members of the public assemble to engage
in physical exercise, participate in athletic competition or witness
sports events.
means any electronic or mechanical device or appliance the
operation of which depends upon the insertion of money, whether in
coin or paper currency, or other things representative of value, which
dispenses or releases a tobacco product.
(Ord. 1344 § 1, (1987); Ord. 1475 §§ 1, 2, (1993); Ord. 1481 § 1, (1993); Ord. 1901 § 1, (2014); Ord. 1919 § 1, (2015); Ord. 2016 § 5, (2023); Ord. 2021 § 5, (2023))
In order to avoid the adverse effects of smoking on members
of the public, employees, and property of the city, the city hereby
bans smoking at city facilities as described in this section.
(a)
Enclosed
Facilities. Smoking is prohibited in all enclosed facilities owned
by the city. For the purpose of this chapter, the building known as
the Burlingame Lions Hall shall not be considered a city-owned building.
(b)
Sports
Fields and Courts. Smoking is prohibited at all times within 25 feet
of the following:
(1)
Any bleachers, grandstands, playing fields, or dugouts of any city-owned
sports field commonly used for activities such as baseball, softball,
soccer, lacrosse, or football; and
(2)
Any city-owned sports courts commonly used for activities such as
tennis or basketball; and
(3)
Players' benches or spectator gathering areas during any city-conducted
or city-sponsored activity.
(c)
City
Events. Smoking is prohibited during the performance or conduct of
any city-conducted or city-sponsored event, including, but not limited
to, sports, entertainment, plays, ceremonies, pageants, fairs, or
training in any location that is close enough to the event that smoke
is traveling to or over participants or spectators of the event. The
director of parks and recreation is authorized, however, to designate
smoking areas at such an event where smoking is to be allowed notwithstanding
this subsection. This subsection does not apply to smoking by a person
who is passing through the area to another destination, or to smoking
by actors in a theatrical production if smoking is an integral part
of the production.
(d)
Specific
Areas. Smoking is further prohibited in, and within 25 feet of, the
following locations:
(1)
City-owned parking lots;
(2)
Burlingame Golf Center;
(3)
Murray Field;
(4)
Burlingame School District property, including fields and courts;
(5)
San Mateo Union High School District property, including fields and
courts;
(6)
City-owned playgrounds;
(7)
City-owned parks;
(8)
City-owned and maintained bayfront trails; and
(9)
Mills Canyon Park.
(e)
Posted
Areas. In addition to the facilities described above, the city manager
and the director of parks and recreation are authorized to post additional
city-owned or city-controlled facilities for "no smoking," and smoking
is prohibited in any such facility that is so posted.
(f)
City
Vehicles. Smoking is prohibited in any city-owned or city-controlled
vehicle.
(Ord. 1344 § 1, (1987); Ord. 1481 § 1, (1993); Ord. 1485 § 1, (1993); Ord. 1777 § 2, (2005); Ord. 1901 § 1, (2014))
(a)
Smoking
shall be prohibited in all enclosed public places, including, but
not limited to, the following places:
(1)
Elevators and restrooms;
(2)
Buses, taxicabs and other means of public transit under the authority
of the city of Burlingame;
(3)
Service lines;
(4)
Retail stores;
(5)
Restaurants;
(6)
All areas available to and customarily used by the general public
in all businesses and nonprofit entities patronized by the public,
including, but not limited to, business offices and banks;
(7)
Public areas of aquariums, libraries and museums when open to the
public;
(8)
Any building not open to the sky which is used primarily for exhibiting
any motion picture, stage drama, lecture, musical recital or other
similar performance, except when smoking is part of any such production;
(9)
Enclosed sports arenas;
(10)
Doctors' offices, dentists' offices, waiting rooms, hallways, wards
and semi-private rooms of health facilities, including, but not limited
to, hospitals, clinics and physical therapy facilities;
(11)
Every room, chamber, place of meeting or public assembly, including
school buildings under the control of any board, council, commission,
committee including joint committees, or agencies of the city or any
political subdivision of the state during such time as a public meeting
is in progress, to the extent such place is subject to the jurisdiction
of the city;
(12)
Lobbies, hallways, and other common areas in apartment buildings,
condominiums, senior citizen residences, nursing homes, and other
multiple-unit residential facilities;
(13)
Lobbies, hallways, and other common areas in multiple-unit commercial
facilities;
(14)
Polling places;
(15)
Warehouse facilities of any size.
(b)
In
addition to, and not in place of, all other prohibitions in this chapter
and under state and federal law, smoking shall also be prohibited
within the public right-of-way in the following open spaces:
(1)
Throughout the Downtown Burlingame and Broadway Pedestrian Retail
Districts. However, this prohibition shall expire at midnight on December
31, 2024.
(Ord. 1344 § 1, (1987); Ord. 1481 § 1, (1993); Ord. 1517 § 1, (1995); Ord. 1901 § 1, (2014); Ord. 2016 § 5, (2023); Ord. 2021 § 5, (2023))
Smoking is prohibited in all places of employment.
(Ord. 1344 § 1, (1987); Ord. 1481 § 1, (1993); Ord. 1901 § 1, (2014))
Smoking is prohibited in multifamily housing. The use of medical
marijuana with a valid prescription shall not be prohibited by this
provision, but shall be subject to all other applicable regulations
and prohibitions on creation of a nuisance.
(Ord. 1919 § 1, (2015))
(a)
Notwithstanding
any other provisions of this chapter to the contrary, the following
areas shall not be subject to the smoking restrictions of the chapter:
(1)
Private residences, other than those located in multifamily housing,
except when used as a child care or a health care facility. Common
areas or areas normally open to the public within residential apartments,
residential co-ops, residential hotels, senior citizen projects, or
other communal or similar facilities housing 12 or more persons shall
be subject to smoking restrictions;
(2)
Twenty percent of the guest room accommodations in a hotel, motel,
or similar transient lodging establishment;
(3)
Theatrical production sites, but only in a theatrical production
itself when smoking is an integral part of the story to the theatrical
production;
(4)
Cabs of motortrucks, as defined in Section 410 of the Vehicle Code,
or truck tractors, as defined in Section 655 of the Vehicle Code,
if no nonsmoking employees are present;
(5)
Retail tobacco shops and smokers' lounges;
(6)
Medical research or treatment sites, if smoking is integral to the
research and treatment being conducted. Such a site must have not
less than 16 air changes per hour;
(7)
Patient smoking areas in long-term health care facilities, as defined
by Section 1418 of the Health and Safety Code. Such an area shall
have not less than 16 air changes per hour.
(Ord. 1344 § 1, (1987); Ord. 1481 § 1, (1993); Ord. 1517 § 2, (1995); Ord. 1527 § 1, (1995); Ord. 1777 § 3, (2006); Ord. 1901 § 1, (2014); Ord. 1919 § 1, (2015); Ord. 2021 § 5, (2023))
(a)
"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 and conspicuously posted in every building or
other place where smoking is controlled by this chapter, by the owner,
operator, manager or other person having control of such building
or other place.
(b)
Every
theater owner, manager or operator shall conspicuously post signs
in the lobby stating that smoking is prohibited within the theater
or auditorium, and in the case of motion picture theaters, such information
shall be shown upon the screen for at least five seconds prior to
the showing of each feature motion picture.
(Ord. 1344 § 1, (1987); Ord. 1481 § 1, (1993); Ord. 1901 § 1, (2014))
(a)
It
is unlawful for any person to smoke in a place where smoking is prohibited.
(b)
It
is unlawful for any person who owns, manages or otherwise controls
the use of any premises subject to the prohibition of this chapter
to fail to post signs as required by this chapter or to knowingly
permit a violation of this chapter; provided, however, that employees
are not required to designate their individual work areas.
(Ord. 1344 § 1, (1987); Ord. 1481 § 1, (1993); Ord. 1901 § 1, (2014))
No person shall discharge, refuse to hire or in any manner discriminate
against any employee or applicant for employment because such employee
or applicant exercises any rights afforded by this chapter.
Further, no landlord, property manager, homeowners' association,
business manager, or other person in authority shall discriminate
or retaliate against any person for making a complaint to the person
or entity in authority, the city's code enforcement or police departments,
or to the county health department, regarding alleged violations of
this chapter, unless such complaints have been determined by a competent
court to be defamatory or malicious prosecution. Discrimination or
retaliation against persons making complaints regarding alleged violations
of this chapter shall themselves be deemed a violation of this code
and shall be punishable and enforceable under its provisions.
(Ord. 1344 § 1, (1987); Ord. 1481 § 1, (1993); Ord. 1901 § 1, (2014); Ord. 1964 § 1, (2019))
No person, business, or tobacco retailer shall locate, install,
keep, maintain or use, or permit the location, installation, keeping,
maintenance or use on his, her or its premises any vending machine
for the purpose of selling or distributing any tobacco product, except
that vending machines shall be permitted in bars, provided the vending
machines are not located adjacent or near any entrance of the bar.
(Ord. 1475 § 3, (1993); Ord. 1901 § 1, (2014))
(a)
Authority.
The provisions of Labor Code Section 6404.5 may be enforced by employees
of the San Mateo County Health System, as designated by the chief
of the health system, in addition to city employees, peace officers,
and state employees and officers. However, employees designated by
the county health system with the authority to enforce Labor Code
Section 6404.5 may only issue citations to employers and not to patrons,
customers, or other guests when exercising the authority conferred
by this subsection.
(b)
San
Mateo County Health System Employees as Public Officers. In the performance
of their duties of monitoring and enforcing compliance with Labor
Code Section 6404.5, and to the extent permitted by Labor Code Section
6404.5(j), the city confers all employees, as designated by the county
health system to engage in those enforcement efforts, the power, authority,
and immunity of a public officer to engage in that activity, and issue
citations as provided in this section.
(c)
Training
Program. In coordination with the sheriff of San Mateo County, the
Chief of the San Mateo County Health System and/or designees will
establish and cause to be administered an enforcement training program
designed to instruct each of the health services employees designated
to enforce under this section to exercise citation authority pursuant
to state law.
(Ord. 1599 § 2, (1998); Ord. 1901 § 1, (2014))
(a)
"Characterizing flavor"
"Constituent"
"Distinguishable"
"Flavored tobacco product"
"Labeling"
"Packaging"
"Tobacco product"
"Tobacco retailer"
Definitions. For the purposes of this section, the following
definitions shall govern unless the context clearly requires otherwise:
means a distinguishable taste or aroma or both, other than
the taste or aroma of tobacco, imparted by a tobacco product or any
byproduct produced by the tobacco product. Characterizing flavors
include, but are not limited to, tastes or aroma relating to any fruit,
chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage,
menthol, mint, wintergreen, herb, or spice. A tobacco product shall
not be determined to have a characterizing flavor solely because of
the use of additives or flavorings or the provision of ingredient
information. Rather, it is the presence of a distinguishable taste
or aroma, or both, as described in the first sentence of this definition,
that constitutes a characterizing flavor.
means any ingredient, substance, chemical, or compound, other
than tobacco, water, or reconstituted tobacco sheet that is added
by the manufacturer to a tobacco product during the processing, manufacture,
or packing of the tobacco product.
means perceivable by either the sense of smell or taste.
means any tobacco product that contains a constituent that
imparts a characterizing flavor.
means written, printed, pictorial, or graphic matter upon
any tobacco product or any of its packaging.
means a pack, box, carton, or container of any kind or, if
no other container, any wrapping (including cellophane) in which a
tobacco product is sold, or offered for sale, to a consumer.
means any product containing, made, or derived from tobacco
or nicotine that is intended for human consumption, including any
electronic device that delivers nicotine or other substances to the
person inhaling from the device, including, but not limited to, an
electronic cigarette, electronic cigar, electronic pipe, or electronic
hookah and the nicotine-containing liquids manufactured for use in
such devices.
means any store, stand, booth, concession or any other enterprise,
including an online or e-commerce vendor, that engages in the retail
sale of tobacco products, including, but not limited to, stores that
engage in the retail sale of food items. This definition shall apply
only to this section.
(b)
Sale or Offer for Sale of Flavored Tobacco Products Prohibited.
(1)
The sale or offer for sale within the city of Burlingame, including
a sale transacted remotely with delivery to an address within Burlingame,
by any person or tobacco retailer of any flavored tobacco product
is prohibited and no person or tobacco retailer shall sell, or offer
for sale, any flavored tobacco product.
(A)
The sale of Hookah/Shisha tobacco for immediate on-site consumption by a tobacco retailer holding a valid and unexpired city of Burlingame Tobacco Retailer Permit that specifically permits on-site hookah sales is exempted from this prohibition, so long as the tobacco retailer is in compliance with the permit and Chapter 8.19 of this title, as may be amended.
(2)
There shall be a rebuttable presumption that a tobacco product
is a flavored tobacco product if a manufacturer or any of the manufacturer's
agents or employees, in the course of their agency or employment,
has made a statement or claim directed to consumers or to the public
that the tobacco product has or produces a characterizing flavor including,
but not limited to, text, color, and/or images on the product's
labeling or packaging that are used to explicitly or implicitly communicate
that the tobacco product has a characterizing flavor.
(c)
Enforcement — Violation a Public Nuisance. The provisions of this section shall be enforced through the mechanisms provided in Title 1 of this code, and violations may be subject to administrative, civil, or criminal remedies as determined within the discretion of the city attorney as prosecutor. Violation of the provisions of this section is deemed to constitute a public nuisance and may be abated as such. Further, violation of this section shall constitute grounds for revocation of a violator's business license under Section 6.04.280. These remedies are in addition to, and not in place of, all enforcement options available to the city through Chapter 8.19 of this title as may be amended.
(d)
No Conflict with State or Federal Law. Nothing in this chapter
shall be interpreted or applied so as to create any requirement, power,
or duty that is preempted by federal or state law.
(Ord. 1970 § 1, (2019); Ord. 2026, 3/18/2024)
