City of Albany, CA § 17-1 SMOKING POLLUTION CONTROL [1]

[1] Editor's Note: Prior ordinance history includes portions of Ordinance Nos. 86-02 and 92-02.

§ 17-1.0 Title.

[Ord. #08-03, § 2]

Section 17-1 shall be known as Smoking Pollution Control.

§ 17-1.1 Findings and Purpose.

[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.

§ 17-1.2 Definitions.

[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).

§ 17-1.3 Prohibition of Smoking in Places of Employment and Certain Other Areas.

[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:

1. Places of Employment;

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:

1. Places of Employment;

2. Service Areas;

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.[1] 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;

[1] Editor's Note: Ordinance No. 08-03 was adopted June 9, 2008.

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.

§ 17-1.4 Reasonable Smoking Distance Required—25 Feet.

[Ord. #08-03, § 2]

a. Smoking in unenclosed areas shall be prohibited within a reasonable distance from any entrance, opening, crack, or vent into an enclosed area in which smoking is prohibited, except while actively passing on the way to another destination, and so long as smoke does not enter any enclosed area in which smoking is prohibited by any law or by the owner, lessee or licensee of the adjacent property.

b. Smoking in unenclosed areas shall be prohibited within a reasonable distance from any unenclosed area in which smoking is prohibited under subsection 17-1.3b, 1-8 of this section except while actively passing on the way to another destination.

§ 17-1.5 Duty of Person, Employer, Business, Landlord or Nonprofit Entity.

[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;

§ 17-1.6 Penalties and Enforcement.

[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]