Chapter 8.03
REGULATION OF SMOKING IN AND AROUND MULTI-UNIT RESIDENCES
Sections:
8.03.010 Application of chapter – Declaration of nuisance.
8.03.030 Smoking prohibited in common areas except designated smoking areas.
8.03.040 Smoking prohibited in new and existing units of multi-unit residences.
8.03.050 Additional smoking-related prohibitions.
8.03.070 Required and implied lease terms for all new and existing units in multi-unit residences.
8.03.090 Penalties and enforcement.
8.03.010 Application of chapter – Declaration of nuisance.
A. The provisions of this chapter shall apply to all multi-unit residences in the City of San Carlos.
B. Smoke produced in violation of this Code or State law is a nuisance, and the uninvited presence of such smoke on property is a nuisance and a trespass. (Ord. 1543 § 2 (part), 2019)
8.03.020 Definitions.
For the purposes of this chapter, the following definitions shall govern unless the context clearly requires otherwise:
A. “Common area” means every enclosed area or unenclosed area of a multi-unit residence accessible and usable by residents of different units including, but not limited to, halls and paths, 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.
B. “Common interest development” means a development as defined in California Civil Code Section 4100 et seq. or successor statute, as said provisions may be amended or succeeded, which includes a “condominium project,” a “community apartment project,” a “stock cooperative,” and a “planned development” and also includes a townhouse.
C. “Enclosed area” means:
1. Any full or partially covered area having more than fifty percent of its perimeter walled or otherwise closed to the outside with appropriate openings for ingress or egress ventilation; or
2. Any space open to the sky having more than seventy-five percent of its perimeter walled in or otherwise closed to the outdoors.
D. “Existing unit” means any unit that is not a new unit, including any associated exclusive-use enclosed or unenclosed areas.
E. “Landlord” means any person who owns property let for residential use, any person who lets residential property, and any person who manages such property, except that “landlord” does not include a master tenant who sublets a unit as long as the master tenant sublets only a single unit of a multi-unit residence.
F. “Multi-unit residence” or “multifamily dwelling” means residential property containing two or more units with one or more shared or abutting walls, floors, ceilings or shared ventilation systems including, but not limited to, a common interest development, condominium, townhouse, duplex, triplex, and apartment or other rental complex. A multi-unit residence does not include property owned by the State or Federal government or the following specifically excluded types of housing:
1. A hotel or motel that meets the requirements set forth in California Civil Code Section 1940(b)(2);
2. A residential care facility or assisted living facility governed by Federal or State community care licensing regulations;
3. A detached single-family residence; and/or
4. A detached single-family home with a detached or attached in-law or second unit when permitted pursuant to Government Code Sections 65852.1, 65852.150 and 65852.2 or an ordinance of the County adopted pursuant to those sections.
G. “New unit” means a unit that is issued a certificate of occupancy more than one hundred eighty days after the effective date of the ordinance codified in this chapter and also means a unit that is let for residential use for the first time more than one hundred eighty days after the effective date of the ordinance codified in this chapter.
H. “Nonsmoking area” means any enclosed area or unenclosed area of a multi-unit residence in which smoking is prohibited by: (1) this chapter or other law; (2) by binding agreement relating to the ownership, occupancy, or use of real property; or (3) by designation of a person with legal control over the area.
I. “Person” means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity, including government agencies.
J. “Rental complex” means a property for which fifty percent or more of units are let by or on behalf of the same landlord.
K. “Smoke” (noun) means any vapors, gases, particles or other byproducts released as a result of combustion or electrical ignition, when the apparent or usual purpose of the combustion or electrical ignition is human inhalation of the byproducts, except when the combusting or igniting material both contains no tobacco or nicotine and the usual purpose of inhalation is solely olfactory such as with the burning of incense. “Smoke” does not include combustion of substances regulated by the U.S. Food and Drug Administration and used for medical or therapeutic purposes. “Smoke” specifically includes but is not limited to gases, particles, vapors or other byproducts released by electronic cigarettes, 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 byproducts released as a result of combustion or ignition.
L. “Smoking” or “to smoke” (verb) means possessing a lighted or ignited tobacco or nicotine product or paraphernalia; or engaging in an act that generates smoke (including, but not limited to, possessing a lighted or ignited pipe, hookah pipe, cigar, or cigarette of any kind including but not limited to an electronic cigarette); 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.
M. “Tobacco or nicotine product” means any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping 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.
N. “Unenclosed area” means any area that is not an enclosed area. Unenclosed areas include balconies, porches, decks and patios.
O. “Unit” means a personal dwelling space for one or more persons, even where lacking cooking facilities or private plumbing facilities, and includes any associated exclusive-use enclosed area, such as, for example, a private balcony, porch, deck, or patio. (Ord. 1543 § 2 (part), 2019)
8.03.030 Smoking prohibited in common areas except designated smoking areas.
A. Smoking is prohibited in all units and in any unenclosed and enclosed common area or any other area, of a multifamily dwelling or multi-unit residence, and within thirty feet of any operable doorway, window, opening, or ventilation system, except that a person with legal control over a common area, or authorized representative of such person, 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 B of this section.
B. A designated smoking area:
1. Shall be an unenclosed and clearly delineated area, as described in this subsection B;
2. Shall be located at least thirty 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 and is a nonsmoking area;
3. Shall have a clearly marked perimeter and be identified by conspicuous signs;
4. Shall have receptacles designed for and primarily used for disposal of tobacco waste and shall be maintained free of tobacco-related litter including but not limited to cigarette butts;
5. Shall not include, and shall be at least thirty feet from, unenclosed areas primarily used by children and unenclosed areas with improvements that facilitate physical activity including playgrounds, swimming pools, and school campuses.
C. No person with legal control over a common or other area in which smoking is prohibited by this chapter or other law shall knowingly permit the presence of ashtrays, ash cans, or other receptacles designed for or primarily used for disposal of smoking waste within the area. Such person with legal control over a common or other area in which smoking is prohibited by this chapter or other law shall maintain such area free of tobacco litter or waste. (Ord. 1543 § 2 (part), 2019)
8.03.040 Smoking prohibited in new and existing units of multi-unit residences.
A. Smoking is prohibited and no person shall smoke in any new unit or common area of a multi-unit residence, except in a designated smoking area as provided herein.
B. Beginning fourteen months after the effective date of the ordinance codified in this chapter, smoking is prohibited and no person shall smoke in any existing unit or common area of a multi-unit residence, except in a designated smoking area as provided herein. (Ord. 1543 § 2 (part), 2019)
8.03.050 Additional smoking-related prohibitions.
A. No person shall smoke in any nonsmoking area.
B. No person with legal control over any nonsmoking area, or authorized representative of such person, shall knowingly permit smoking in any nonsmoking area which is under the person’s control. The person with legal control of the nonsmoking areas, or authorized representative of such person, shall keep the area free of any tobacco litter or waste.
C. No person shall intimidate or harass any person who seeks compliance with this chapter. Moreover, no person shall intentionally or recklessly expose another person to smoke in response to that person’s effort to achieve compliance with this chapter. Violation of this subsection shall constitute a misdemeanor.
D. Causing, permitting, aiding, or abetting a violation of any provision of this chapter shall also constitute a violation of this chapter. (Ord. 1543 § 2 (part), 2019)
8.03.060 Required signage.
“No smoking” signs 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 on the outside of each enclosed building or unenclosed area where smoking is prohibited by this chapter or other law, but are not required inside any unit of a multi-unit residence. Such signs shall be maintained by the person or persons with legal control over the common areas or the authorized representatives of such person. The absence of signs shall not be a defense to a violation of any provision of this chapter. (Ord. 1543 § 2 (part), 2019)
8.03.070 Required and implied lease terms for all new and existing units in multi-unit residences.
A. Every lease or other rental agreement for the occupancy of a new unit or existing unit in a multi-unit residence entered into, renewed, or continued month-to-month after the effective date of the ordinance codified in this chapter shall include the following:
1. A clause providing in substance that it is a material breach of the agreement for the tenant, or any other person subject to the control of the tenant or present by invitation or permission of the tenant, to (a) smoke in any common area of the property other than a designated smoking area, (b) smoke in a new unit, (c) smoke in an existing unit fourteen months or more after the effective date of the ordinance codified in this chapter, or (d) violate any law regulating smoking anywhere on the property.
2. A clear description of all areas on the property where smoking is allowed or prohibited.
3. A clause expressly conveying third-party beneficiary status to all tenants and lawful occupants of the multi-unit residence as to the smoking provisions of the agreement.
B. Whether or not a landlord complies with subsection A of this section, the clauses required by that subsection shall be implied and incorporated by law into every agreement to which subsection A of this section applies and shall become effective as of the earliest possible date on which the landlord could have made the insertions pursuant to subsection A of this section.
C. This chapter shall not create liability in a landlord or property manager 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 subsection A of this section.
D Failure to enforce any smoking provision required by 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. 1543 § 2 (part), 2019)
8.03.080 Medical marijuana.
As stated in California Health and Safety Code Section 11362.3, no person is permitted to smoke cannabis or cannabis products in a location where smoking tobacco is prohibited. Smoking or vaporizing of marijuana is not permitted in any unit of a multi-unit residence by this chapter. Such use of cannabis may be prohibited or regulated by other provisions of this Code, State law, or Federal law. (Ord. 1543 § 2 (part), 2019)
8.03.090 Penalties and enforcement.
A. Infractions. Any person who violates any provision of this chapter shall be guilty of an infraction, punishable as follows:
1. A fine not exceeding one hundred dollars for a first violation.
2. A fine not exceeding two hundred dollars for a second violation.
3. A fine not exceeding five hundred dollars for each additional violation within one year.
B. Misdemeanors. Any person who violates any provision of this chapter in excess of three times within one year shall be guilty of a misdemeanor.
C. Each day that a violation of this chapter continues shall constitute a separate violation of this chapter.
D. Enforcement of this chapter shall be the responsibility of the Chief Building Official and his or her designees. In addition, any peace officer may also enforce this chapter.
E. The remedies provided for by this chapter are not intended to preclude or otherwise limit any other remedy available by law or equity. (Ord. 1543 § 2 (part), 2019)
8.03.110 Interpretation.
A. The provisions of this chapter are restrictive only. This chapter establishes no new rights for a person who engages in smoking and shall in no way limit the application of Chapter 8.06. 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 with regard to smoking, including, for example, rights in nuisance, trespass, property damage, and personal injury or other legal or equitable principles. This chapter is intended and shall be interpreted to be consistent with and at least as stringent as any State statute prohibiting smoking in any unit, common area or other area of a new or existing multi-family dwelling, or any other place.
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 which is not specifically included in such ruling or which 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. 1543 § 2 (part), 2019)