Chapter 7.30
SMOKING REGULATED OR PROHIBITED1

Sections:

7.30.010    Definitions.

7.30.020    Smoking prohibitions.

7.30.030    Reasonable distance required.

7.30.040    Retaliation prohibited.

7.30.050    Interpretation.

7.30.060    Enforcement and penalties.

7.30.070    Secondhand smoke declared nuisance.

7.30.010 Definitions.

The following words and phrases, whenever used in this chapter, shall have the meanings defined in this section unless the context clearly requires otherwise:

(1)    "Business" means any sole proprietorship, partnership, joint venture, corporation, association, or other entity formed for profit-making purposes or that has an employee.

(2)    "City-sponsored event" means an event which the city of Menlo Park plans, administers, coordinates, and finances, and which is held upon property owned by the city of Menlo Park.

(3)    "Common interest development" means a development as defined in California Civil Code Section 1351(c), which includes condominium projects (including projects commonly known as townhomes or townhouses), community apartment projects, a planned development, or a stock cooperative.

(4)    "Dining area" means any area containing a counter or table upon which meals are served or any area designated, established, or regularly used for consuming meals.

(5)    "Employee" means any person who is employed; retained as an independent contractor by any employer; or any person who volunteers his or her services for an employer, association, nonprofit, or volunteer entity.

(6)    "Employer" means any person, partnership, corporation, association, nonprofit or other entity who employs or retains the service of one or more persons, or supervises volunteers.

(7)    "Enclosed" means closed by a roof and four walls with appropriate openings for ingress and egress.

(8)    "Multi-unit residence" means a building or portion thereof that contains more than one dwelling unit that shares a floor and/or ceiling, including, but not limited to, apartments, common interest development, senior citizen housing, nursing homes, and single room occupancy hotels.

(9)    "Multi-unit residence common area" means any indoor or outdoor area of a multi-unit residence accessible to and usable by residents of different units, including, but not limited to, halls and stairwells, paths, lobbies, laundry rooms, common cooking areas, outdoor eating areas, play areas, swimming pools, and parking areas. "Multi-unit residence common area" does not include areas available exclusively for use by the occupant(s) of the unit, including, but not limited to, balconies and patios.

(10)    "Nonprofit entity" means 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.

(11)    "Park and other recreation area" means any and all children’s play areas, playgrounds, swimming areas, sports fields, sports courts, skate parks, and picnic areas.

(12)    "Person" means any natural person, business, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, employer, nonprofit entity or any other legal entity except the city of Menlo Park.

(13)    "Place of employment" means 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, regardless of the hours of operation.

(14)    "Premises" means a piece of land and any improvements upon it such as is usually described in a deed, deed of trust, or mortgage, and includes legally separate but contiguous pieces of land that are owned by the same person or by multiple persons owning and operating the land under common control.

(15)    "Public place" means any place, public or private, open to members of the general public regardless of any fee or age requirement. Public place does not include, and smoking is permitted on, streets and sidewalks, driveways and uncovered parking lots (that do not contain a roof or ceiling) being used in a traditional capacity.

(16)    "Reasonable distance" means 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. Except as otherwise provided in this chapter, this distance shall be a minimum of 25 feet, unless the smoker is actively passing from one location to another, the smoker is in a location where smoking is permitted or the application of the 25-foot minimum would place the smoker in a potentially unsafe location; in which case a reasonable distance shall be a location closer than 25 feet which does not place the smoker in a potentially unsafe location.

(17)    "Restaurant" means any coffee shop, cafeteria, tavern, sandwich stand, soda fountain, private or public school cafeteria, and any other eating establishment, organization, club, boarding house or guest house, which gives or offers food for sale to the public, guests, patrons, members or employees.

(18)    "Secondhand smoke" means the tobacco smoke created by burning or carrying of any lighted pipe, cigar, or cigarette of any kind, and the smoke exhaled by an individual who engages in smoking. Secondhand aerosol emitted from electronic cigarettes as defined in Section 5.26.010(5) shall be considered secondhand smoke for purposes of this chapter.

(19)    "Service area" means any area designed to be or regularly used by one 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, but not limited to, ATMs, bank teller windows, telephones, ticket lines, bus stops, and cab stands.

(20)    "Smoking" or "smoke" means possessing a lighted tobacco product, or any other lighted weed or plant (including, but not limited to, a lighted pipe, lighted hookah pipe, lighted cigar, or lighted cigarette of any kind), or the lighting of a tobacco product, or any other weed or plant (including, but not limited to, a pipe, a hookah pipe, cigar, or cigarette of any kind) or use or operation of an electronic cigarette as defined in Section 5.26.010(5).

(21)    "Tobacco product" means any substance containing tobacco leaf, including, but not limited to, cigarettes, cigars, electronic cigarettes as defined in Section 5.26.010(5), pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, or any other preparation of tobacco; 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.

(22)    "Unit" means: (A) a dwelling space consisting of essentially complete independent living facilities for one or more persons, including permanent provisions for living and sleeping, and any private outdoor spaces such as balconies, decks, and patios; and (B) 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). (Ord. 1064 § 4, 2019; Ord. 972 § 2 (part), 2010).

7.30.020 Smoking prohibitions.

(a)    Enclosed Places. Smoking shall be prohibited in the following enclosed places:

(1)    Any enclosed public place, business, restaurant, or place of employment within the city, except in the enclosed places identified in California Labor Code Section 6404.5(d), or its successor. Notwithstanding the exception for enclosed places identified in California Labor Code Section 6404.5(d) or its successor, "place of employment" shall include private residences licensed as family daycare homes regardless of their hours of operation; and

(2)    Multi-unit residence common areas.

(b)    Unenclosed Places. Except as otherwise provided in subsection (d), (e) or (f) of this section, smoking shall be prohibited in the following unenclosed places:

(1)    Dining areas that are part of a restaurant, business, nonprofit entity, place of employment or located in any public place;

(2)    Places of employment;

(3)    Public places and parks and other recreation areas;

(4)    Service areas;

(5)    Any city-sponsored event, except in any area designated by the city as a smoking area. City-sponsored events may have one or more designated smoking areas of an appropriate size, provided the area is prominently marked with signs and is located a reasonable distance from areas of high pedestrian traffic;

(6)    Multi-unit residence common areas, except that smoking may be permitted on any driveway or uncovered parking lot and a portion of the outdoor area of the premises that may be designated as a smoking area. The designated smoking area shall be located a reasonable distance from any area where smoking is prohibited; be no more than twenty-five percent of the total outdoor area of the premises for which it is designated; have a clearly marked perimeter and be identified by one conspicuous sign at the designated smoking area and one conspicuous sign elsewhere on the premises; and not overlap with any area in which smoking is otherwise prohibited by this chapter or other provision of this code, state law, or federal law. If a suitable area cannot be determined, an exemption from the requirements of this section may be granted at the discretion of the city manager, or his designee; provided, that the smoking area does not overlap with any area in which smoking is otherwise prohibited by this chapter or other provision of this code, state law, or federal law.

(c)    Nothing in this chapter shall prevent a multi-unit residence from designating all or a portion of the units or all outdoor areas of the premises as nonsmoking, or prevent an employer from declaring any area in which smoking would otherwise be permitted a nonsmoking area.

(d)    No person shall provide or place ash receptacles such as, without limitation, ashtrays or ash cans, within an area in which smoking is prohibited, provided, however, ash receptacles may be placed within five feet of an entrance to a building.

(e)    Nothing in this chapter shall prohibit smoking within an unenclosed smoking area designated by a retail or wholesale tobacco shop, bar, restaurant or place of employment, provided the area is prominently marked with signs.

(f)    Nothing in this chapter shall prohibit smoking on streets and sidewalks, unless being used as outdoor workplaces, an outdoor eating area where smoking is prohibited, or at city-sponsored events, such as a parade or fair. (Ord. 972 § 2 (part), 2010).

7.30.030 Reasonable distance required.

Smoking shall be prohibited within a reasonable distance, as that term is defined in Section 7.30.010, from any entrance, exit, operable window, vent or other opening into an enclosed area in which smoking is prohibited, except while actively passing on the way to another destination and without entering or crossing any area in which smoking is prohibited. (Ord. 972 § 2 (part), 2010).

7.30.040 Retaliation prohibited.

No person or employer shall discharge, refuse to hire, or in any manner retaliate against any employee or applicant for employment because such employee or applicant exercises any right afforded by this chapter. (Ord. 972 § 2 (part), 2010).

7.30.050 Interpretation.

This chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws. In any dispute under this chapter, the rights of the nonsmoker shall be given precedence. (Ord. 972 § 2 (part), 2010).

7.30.060 Enforcement and penalties.

(a)    The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity.

(b)    Violations of this chapter shall be punishable as an infraction in accordance with Section 1.12.010.

(c)    In addition to other remedies provided by this chapter or by other law, any violation of this chapter may be remedied by a civil action brought by the city attorney, including, but not limited to, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.

(d)    Notwithstanding the foregoing, a private citizen may bring legal action to enforce this chapter. (Ord. 972 § 2 (part), 2010).

7.30.070 Secondhand smoke declared nuisance.

Secondhand smoke that impacts another nonconsenting person constitutes a private nuisance. A private citizen may bring a legal action against the person who is smoking to abate secondhand smoke as a nuisance, specifically including when secondhand smoke enters a unit of a multi-unit residence. A landlord shall not be liable to any person for the presence of secondhand smoke that impacts another nonconsenting person. (Ord. 972 § 2 (part), 2010).


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Prior ordinance history: Ordinances 723, 728 and 848.