CHAPTER 19
SMOKING
Article 1 GENERAL REGULATIONS
4.19.002 Purpose and Findings.
a. Numerous studies have found that tobacco smoke is a major contribution to indoor air pollution; and
b. Reliable studies have shown that breathing sidestream or 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 sidestream or secondhand smoke include lung cancer, respiratory infection, decreased exercise tolerance, decreased respiratory function, bronchoconstriction, and bronchospasm; and
d. Nonsmokers with allergies, respiratory diseases and those who suffer other ill effects of breathing sidestream or secondhand smoke may experience a loss of job productivity or may be forced to take periodic sick leave because of adverse reactions to smoke; and
e. The smoking of tobacco, or any other weed or plant, is a danger to health. Accordingly, it is determined that the health, safety and general welfare of the residents of, persons employed in, and persons who frequent this City would be benefited by the regulation of smoking in enclosed places, including places of employment.
f. The United States Environmental Protection Agency has determined that secondhand smoke is a Class A carcinogen for which there is no safe exposure level.
g. The United States Surgeon General has declared that nicotine is as addictive as cocaine or heroin; no other addictive product or drug is sold through vending machines.
4.19.004 Definitions.
As used in this section:
a. "Bar" shall mean an establishment which is devoted to the serving of alcoholic beverages and in which the service of food is only incidental to the consumption of such beverages. That area of a restaurant which is primarily devoted to the serving of alcoholic beverages and in which the service of food is only incidental to the consumption of such beverages shall also be considered a bar.
b. "Employee" shall mean a person who is employed by an employer in consideration for direct or indirect monetary wages or profit.
c. "Employer" shall mean a person, partnership, corporation, including municipal corporation or public entity, who employs the services of more than three persons.
d. "Enclosed" shall mean closed in by roof and four (4) walls with appropriate openings for ingress and egress.
e. "Place of employment" shall mean an enclosed area under the control of a public or private employer which employees normally frequent during the course of employment, including but not limited to work areas, employee lounges, conference rooms, and employee cafeterias. A private residence is not a place of employment unless it is used as a child care or health care facility. A dining area of a restaurant is not a place of employment.
f. "Smoke" and "smoking" shall be defined as follows: "Smoke" means the gases, particles, or vapors 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 for smoke from incense. The term "smoke" includes, but is not limited to, tobacco smoke, marijuana smoke and gases, particles, and vapors from electronic cigarettes. "Smoking" means engaging in an act that generates smoke, such as, for example: possessing a lighted pipe, a lighted hookah pipe, an operating electronic cigarette as defined in Section 4.19.011, a lighted cigar, or a lighted cigarette of any kind and a lighted marijuana joint, pipe, or other implement, and includes smoking marijuana for medical or recreational purposes; or lighting or igniting a pipe, a hookah pipe, a cigar or a cigarette.
g. "Sports arena" shall mean a sports pavilion, gymnasium, health spa, boxing area, swimming pool, roller or ice rink, bowling center, or other similar place where members of the public assemble to engage in physical exercise, participate in athletic competition or witness sports events.
h. "Vending machine" shall mean any electronic or mechanical device or appliance the operation of which requires the insertion of money, whether in coin or paper bill, or other thing representative of value, which in return dispenses or releases a tobacco product.
(Sec. 1, Ordinance No. 07-14, adopted July 8, 2014)
4.19.006 Regulation of Smoking In City.
All enclosed facilities owned by the City of Oakley are subject to the provisions of this chapter. Pursuant to Government Code Section 7597, facilities owned by the City of Oakley are also subject to the provisions of this chapter.
4.19.008 Prohibition of Smoking In Enclosed Places.
Smoking is prohibited in the following places within the City:
a. Enclosed Areas and Businesses. An enclosed area or business available to and customarily used by the general public including, but not limited to, a retail store, hotel, motel, pharmacy, bank, or office.
b. Restaurants. Within a restaurant, provided, however, that this prohibition does not apply to the bar area and outdoor seating areas of such restaurants.
c. Health Facilities. A waiting room, hallway, ward, or semi-private room of a health facility, including but not limited to a hospital, clinic or physical therapy facility, doctor’s office or dentist’s office, except that a health facility is also subject to the provisions of Section 4.19.010 regulating smoking in places of employment.
d. Transportation and Restroom Facilities. An elevator, public restroom, indoor service line, bus, taxicab or other means of public transit under the authority of a public entity, and in ticket, boarding, and waiting areas of public transit depots; provided, however, that this prohibition does not prevent (1) the establishment of separate waiting areas for smokers and nonsmokers, or (2) the establishment of at least 40% of a given waiting area as a nonsmoking area.
e. Museums and Galleries. In public areas of museums and galleries.
f. Theaters, Auditoriums and Halls. An enclosed theater, auditorium, or hall which is used for action pictures, stage dramas and musical performances, ballets or other exhibitions, except when smoking is part of any such production.
g. Retail Food Facilities. A retail food marketing establishment, including a grocery sore or supermarket, except those areas of such establishments set aside for the serving of food and drink, restrooms and offices, and areas thereof not open to the public, which may be otherwise regulated by other sections of this chapter.
h. Public Facilities and Schools. A public school or other public facility under the control of another public agency, which is available to and customarily used by the general public, to the extent that the same is subject to the jurisdiction of the City.
i. Nonsmoking Establishments. Notwithstanding any other provisions of this section, an owner, operator, manager or other person who controls an establishment described in this section may declare that entire establishment as a nonsmoking establishment.
j. Sports Arenas. Sports arenas and convention halls, except in designated smoking areas.
k. Child Care Facilities. Commercial child care facilities, whether conducted in a private residence or commercial structure.
4.19.010 Regulation of Smoking In Places of Employment.
a. Unless expressly exempted by this section, it is the responsibility of every employer within the City to provide a smoke-free workplace for all their employees. Employers shall prohibit smoking by anyone in any enclosed area of their business or workplace.
b. Within 60 days of the effective date of this section, each employer having an enclosed workplace within the City shall adopt, implement, maintain and post in at least one conspicuous location in such workplace a written smoking policy which shall contain the following minimum requirements: Smoking is prohibited in all enclosed spaces in this facility, without exception. This includes common work areas, auditoriums, classrooms, conference and meeting rooms, private offices, elevators, hallways, cafeterias, lounges and restrooms.
4.19.011 Use/Possession of Electronic Cigarettes by Minors Prohibited.
The use and/or possession of any electronic cigarette or electronic cigarette paraphernalia by a minor is prohibited except when not used or possessed in a public area and with the prior written consent of a parent or legal guardian. "Electronic cigarette" means a device that can provide an inhalable dose of nicotine by delivering a vaporized solution, irrespective of whether liquid nicotine is actually being vaporized. "Electronic cigarette paraphernalia" means any part of an electronic cigarette, or any cartridge or other liquid used for the purpose of vaporizing the liquid in an electronic cigarette. The legislative findings supporting this provision and portions of Section 4.19.004 are contained in a separate resolution adopted by the City Council.
(Sec. 3, Ordinance No. 07-14, adopted July 8, 2014)
4.19.012 Vending Machines.
Tobacco product vending machines may only be located in or on those premises constituting a bar as defined in this section. Tobacco product vending machines must be located at least 25 feet from any entry onto the premises.
4.19.014 Optional Smoking Areas.
Notwithstanding any other provisions of this section to the contrary, the following areas shall not be subject to the smoking restrictions of this section:
a. A private residence:
b. A hotel or motel room rented to guests;
c. A retail store that deals exclusively in the sale of tobacco and smoking paraphernalia.
4.19.016 Posting Requirements.
"Smoking" or "No Smoking" signs whichever are appropriate, 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, sufficiently 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. Each restaurant regulated by this section shall have posted at its entrance a sign clearly stating that a nonsmoking section is available, and every patron shall be asked as to his or her preference where a host or hostess is available.
4.19.018 Enforcement.
a. Administration and enforcement of this section shall be by the City Manager or his/her designee.
b. A citizen who desires to register a complaint under this section may initiate enforcement with the City Manager or his/her designee.
c. An owner, manager, operator or employer of an establishment regulated by this section may inform persons violating this section of the appropriate provision.
4.19.020 Penalties.
a. It is unlawful for a person who owns, manages, operates or otherwise controls the use of any premises subject to the restrictions of this section to fail to: properly post signs required hereunder; provide signs for the use of employees in designating their areas; properly set aside "No Smoking" areas; adopt a smoking restriction policy; or comply with any other requirement of this section.
b. It shall be unlawful for any person to smoke in an area restricted by the provisions of this section.
c. A person who violates this section shall be guilty of an infraction punishable by:
1) A fine, not exceeding $100 for first violation;
2) A fine, not exceeding $200 for a second violation of this section within one year;
3) A fine, not exceeding $500 for each additional violation of this section within one year.
4.19.022 Nonretaliation.
No person or employer may discharge, refuse to hire, or in any manner retaliate against an employee or applicant for employment because the employee or applicant exercises any rights afforded by this section.
4.19.024 Other Applicable Laws.
This section shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws.
Article 2 MULTI-UNIT RESIDENCES
4.19.102 Purpose and Findings.
The City Council has received a number of complaints from nonsmoker residents of multi-unit residences that residents who smoke in the project are causing secondhand smoke to intrude into the nonsmokers’ units.
a. The U.S. Surgeon General has concluded that there is no risk-free level of exposure to secondhand smoke.
b. The California Air Resources Board has placed secondhand smoke in the same category as the most toxic automotive and industrial air pollutants by categorizing it as a toxic air contaminant for which there is no safe level of exposure.
c. The California Environmental Protection Agency has included secondhand smoke on the Proposition 65 list of chemicals known to the State of California to cause cancer, birth defects and other reproductive harm.
The City Council, by enacting this article, intends to establish reasonable regulations to protect the public health, safety and welfare against the health hazards and harmful effects of the use of addictive tobacco products; and further to maintain a balance between the desires of persons who smoke and the need of nonsmokers to breathe smoke-free air, while recognizing that where these conflict, the need to breathe smoke-free air shall have priority. Because of the close proximity of living units in multi-unit residences, and sometimes due to shared heating, cooling and ventilation systems, and because of voids between units, secondhand smoke is a particularly sensitive issue to residents in multi-unit residences.
(Sec. 2, Ordinance No. 03-14, adopted February 11, 2014)
4.19.104 Definitions.
"Landlord" means any person who owns property let for residential use that is subject to this article and/or any person who manages such property.
"Multi-unit residence" means a building that contains two or more dwelling units, including but not limited to apartments, condominiums, senior citizen housing, nursing homes and single occupancy hotels. A single-family home with an attached or detached second unit is not a multi-unit residence, nor is a mobile home park, or a marina.
"Multi-unit residence common area" means any indoor or outdoor area of a multi-unit residence accessible to and usable by residents of different dwelling units, including but not limited to halls, lobbies, laundry rooms, common cooking areas, stairwells, outdoor eating areas, play areas, swimming pools and carports.
"Person" means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity including governmental agencies.
"Project" means a multi-unit residence, irrespective of the number of buildings or differing ownership thereof, which uses a common name or a common management.
"Smoke" means the gases, particles or vapors released into the air as a result of combustion, when the apparent or usual purpose of the combustion is human inhalation of the byproducts, but not including smoke from incense where no tobacco, nicotine or marijuana is present. The term "smoke" includes, but is not limited to, tobacco smoke, marijuana smoke, and crack cocaine smoke.
"Smoking" means engaging in an act that generates smoke, such as for example: possessing a lighted pipe, a lighted hookah pipe, a lighted cigar, or a lighted cigarette of any kind, including a lighted marijuana joint, pipe or other implement. "Smoking" includes smoking marijuana for medical or recreational purposes.
"Unit" means a personal dwelling space.
(Sec. 2, Ordinance No. 03-14, adopted February 11, 2014)
4.19.106 Smoking Prohibited.
Smoking is prohibited, and landlords of multi-unit residences must prohibit smoking, in the following areas:
a. All multi-unit residence common areas, except that a landlord may designate a portion of an outdoor common area as a smoking area. A designated smoking area of an outdoor common area of a multi-unit residence must not overlap with any area where smoking is otherwise prohibited by local, State, or federal law; must be located at least twenty-five (25) feet in all directions from nonsmoking areas; must not include areas primarily used by children; must be no more than twenty-five percent (25%) of the total outdoor common area; must have a clearly marked perimeter; and must be identified by conspicuous signs.
b. All areas within twenty (20) feet of doors, windows, air ducts and ventilation systems, except while passing on the way to another destination.
c. All outdoor balconies, porches, decks, patios and carports.
d. All units designated as nonsmoking units by the landlord.
e. All dwelling units in any new multi-unit residence that receives a building permit on or after April 1, 2014.
(Sec. 2, Ordinance No. 03-14, adopted February 11, 2014)
4.19.108 Disclosure of Nonsmoking Multi-Unit Residential Units.
In a multi-unit residence where units are rented or leased to tenants, the owner and manager of the project shall do all of the following:
a. Designate units where smoking is prohibited and where smoking is permitted, although all units may be designated as nonsmoking. To the extent practicable, in the judgment of the landlord, smoking-permitted units and smoking-prohibited units should be separated so as to minimize the intrusion of secondhand smoke into nonsmoking units. Once a unit has been designated by the landlord as a nonsmoking unit, it may not revert to or be designated as a smoking-permitted unit. If a tenant who is a smoker vacates a smoking-designated unit, the landlord can determine whether to re-designate that unit as nonsmoking, or to retain the smoking-permitted designation.
b. Maintain and keep on file at the premises: (1) a list of all designated nonsmoking units at the project; and (2) a floor plan of the project that identifies the location of all designated nonsmoking units, any units where smoking is permitted, and any designated outdoor smoking areas.
c. Disclose whether a policy for handling smoking complaints is in effect at the project, and if so, the terms of that policy.
d. Provide a copy of the list and floor plan and a copy of the policy addressing smoking complaints in effect at a multi-unit residence to each tenant along with every new lease or rental agreement for the occupancy of a unit in a multi-unit residence.
e. Make available upon request to the City for inspection at reasonable times the documents specified above.
(Sec. 2, Ordinance No. 03-14, adopted February 11, 2014)
4.19.110 Required Lease Terms.
a. Commencing not later than the operative date of the ordinance codified in this article, every lease and other rental agreement for the occupancy of a dwelling in a multi-unit residence that is entered into, renewed or continued month-to-month must include the terms specified in subsection (b) of this section on the earliest possible date allowed by law after providing legal notice.
b. Required Terms.
1) For any multi-unit residence where the landlord has designated separate smoking and nonsmoking dwelling units, a clause stating that smoking is prohibited in all dwelling units that have been designated as nonsmoking units and in common areas must be included in the written agreements specified in subsection (a) of this section.
2) For any multi-unit residence where the landlord has prohibited smoking in all dwelling units, a clause stating that smoking is prohibited in all dwelling units and common areas must be included in the written agreements specified in subsection (a) of this section.
3) A clause stating that it is a material breach of the lease or rental agreement to: (a) violate any law regarding smoking while on the premises; (b) smoke in a nonsmoking dwelling unit; or (c) smoke in any project common area where smoking is prohibited, must be included in the written agreements specified in subsection (a) of this section.
c. Lawful use of the California Apartment Association’s Form 34.0, revised January 2014, and as amended from time to time, may be used to comply with this section.
d. A landlord’s failure to enforce any smoking regulation of a lease or agreement on one or more occasions does not constitute a waiver of the lease or agreement provisions required by this section, and does not prevent future enforcement of the lease or agreement provisions required by this section.
e. A landlord is not liable under this article to any person for a tenant’s breach of smoking regulations if:
1) The landlord has fully complied with all provisions of this article; and
2) Upon receiving a signed written complaint regarding prohibited smoking, the landlord provides a warning to the offending tenant, stating that the tenant may be evicted if another complaint is received. Upon receiving a second signed, written complaint against the offending tenant, the landlord may evict the tenant or pursue other legal remedies available, but is not liable for failure to do so; and
3) The landlord maintains copies of the items specified in subsection (e)(2) of this section and makes such copies available upon request by the City at reasonable times.
(Sec. 2, Ordinance No. 03-14, adopted February 11, 2014)
4.19.112 Posting of Signs.
Not later than the operative date of the ordinance codified in this article, each landlord shall post signs pursuant to this section.
a. Signs shall have letters of no less than one inch in height or shall feature 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).
b. Signs shall be posted at each point of ingress into the multi-unit residence and at least one other conspicuous place in the common area.
c. If the landlord wishes to recite the Oakley Municipal Code provisions relating to smoking, the sign may reference "Oakley Municipal Code Title 4 Chapter 19."
d. The presence or absence of signs shall not be a defense to a charge of smoking in violation of any other provision of this chapter.
(Sec. 2, Ordinance No. 03-14, adopted February 11, 2014)
4.19.114 Compliance.
A person who owns, manages, operates or otherwise controls the use of any place where smoking is prohibited by this article may not knowingly or intentionally permit smoking in places where smoking is prohibited. For purposes of this section, a person has acted knowingly or intentionally if he or she has not taken the following actions to prevent smoking by another person: (a) requested that the person refrain from smoking; (b) requested that a person who is smoking leave the place if the person refuses to stop smoking after being asked to stop; (c) not complied with the requirements of this article. This section does not require the physical ejecting of a person from a place or taking steps to prevent smoking under circumstances that would involve a risk of physical harm.
Noncompliance with the terms of this article is a public nuisance and is subject to the enforcement and remedy provisions contained in this code.
(Sec. 2, Ordinance No. 03-14, adopted February 11, 2014)
Article 3 OUTDOOR AREAS
4.19.202 Definitions.
For the purposes of this article, the terms "smoke" and "smoking" shall have the same definitions as are contained in Section 4.19.004(f).
(Sec. 2, Ordinance No. 07-14, adopted July 8, 2014)
4.19.204 Prohibition of Smoking at City-Owned Facilities.
Smoking, as defined in Section 4.19.004(f), is prohibited at any enclosed or outdoor area owned by the City of Oakley, including, but not limited to, the following: parks, sports facilities, picnic areas, playgrounds, walking paths, hiking trails, amphitheaters, plazas, nature interpretative areas, or special-use recreational facilities such as ball fields, fishing piers, swimming pools, skateboard parks, etc. This section does not apply to smoking in privately owned vehicles traveling on City-owned streets, nor to pedestrians on concrete sidewalks. However, this section shall apply to streets or sidewalks closed for authorized farmer’s markets, festivals or parades. The presence or absence of signs prohibiting smoking shall not be a defense to a charge of smoking in violation of this section.
(Sec. 2, Ordinance No. 07-14, adopted July 8, 2014)
4.19.206 Prohibition of Smoking at Designated Private Facilities.
Smoking, as defined in Section 4.19.004(f), is prohibited at any outdoor area which is privately owned at the following locations: outdoor dining areas at bars and restaurants; all areas within twenty (20) feet of doors, windows, air ducts and ventilation systems; exterior areas of shopping centers and malls; automobile or vehicle display areas; swap meets, nurseries, Christmas tree lots, temporary outdoor sales and display areas, bus shelters, movie lines and outdoor sales areas and other similar locations. "No smoking" signs consisting of letters of not less than one inch in height, or the international "no smoking" symbol shall be conspicuously posted in every building or other place where smoking is regulated by section by the owner, operator, manager or other person having control of the place. The lack of a sign being posted shall not be a defense to a charge of smoking in violation of this section.
(Sec. 2, Ordinance No. 07-14, adopted July 8, 2014)