Alameda Municipal Code § 24-12 Smoking Prohibitions in Housing

For the purposes of this section, the following definitions shall govern, in accord with state statute, unless the context clearly requires otherwise:

Cannabis means any and all parts of the plant cannabis sativa linnaeus, cannabis indica, or cannabis ruderalis, whether growing or not; the seeds thereof; the resin, whether crude or purified, extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin. "Cannabis" also means the separated resin, whether crude or purified, obtained from cannabis. "Cannabis" does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination. For the purpose of this section, "cannabis" does not mean "industrial hemp" as defined by Section 11018.5 of the Health and Safety Code.

Common area means every enclosed area or unenclosed area of a multi-unit residence that residents of more than one (1) unit of that multi-unit residence are entitled to enter or use, including, for example, halls and paths, lobbies and courtyards, elevators and stairs, community rooms and playgrounds, gym facilities and swimming pools, parking garages and parking lots, shared restrooms, shared laundry rooms, shared cooking areas, and shared eating areas.

Common interest complex means a multi-unit residence that is a condominium project, a stock cooperative, or a planned development as defined by California Civil Code Section 1351.

Enclosed area means an area in which outside air cannot circulate freely to all parts of the area, and includes:

1. Any covered or partially covered space having more than fifty (50%) percent of its perimeter area walled in or otherwise closed to the outside 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.

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 sublessors.

Multi-unit residence means any premises that contains two (2) or more units.

New unit means a unit that is issued a certificate of occupancy after the effective date of the ordinance codified in this section.

No smoking sign means a sign with letters of no less than one (1) inch in height or which contains the international "no smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle crossed by a red bar).

Non-smoking area means any enclosed area or unenclosed area of a multi-unit residence in which smoking is prohibited by: (1) this section 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. In the case of a smoking prohibition established only by private agreement or designation and not by this section or other law, it shall not be a violation of this section for a person to engage in smoking or to allow smoking in that area unless: (1) the person knows that smoking is not permitted; or (2) a reasonable person would know that smoking is not permitted.

Person means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity, including government agencies.

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 natural person or by legal persons under common control, with the exception of contiguous parcels that each have only one (1) detached single-family residence.

Rental complex means a multi-unit residence for which fifty-one (51%) percent or more of the units are let by or on behalf of the same landlord.

Smoking means possessing a lighted tobacco or cannabis product or lighted tobacco or cannabis paraphernalia, including but not limited to, a lighted pipe, lighted hookah pipe, lighted cigar, or lighted cigarette, including what is commonly referred to as electronic or e-cigarettes, or any device or product that delivers nicotine or cannabis. Smoking shall also include any nicotine-containing product, such as flavored tobacco, or any cannabis-containing product unless in accordance with state and local law, or any paraphernalia of any device or product that delivers nicotine (or other substances in tobacco) or cannabis, including cartridges, cartomizers, e-liquid, smoke juice, tips, atomizers, electronic smoking device batteries, electronic smoking device chargers, and any other item specifically designed for the preparation, charging, or use of any device or product that delivers nicotine (or other substances in tobacco) or cannabis.

Unenclosed area means any area that is not an enclosed area.

Unit means: (1) a dwelling space consisting of a group of rooms and including one (1) kitchen, a bath and sleeping quarters designed for and not occupied by more than one (1) family, 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).

(Ord. No. 3038 N.S., § 1, 11-1-2011; Ord. No. 3202 N.S., § 2, 11-21-2017)

a. All new units in multi-unit residential rental complexes are hereby designated non-smoking units.

b. All existing units in multi-unit rental complexes are hereby designated non-smoking units effective January 1, 2013, or when the legal occupants after the effective date of the ordinance codified in this section vacate a unit, whichever occurs first.

c. Smoking is prohibited in any associated exclusive-use enclosed or unenclosed areas of a designated non-smoking unit, such as, for example, a private balcony, porch, deck, or patio.

d. Smoking in a designated non-smoking unit, on or after January 1, 2013, is a violation of this subsection.

e. Smoking is prohibited in all common areas except that a person with legal control over a common area, such as, for example, a landlord, may designate a portion of the common area as a designated smoking area provided that at all times the designated smoking area complies with Section 24-12.5b below.

f. Required Lease Terms. Every lease or other agreement for the occupancy of a unit in a multi-unit rental complex shall include by January 1, 2013:

1. A clause stating that smoking is prohibited in the non-smoking unit; and

2. A clause stating that it is a material breach of the lease or agreement to:

(a) Violate any law regulating smoking while on the premises;

(b) Smoke in the non-smoking unit;

(c) Smoke in any common areas in which smoking is prohibited.

g. The California Apartment Association's Form 34.0, revised 1/11, meets the requirements required by subsection (f) above, and is an option for use to comply with this subsection.

h. Whether or not a landlord complies with subsection (f) above, the clauses required by that subsection shall be implied and incorporated by law into every agreement to which they apply.

i. A tenant who breaches the smoking regulations of a lease or knowingly allows another person to do so shall be liable to: (i) the landlord; and (ii) any occupant of the multi-unit residence who is exposed to secondhand smoke as a result of that breach. A landlord shall not be liable to any person for a tenant's breach of smoking regulations if the landlord has fully complied with the requirements of this section.

j. Failure to enforce any smoking regulation of a lease or agreement on one (1) or more occasions shall not constitute a waiver of the lease or agreement provisions required by this section and shall not prevent future enforcement of any such smoking regulation on another occasion.

(Ord. No. 3038 N.S., § 1, 11-1-2011)

a. In every new common interest complex that receives a certificate of occupancy after the effective date of this section, one hundred (100%) percent of the units (including private outdoor spaces associated with such units, such as balconies, patios and decks), shall be non-smoking units by law.

b. All existing units of a common interest complex, including private outdoor spaces associated with such units, such as balconies, patios and decks, are hereby designated non-smoking units as of January 1, 2013.

c. Smoking is prohibited in all common areas, except that a person with legal control over a common area, such as, for example, a homeowner's association, 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 24-12.5b below.

(Ord. No. 3038 N.S., § 1, 11-1-2011)

a. Smoking is prohibited in unenclosed areas of a multi-unit residence, including balconies, porches, decks, patios, and courtyards, within twenty (20') feet in any direction of any doorway, window, opening, or other vent into an enclosed area that is a non-smoking area.

b. A person with legal control over a common area, such as, for example, a landlord or homeowners' association, may designate a portion of the common area as a designated smoking area provided that at all times the designated smoking area complies with the following provisions:

1. Must be an unenclosed area.

2. Must be located at least twenty (20') feet from any enclosed area that is a non-smoking area. A person with legal control over a common area in which a designated smoking area has been designated shall modify, relocate or eliminate that designated smoking area so as to maintain compliance with the requirements of this section as laws change, as binding agreements are created, and as non-smoking areas on neighboring property are established.

3. Must be at least twenty (20') feet from unenclosed areas primarily used by children and unenclosed areas with improvements that facilitate physical activity including, for example, playgrounds, tennis courts, and swimming pools.

4. Must be no more than ten (10%) percent of the total unenclosed area of the multi-unit residence for which it is designated.

5. Must have a clearly marked perimeter.

6. Must be identified by conspicuous signs.

7. The person with legal control over a common area in which a smoking area has been designated by this section may permit the presence of ash trays, ash cans, or other receptacles designed for or primarily used for disposal of smoking waste within the area.

8. Clear and unambiguous "no smoking" signs shall be posted in sufficient numbers and locations to make common areas where smoking is prohibited by this section or other law obvious to a reasonable person. Such signs shall be maintained by the person or persons with legal control over the common areas. The absence of signs shall not be a defense to a violation of any provision of this section.

(Ord. No. 3038 N.S., § 1, 11-1-2011)

a. All landlords of rental complexes are required to disclose to prospective tenants whether smoking is permitted in the unit to be rented, which units are designated smoking units, if any, and the smoking policy for the complex. On and after January 2, 2012, all landlords of rental complexes are required to disclose to prospective tenants that smoking is prohibited in the units effective January 1, 2013, and the smoking policy for the complex.

b. All sellers of units within a common interest complex are required to disclose to prospective buyers that smoking is prohibited in the units effective January 1, 2013, and the smoking policy for the complex.

c. Every person with legal control over a multi-unit residence, such as, for example, a landlord or homeowners' association, shall maintain a diagram that illustrates the precise location and configuration of the premises' designated smoking area. This diagram shall accompany every lease or other agreement for the occupancy of a unit in a multi-unit residence executed on or after January 1, 2013.

(Ord. No. 3038 N.S., § 1, 11-1-2011)

a. Smoking is prohibited in any non-smoking area of a multi-unit residence established by this section.

b. No person shall knowingly permit smoking in an area of the premises under his or her legal or de facto control in which smoking is prohibited by this section, this Code, or any other state or federal law provided, however, that this prohibition shall not apply to a person who is already compelled to act under state or federal law.

c. No person shall knowingly permit the presence or placement of ash trays, cans, or other receptacles within multi-unit residence common areas under his or her legal or de facto control in which smoking is prohibited by this section, this Code, or any other state or federal law.

d. "No smoking" signs shall be clearly and conspicuously posted in multi-unit residence common areas, at every entrance, and on every floor where smoking is prohibited by this section or by other law. Such signs shall be maintained by the person or persons with legal control over the multi-unit residence common areas, entrances and floors. Signs must be posted in sufficient numbers and locations in the multi-unit residence common areas and at entrances and floors to make areas where smoking is prohibited obvious to a reasonable person. Signs are not required at the individual entrance of each multi-unit residence. The absence of signs shall not be a defense to a violation of any provision of this section.

e. This section shall not create additional liability for a landlord for a person's violation of this section, provided that the landlord has fully complied with the required disclosures, sign posting, and other provisions of this section.

f. The provisions of this section are restrictive only and establish no new rights for a smoker.

g. Notwithstanding any provision of this section or other provisions of this code, or failure to restrict smoking under this section, including any explicit or implicit provision that allows smoking, nothing in this section shall operate to limit any person's legal rights under other laws with regard to smoking, including, for example, claims of nuisance, trespass, property damage, and personal injury.

(Ord. No. 3038 N.S., § 1, 11-1-2011)

The remedies provided by this section are cumulative and in addition to any other remedies available at law or in equity.

a. Enforcement of this section shall be the responsibility of the Alameda Police Department, although any peace officer, or fire or code enforcement officer, may also enforce this section.

b. While a premises is undergoing otherwise mandatory inspections, fire and code enforcement officers shall inspect for compliance with this section.

c. Notice of this section will be provided to all applicants for a business license or renewal thereof; provided, however, lack of such notice shall be no defense to a violation of this section.

d. It shall be unlawful for any person to smoke in any area where smoking is prohibited under this section.

e. It is unlawful for any person who owns, manages, operates or otherwise controls the use of any premises subject to regulation under this section to refuse to comply with any of its provisions, or to permit any employee or patron to violate this section.

f. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this section.

g. Any person who violates any provision of this section shall be deemed guilty of an infraction, punishable by:

1. A fine not exceeding one hundred ($100.00) dollars for the first violation.

2. A fine not exceeding two hundred ($200.00) dollars for a second violation within one year.

3. A fine not exceeding five hundred ($500.00) dollars for each additional violation of this section within one (1) year.

h. Violations of this section are subject to a civil action brought by the City Attorney, punishable by a civil fine not less than two hundred fifty ($250.00) dollars and not exceeding one thousand ($1,000.00) dollars per violation.

(Ord. No. 3038 N.S., § 1, 11-1-2011)

a. Any person, including a legal entity or organization or a government agency, acting for the interests of itself, its members, or the general public, may bring a civil action to enforce this section 24-12. Upon proof of a violation, a court shall award the following:

1. Damages in the amount of either:

(a) Upon proof, actual damages; or

(b) With insufficient or no proof of damages, five hundred ($500.00) dollars for each violation of this section (hereinafter statutory damages). Unless otherwise specified in the section, each day of a continuing violation shall constitute a separate violation. Notwithstanding any other provision of this section, no person suing on behalf of the general public shall recover statutory damages based upon a violation of this section if a previous claim brought on behalf of the general public by another person or the City for statutory damages and based upon the same violation has been adjudicated, whether or not the person bringing the subsequent claim was a party to the prior adjudication.

2. Exemplary damages, where it is proven by clear and convincing evidence that the defendant is guilty of oppression, fraud, malice, retaliation, or a conscious disregard for the public health.

b. A person may also bring a civil action to enforce this section by way of an injunction or a conditional judgment. Upon proof of a violation, a court shall issue an injunction or a conditional judgment.

c. Nothing in this section prohibits a person from bringing a civil action in small claims court to enforce this section, so long as the amount in demand and the type of relief sought are within the jurisdictional requirements set forth in California Code of Civil Procedure Section 116.220.

(Ord. No. 3038 N.S., § 1, 11-1-2011)