Baldwin Park Municipal Code Ch. 94.5 Smokefree Multi-Family Housing

For the purposes of this chapter, the following definitions shall govern unless the context clearly requires otherwise:

COMMON AREA. Every enclosed area or unenclosed area of a multi-unit residence that residents of more than one 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. A multi-unit residence that is a condominium project, a community apartment project, a stock cooperative or a planned development as defined by Cal. Civil Code § 1351.

ENCLOSED AREA. An area in which outside air cannot circulate freely to all parts of the area, and includes an area that has:

(1) Any type of overhead cover, whether or not that cover includes vents or other openings, and at least three walls or other vertical boundaries of any height, whether or not those boundaries include vents or other openings; or

(2) Four walls or other vertical boundaries that exceed six feet in height, whether or not those boundaries include vents or other openings.

FAMILY DAY CARE HOME. Shall be defined as by Cal. Health and Safety Code § 1596.78.

LANDLORD. Any person who owns property with a multi-unit residence and lets that property for residential use, any person who lets residential property used as multi-unit residences, 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.

MULTI-UNIT RESIDENCE. Property containing two or more attached units, except the following specifically excluded types of housing:

(1) A hotel or motel that meets the requirements set forth in Cal. Civil Code § 1940(b)(2), as amended;

(2) A mobile home park;

(3) A campground;

(4) A detached single-family dwelling; and

(5) A detached single-family dwelling with a detached or attached “granny” or second unit, when permitted pursuant to Cal. Gov’t Code §§ 65852.1, 65852.150 or 65852.2, or an ordinance of the city adopted pursuant to those sections.

NEW UNIT. A unit that is issued a certificate of occupancy after June 2, 2012.

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

NONSMOKING UNIT. A unit within a multi-unit residence designated pursuant to and in accordance with §§ 94.5.040, 94.5.050 or 94.5.060.

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

RENTAL COMPLEX. A multi-unit residence for which 50% or more of the units are let by or on behalf of the same landlord.

SMOKE. 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 when the combusting or vaporizing material contains no tobacco or nicotine, and the purpose of inhalation is solely olfactory or congestion relief, such as, for example, smoke from incense or vapor from a congestion-relieving vaporizer. The term SMOKE includes, but is not limited to, tobacco smoke, electronic cigarette vapors, and marijuana smoke.

SMOKING. Engaging in an act that generates smoke, such as, for example: possessing a lighted pipe, a lighted hookah pipe, a lighted cigar, an operating electronic cigarette or a lighted cigarette of any kind, or lighting or igniting a pipe, a hookah pipe, a cigar or a cigarette of any kind.

SMOKING AREA. A location within a multi-unit residence designated pursuant to and in accordance with § 94.5.020(B).

UNENCLOSED AREA. Any area that is not an enclosed area.

UNIT. A personal dwelling space, even where lacking cooking facilities or private plumbing facilities, and includes any associated exclusive-use enclosed area or unenclosed area, such as, for example, a private balcony, porch, deck, or patio.

(Ord. 1332, passed 11-2-11)

(A) Smoking is prohibited in all common areas pursuant to § 94.5.090, except that 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 smoking area; provided, that at all times the smoking area, at a minimum, complies with division (B) below.

(B) For a location to be considered a smoking area, at a minimum, it:

(1) Must be an unenclosed area;

(2) Must be located at least 25 feet from any enclosed area that is a nonsmoking area; provided, that a person with legal control over a common area in which a smoking area has been designated shall modify, relocate or eliminate that smoking area so as to maintain compliance with the requirements of this division (B):

(a) As laws change;

(b) As binding agreements are created; and

(c) As nonsmoking areas on neighboring property are established;

(3) Must be at least 25 feet from unenclosed areas primarily used by children, and unenclosed areas with improvements that facilitate physical activity, including, for example, playgrounds, tennis courts, swimming pools and school campuses;

(4) Must be no more than 10% 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. The signs shall have letters of no less than one inch in height. Such signs shall be maintained by the person or persons with legal control over the smoking area.

(C) No person with legal control over a common area in which smoking is prohibited by this chapter or other law shall knowingly permit within the common area the presence of any ash tray, ash can or other receptacle designed for or primarily used for disposal of smoking waste.

(D) Clear and unambiguous “No Smoking" signs” shall be posted in sufficient numbers and locations to make common areas where smoking is prohibited by this chapter or other law obvious to a reasonable person. The signs shall have letters of no less than one inch in height or contain the international “No Smoking” symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle crossed by a red bar). 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 chapter.

(Ord. 1332, passed 11-2-11)

Smoking is prohibited in every unenclosed area of a multi-unit residence, including any balcony, porch, deck and patio, within 25 feet, in any direction, of any doorway, window, opening or other vent into an enclosed area that is a nonsmoking area.

(Ord. 1332, passed 11-2-11)

Each new unit of a multi-unit residence is hereby designated a nonsmoking unit, including, without limitation, each new unit in a rental complex or in a common interest complex.

(Ord. 1332, passed 11-2-11)

(A) Each unit of a common interest complex that is not a new unit is hereby designated as a nonsmoking units as of December 2, 2014; provided, that all the units of a common interest complex need not be designated as nonsmoking units if the members of a common interest complex fully comply with division (B) below.

(B) By a vote of the membership of the subject common interest complex, as provided in division (B)(1) below, the members of a common interest complex may choose to designate fewer than 100% of existing units as nonsmoking units by fully complying with the requirements stated in division (B)(1) through (4) below. Otherwise, division (A) above shall apply.

(1) A vote by the membership of the subject common interest complex on the threshold question of allowing less than 100% of units to be designated nonsmoking units must take place before September 2, 2014.

(2) No less than 80% of units of the of the subject common interest complex, that are not new units, shall be permanently designated as nonsmoking units.

(3) Where possible, best efforts shall be made to group nonsmoking units together, both horizontally and vertically, and physically separate them from units where smoking may be allowed.

(4) No later than December 2, 2014, the final designations must be made, and the following must be submitted in accordance with § 94.5.100:

(a) A description of each designated nonsmoking unit sufficient to readily identify each one; and

(b) A diagram depicting the location of each designated nonsmoking unit in relation to all other units of the of the subject common interest complex.

(Ord. 1332, passed 11-2-11)

(A) All units of a rental complex that are not new units are hereby designated nonsmoking units as of December 2, 2014; provided, that all the units of a rental complex need not be designated nonsmoking units if the applicable landlord fully complies with division (C) below.

(B) Unless a landlord fully complies with division (C) below, at least 60 days before December 2, 2014, the landlord shall provide each tenant with:

(1) A written notice clearly stating all units, including the tenant's unit, are designated nonsmoking units and smoking in a unit will be illegal as of December 2, 2014; and

(2) A copy of this chapter.

(C) A landlord may choose to designate fewer than 100% of existing units, which are not new units, of a rental complex as nonsmoking units by complying fully with the requirements stated in division (C)(1) through (7) below. However, division (A) above shall apply whenever a landlord takes no action or only partially complies with the requirements of this division.

(1) The landlord shall permanently designate at least 80% of units as nonsmoking units.

(2) To the maximum extent practicable, nonsmoking units must be grouped together, both horizontally and vertically, and physically separated from units where smoking may be allowed. Where possible, all units where smoking may be allowed shall be in a single building of a multi-building, multi-unit residence.

(3) No later than December 2, 2012, a landlord who chooses to designate fewer than 100% of the units of a multi-unit residence as nonsmoking units shall submit the following in accordance with § 94.5.100:

(a) A description of each designated nonsmoking unit sufficient to readily identify each one; and

(b) A diagram depicting the location of the designated nonsmoking units in relation to all other units.

(4) At least 60 days before submitting the designation of the nonsmoking units required by division (C)(3) above, the landlord shall provide each tenant with:

(a) A written notice of the proposed designations, clearly stating that smoking in a unit designated as a nonsmoking unit will be illegal as of December 2, 2014, and inviting comments on the proposed designations of nonsmoking units within the requisite timeline;

(b) A diagram depicting the location of the designated nonsmoking units in relation to all other units: and

(c) A copy of this chapter.

(5) A landlord may modify the proposed designations based upon comments received from tenants.

(6) At least 30 days before submitting the final designations of nonsmoking units required by division (C)(3) above, the landlord shall provide all tenants written notice of the final designations, clearly stating smoking in a designated nonsmoking unit will be illegal as of December 2, 2014, a copy of the final documents that will be submitted pursuant to § 94.5.090 of this chapter, and a diagram depicting the location of the designated nonsmoking units in relation to all other units shall be posted on the premises. Those final designations may differ from the proposed designations on which tenants were invited to comment.

(7) A unit in a rental complex for which a landlord is required to submit information pursuant to § 94.5.090 of this chapter, but for which such information, for any reason, is not fully and timely submitted, is hereby designated as a nonsmoking unit as of December 2, 2014.

(Ord. 1332, passed 11-2-11)

(A) Every lease or other rental agreement for the occupancy of a unit in a rental complex, including, for example, new units and existing units, entered into, renewed or continued month-to-month after December 2, 2011, shall include the provisions set forth in division (B) below, on the earliest possible date when such an amendment is allowable by law, when providing the minimum legal notice.

(B) Every lease or other rental agreement for the occupancy of a unit in a rental complex, including, for example, new units and existing units, entered into, renewed or continued month-to-month after December 2, 2011, shall be amended to include the following provisions:

(1) A clause providing that, as of December 2, 2014, it is a material breach of the agreement to allow or engage in smoking in the unit unless the landlord has supplied written notice the unit has not been designated a nonsmoking unit and no other prohibition against smoking applies. Such a clause might state, “It is a material breach of this agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to engage in smoking in the unit as of December 2, 2014, unless landlord has provided written notice the unit has not been designated a nonsmoking unit and smoking in the unit is not otherwise prohibited by this agreement, other agreements or by law.”

(2) A clause providing it is a material breach of the agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to engage in smoking in any common area of the property other than a smoking area. Such a clause might state, “It is a material breach of this agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to engage in smoking in any common area of the property, except in an outdoor area designated for smoking, if one exists."

(3) A clause providing it is a material breach of the agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to violate any law regulating smoking while anywhere on the property. Such a clause might state, “It is a material breach of this agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to violate any law regulating smoking while anywhere on the property.”

(4) A clause expressly conveying third-party beneficiary status to all occupants of the rental complex as to the smoking provisions of the agreement. Such a clause might state, “Other occupants of the property are expressly third-party beneficiaries of those provisions in this agreement that concern smoking. As such, other occupants of the property may seek to enforce such provisions by any lawful means, including by bringing a civil action in a court of law.”

(C) Whether or not a landlord complies with divisions (A) and (B) above, the clauses required by those divisions shall be implied and incorporated by law into every agreement to which division (A) or (B) applies, and shall become effective as of the earliest possible date on which the landlord could have made the insertions pursuant to division (A) or (B).

(D) A tenant who breaches a smoking provision of a lease or other rental agreement for the occupancy of a unit in a rental complex, or who knowingly permits any other person subject to the control of the tenant or present by invitation or permission of the tenant, shall be liable for the breach to:

(1) The landlord; and

(2) Any occupant of the rental complex exposed to smoke or suffering damages as a result of the breach.

(E) This chapter shall not create additional liability for a landlord 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 rental complex, if the landlord has fully complied with this section and § 94.5.060.

(F) 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. 1332, passed 11-2-11)

A landlord of a rental complex with less than 100% nonsmoking units shall provide to every prospective tenant, prior to entering into a new lease or other rental agreement for the occupancy of a unit in a rental complex, a copy of the designation documents submitted pursuant to § 94.5.060, describing each designated nonsmoking unit, with an accompanying diagram depicting the location of nonsmoking units in relation to all other units and every smoking area, if any.

(Ord. 1332, passed 11-2-11)

(A) No person shall engage in smoking in a common area on or after December 2, 2011, other than in a designated smoking area established pursuant to § 94.5.020.

(B) Smoking in a new unit, after June 2, 2012, is a violation of this chapter.

(C) Smoking in a designated nonsmoking unit, on or after December 2, 2014, is a violation of this chapter.

(D) No person shall engage in smoking in any nonsmoking area.

(E) No person with legal control over any nonsmoking area shall permit smoking in any nonsmoking area.

(Ord. 1332, passed 11-2-11)

State law prohibits smoking in a single-family dwelling licensed as a family day care home during operations of that facility for that purpose. If smoking is permitted and occurring at a location licensed as a family day care home during hours of non-operation of that facility for day care purposes, then the person with legal control over the family day care home must disclose, to the parents and guardians of the those potentially to be serviced by that facility, that smoking is permitted and does occur at that facility during those hours of non-operation.

(Ord. 1332, passed 11-2-11)

(A) Submissions required by this chapter must be received by the Community Development Department on or before any applicable due date. The submissions shall include all material and information required by this chapter, and such other materials and information as the Community Development Manager deems necessary for the administration and enforcement of this chapter.

(B) All material and information submitted pursuant to this chapter constitute disclosable public records and are not private or confidential.

(Ord. 1332, passed 11-2-11)

(A) The provisions of this chapter are restrictive only and establish no new rights for a person who engages in smoking. 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.

(B) For all purposes within the jurisdiction of the city, non-consensual exposure to smoke is a nuisance, and the uninvited presence of smoke on property is a nuisance and a trespass.

(Ord. 1332, passed 11-2-11)

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

(B) Subject to the remainder of this division, every instance of smoking in violation of this chapter is an infraction subject to a fine of $500; provided, that:

(1) A second instance of smoking in violation of this chapter within 12 consecutive months after a prior instance is an infraction subject to a fine of $750; and

(2) A third or any additional instance of smoking in violation of this chapter within 12 months after a second or any additional instance is an infraction subject to a fine or $1,000.

(C) Any peace officer, code enforcement official or the City Attorney may also enforce this chapter.

(D) Violations of this chapter are subject to a civil action brought by the city, punishable by a civil fine not less than $250 and not exceeding $1,000 per violation.

(E) No person shall intimidate, harass or otherwise retaliate against 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 division shall constitute a misdemeanor.

(F) Causing, permitting, aiding or abetting a violation of any provision of this chapter shall also constitute a violation of this chapter.

(G) Any violation of this chapter is hereby declared to be a public nuisance,

(H) In addition to other remedies provided by this chapter, or otherwise available at law or in equity, any violation of this chapter may be remedied by a civil action brought by the City Attorney, including, without limitation, administrative or judicial nuisance abatement proceedings, civil code enforcement proceedings and suits for injunctive relief.

(I) Except as otherwise provided, civil enforcement of this chapter is at the sole discretion of the city. Nothing in this chapter shall create a right of action in any person against the city or its agents to compel civil or criminal enforcement of this chapter against private parties.

(Ord. 1332, passed 11-2-11)

(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 chapter. Upon proof of a violation, a court shall award the following:

(1) Damages either:

(a) Upon proof, in the amount of actual damages; or

(b) With insufficient or no proof of damages, $500.00 for each violation of this chapter (hereinafter “statutory damages”). Each day of a continuing violation shall constitute a separate violation. Notwithstanding any other provision of this chapter, no person suing on behalf of the general public shall recover statutory damages, based upon a violation of this chapter, if a previous claim brought on behalf of the general public by another person 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 the defendant is guilty of oppression, fraud, malice, retaliation or a conscious disregard for the public health, in the amount, as determined by the fact-finder, necessary to further the public purpose of this chapter.

(B) Any person may also bring a civil action to enforce this chapter by way of a conditional judgment or an injunction. Upon proof of a violation, a court shall issue a conditional judgment or an injunction.

(C) Notwithstanding any legal or equitable bar against a person seeking relief on its own behalf, a person may bring an action to enforce this chapter solely on behalf of the general public. When a person brings an action solely on behalf of the general public, nothing about such an action shall act to preclude or bar the person from bringing a subsequent action, based upon the same facts but seeking relief on his, her or its own behalf.

(D) Nothing in this chapter prohibits a person from bringing a civil action in small claims court to enforce this chapter, so long as the amount in demand and the type of relief sought are within the jurisdictional requirements of that court.

(Ord. 1332, passed 11-2-11)

It is the intent of the City Council to supplement applicable state and federal law, not to duplicate or contradict such law. This chapter shall be construed consistently with that intention. If any section, division, paragraph, sentence, clause or phrase of this chapter, or its application to any person or circumstance, is for any reason held to be invalid or unenforceable, then such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, divisions, paragraphs, sentences, clauses or phrases of this chapter, or their application to any other person or circumstance. The City Council hereby declares it would have adopted each section, division, paragraph, sentence, clause or phrase of this chapter, irrespective of the fact any one or more other sections, divisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable.

(Ord. 1332, passed 11-2-11)