Belmont Municipal Code Ch. 20.5 Regulation of Smoking

Footnotes:

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Editor's note— Section II of Ord. No. 1032, adopted Oct. 9, 2007, amended Ch. 20.5 to read as herein set out. Prior to such amendment, Ch. 20.5 consisted of §§ 20.5-1—20.5-24, which pertained to similar subject matter as enacted by Ord. No. 766, § 1, adopted May 12, 1987.

(a) The following words and phrases as used in this chapter have the meanings defined in this section unless the context clearly indicates otherwise.

(b) "Business" means any sole proprietorship, partnership, joint venture, corporation, association, landlord, or other entity formed for profit-making purposes.

(c) A "common interest development" means a development as defined in California Civil Code Section 1351(c).

(d) "Electronic Smoking Device" means an electronic device that can be used to deliver an inhaled dose of nicotine, or other substances, including any component, part, or accessory of such a device, whether or not sold separately. "Electronic Smoking Device" includes any such device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or descriptor.

(e) "Employee" means any person who is employed or retained as an independent contractor by any Employer in consideration for direct or indirect monetary wages or profit, or any person who volunteers his or her services for an Employer.

(f) "Employer" means any Business or Nonprofit Entity that retains the services of one or more Employees.

(g) "Landlord" means any person who owns real property leased as residential property, any person who lets residential property, or any person who manages such property. "Landlord" does not include sublessors.

(h) "Multi-unit residence" means a building or portion thereof that contains more than one dwelling unit including but not limited to apartments, common interest development, senior citizen housing, nursing homes, and single room occupancy hotels. A single family home with a second dwelling unit is not a "multi-unit residence."

(i) "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.

(j) "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 Chapter.

(k) "Place of Employment" means any area under the legal or de facto control of an Employer that an Employee or the general public may have cause to enter in the normal course of operations, but regardless of the hours of operation.

(l) "Public place" means any place, public or private, open to members of the general public regardless of any fee or age requirement.

(m) "Service area" means any publicly or privately owned area, including streets and sidewalks, designed to be or regularly used by one or more persons to receive or wait to receive a service, or make a transaction whether or not such service includes the exchange of money. The term "Service Area" includes but is not limited to ATMs, bank teller windows, telephones, ticket lines, bus stops or shelters, mobile vendor lines, and cab stands.

(n) "Significant tobacco retailer" means any tobacco retailer that derives seventy-five (75) percent or more of gross sales receipts from the sale or exchange of tobacco products and tobacco paraphernalia.

(o) "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. The term "Smoke" includes, but is not limited to, tobacco smoke, Electronic Smoking Device vapors, and the smoke or vapors from combusting or vaporizing any plant product intended for human inhalation.

"Smoke" does not include the product of combusting or vaporizing material that contains no tobacco or nicotine and the purpose of inhalation is solely olfactory, as for example smoke from incense. "Smoke" does not include the gases, particles, or vapors produced by a medical inhaler delivering a metered dose of prescription medication in compliance with federal law.

(p) "Smoking" means inhaling Smoke or possessing a lighted, heated, or ignited cigar, cigarette, cigarillo, pipe, hookah, or Electronic Smoking Device.

(q) "Tobacco product" means any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, snus, bidis, 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.

(r) "Unit" means: (1) a dwelling space consisting of essentially complete independent living facilities for one or more persons, including, for example, permanent provisions for living and sleeping, and any private outdoor spaces such as balconies, decks, 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. 1032, § II, 10-9-07; Ord. No. 2016-1095, § 2, 1-26-16)

For all purposes within the City of Belmont, nonconsensual exposure to secondhand smoke is a nuisance, and the uninvited presence of secondhand smoke on property is a nuisance and a trespass.

(Ord. No. 1032, § II, 10-9-07)

(a) Smoking is prohibited in the following indoor and outdoor places within the City of Belmont, except in places listed in subsection (b) below:

(1) Public places;

(2) Places of employment; and

(3) Multi-unit residence common areas; except that a landlord or common interest development may designate a portion of the outdoor area a smoking area. A designated smoking area:

(A) must be located at least twenty (20) feet from any operable window or door used by the public of an indoor area of a multi-unit residence where smoking is prohibited;

(B) must not include, and must be at least twenty (20) feet from, outdoor areas primarily used by children including, but not limited to, areas improved or designated for play or swimming;

(C) must be no more than twenty-five (25) percent of the total outdoor area of the premises for which it is designated;

(D) must have a clearly marked perimeter;

(E) must be identified by conspicuous signs; and

(F) must not overlap with any area in which smoking is otherwise prohibited by this chapter or other provisions of this Code, state law, or federal law.

(4) Individual units of multi-unit residences, if such units share at least one common floor or ceiling with another such unit.

(5) Service areas;

(b) Unless otherwise prohibited by law, smoking is not restricted by this chapter in the following places:

(1) By performers during theatrical productions, if smoking is an integral part of the story in the theatrical production;

(2) Detached single-family homes and the lots they are sited on, except those used as a child care or health care facility subject to licensing requirements;

(3) Up to ten (10) percent of hotel and motel guest rooms, if the hotel or motel permanently designates particular guest rooms as nonsmoking rooms such that ninety (90) percent or more of its guest rooms are nonsmoking and ashtrays and matches are permanently removed from such nonsmoking rooms. Permanent "no smoking" signage shall be posted in nonsmoking rooms;

(4) Significant tobacco retailers, if at all times minors are prohibited from entering the store;

(5) Individual units of multi-unit residences which do not share any common floors or ceilings with any other such unit;

(6) Any city-designated outdoor smoking areas;

(7) Automobiles;

(8) On streets and sidewalks, unless being used as outdoor workplaces or at city-sponsored events such as parades and fairs.

(c) Nothing in this chapter shall be construed to prohibit smoking in any area in which such smoking is already prohibited by state or federal law unless the applicable state or federal law does not preempt additional local regulation.

(Ord. No. 1032, § II, 10-9-07; Ord. No. 2016-1095, § 3, 1-26-16)

Editor's note— Ord. No. 2016-1095, § 4, adopted Jan. 26, 2016, repealed § 20.5-4 which pertained to a phase-in period for non-smoking units in multi-unit residences and derived from Ord. No. 1032, § II, adopted Oct. 9, 2007.

(a) For legal occupants on the effective date of this chapter, lease or rental agreement renewals for the occupancy of a unit in a multi-unit residence in which smoking is prohibited shall include:

(1) A clause stating that smoking is prohibited in the unit if the unit has been designated as a non-smoking unit;

(2) A clause stating that it is a material breach of the lease or agreement to (i) violate any law regulating smoking while on the premises; (ii) smoke in violation of a non-smoking lease term, such as smoking in a non-smoking unit; or (iii) smoke in any multi-unit residence common area in which smoking is prohibited by the landlord; and

(3) A clause stating that all lawful occupants of the multi-unit residence are express third-party beneficiaries of the above required clauses.

(4) A clause stating that terms (1)—(3) become effective fourteen (14) months after the effective date of this chapter, unless the landlord specifies an earlier effective date;

(b) For new tenants not in occupancy on the effective date of this chapter, every lease or other rental agreement for the occupancy of a unit in a multi-unit residence in which smoking is prohibited shall include:

(1) A clause stating that smoking is prohibited in the unit if the unit has been designated as a non-smoking unit;

(2) A clause stating that it is a material breach of the lease or agreement to (i) violate any law regulating smoking while on the premises; (ii) smoke in violation of a non-smoking lease term, such as smoking in a non-smoking unit; or (iii) smoke in any multi-unit residence common area in which smoking is prohibited by the landlord; and

(3) A clause stating that all lawful occupants of the multi-unit residence are express third-party beneficiaries of the above required clauses.

(c) The lease or agreement terms required by subsection (a) or (b) are hereby incorporated by force of law into any lease or other agreement for the occupancy of a unit in a multi-unit residence made on or after the effective date of the ordinance which adopted this section and which does not fully comply with subsection (a) or (b).

(d) 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) to any lawful 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 subsection (a).

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

(Ord. No. 1032, § II, 10-9-07)

(a) Smoking in outdoor areas shall be prohibited within twenty (20) feet of an entrance or exit used by the public, or operable window of an indoor area in which smoking is prohibited, except while actively passing on the way to another destination and so long as smoke does not enter any indoor area in which smoking is prohibited.

(b) Smoking in outdoor areas shall be prohibited within twenty (20) feet from any outdoor area in which smoking is prohibited by this chapter except while actively passing on the way to another destination.

(Ord. No. 1032, § II, 10-9-07)

(a) No person, employer, business, nonprofit entity, landlord, or common interest development shall knowingly permit the smoking in an area which is under the legal or de facto control of the person, employer, business, nonprofit entity, landlord, or common interest development and in which smoking is prohibited by law and the person, employer, business, nonprofit entity, landlord, or common interest development is not otherwise compelled to act under state or federal law.

(b) No person, employer, business, nonprofit entity, landlord, or common interest development shall knowingly or intentionally permit the presence or placement of ash receptacles, such as, for example, ash trays or ash cans, within an area which is under the legal or de facto control of the person, employer, business, nonprofit entity, landlord, or common interest development and in which smoking is prohibited, including, without limitation, inside the perimeter of any reasonable distance required by this chapter.

(c) Notwithstanding any other provision of this chapter, any owner, employer, business, nonprofit entity, landlord, common interest development or other person who controls any property, establishment, place of employment, public place, or multi-unit residence regulated by this chapter may declare any part of such area in which smoking would otherwise be permitted to be a nonsmoking area.

(d) "No Smoking" signs, with letters of no 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 crossed by a red bar) shall be clearly, sufficiently, and conspicuously posted in every indoor and outdoor place in which smoking is prohibited by this chapter, by the person, employer, business, nonprofit entity, landlord, or common interest development that has legal or de facto control of such place. At least one sign with the City of Belmont phone number where complaints can be directed must be conspicuously posted in every place in which smoking is prohibited. For purposes of this chapter, the city manager or designee shall be responsible for the posting of signs in regulated facilities owned or leased in part by the City of Belmont. Notwithstanding this provision, the presence or absence of signs shall not be a defense to the violation of any other provision of this chapter.

(Ord. No. 1032, § II, 10-9-07; Ord. No. 2016-1095, § 5, 1-26-16)

Editor's note— Ord. No. 2016-1095, § 6, adopted Jan. 26, 2016, repealed § 20.5-8 which pertained to medical marijuana and derived from Ord. No. 1032, § II, adopted Oct. 9, 2007.

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

(b) Each violation of this chapter by a person because of the person's smoking is an infraction subject to a one hundred dollar ($100.00) fine. Other violations of this chapter constitute misdemeanors punishable as provided in Section 1-8 of the Belmont Municipal Code or may, in the discretion of the city attorney, be prosecuted as infractions if the interests of justice so require. Any peace officer or code enforcement official may enforce this chapter.

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

(d) No person shall intimidate, harass, or otherwise retaliate against any person who seeks to attain compliance with this chapter. Moreover, no Person shall intentionally or recklessly expose another person to secondhand smoke in response to that person's effort to achieve compliance with this chapter. Violation of this subsection shall constitute a misdemeanor.

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

(f) Any violation of this chapter is hereby declared to be a nuisance.

(g) 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.

(Ord. No. 1032, § II, 10-9-07)