Beverly Hills Municipal Code Ch. 4 Smoking Regulations

COMMON AREA: Every interior or exterior area of a multi- unit residence or common interest development that residents of more than one unit of the multi-unit residence or owners of more than one unit of the common interest development are entitled to enter or use, including, for example, halls, paths, lobbies, courtyards, elevators, stairs, community rooms, recreation areas or rooms, playgrounds, gym facilities, swimming pools, jacuzzis, parking garages, parking lots, restrooms, laundry rooms, cooking areas, and eating areas. Common area shall also mean "common area" as defined in California Civil Code section 4095, or any successor legislation.

COMMON INTEREST DEVELOPMENT: A. A community apartment project as defined in California Civil Code section 4105, or any successor legislation,

B. A condominium project as defined in California Civil Code section 4125, or any successor legislation,

C. A planned development as defined in California Civil Code section 4175, or any successor legislation, and

D. A stock cooperative as defined in California Civil Code section 4190, or any successor legislation.

ELECTRONIC CIGARETTE: An electronic and/or battery operated device, the use of which may resemble smoking, which can be used to deliver an inhaled dose of nicotine or other substances. The term includes any such device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an e-cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or descriptor. The term does not include any inhaler prescribed by a licensed doctor.

ENCLOSED: Closed in by a roof and walls with appropriate openings for ingress and egress.

EXISTING LEASE: Any lease or rental agreement that allows a person to occupy a unit that was entered into before January 1, 2018.

HOME OWNERS' ASSOCIATION OR HOA: An organization or entity established for the purpose of managing and/or maintaining a common interest development. A homeowners' association shall also mean "association" as defined in California Civil Code section 4080, or any successor legislation.

HOTEL: Shall have the same definition as that set forth in title 10, chapter 3 of this Code.

LANDLORD: Any person who owns property let for residential use.

MIXED HOTEL/COMMON INTEREST DEVELOPMENT PROJECT: A project that is comprised of both a hotel and a common interest development. The project can be in any configuration such as, but not limited to, the hotel and common interest development being located in separate buildings, or the hotel and common interest development being located on separate floors of the same building.

MULTI-UNIT RESIDENCE: A residential property containing two (2) or more units on the same lot, where one or more of the units is offered for rent. The following types of housing are specifically excluded from this definition:

A. A single-family home;

B. A detached or attached accessory dwelling unit on a single-family zoned property;

C. A hotel;

D. A common interest development; and

E. A mixed hotel/common interest development project.

NEW LEASE: Any lease or rental agreement that allows a person to occupy a unit that was entered into, amended, or renewed on or after January 1, 2018. This includes any month-to-month lease that is renewed after January 1, 2018.

NONENCLOSED: A predominantly outdoor area that does not meet the definition of "enclosed", including, but not limited to, open air dining areas.

OPEN AIR DINING AREA: Any nonenclosed area located on private or public property made available to or customarily used by the general public that is designed, established or regularly used for consuming food and/or beverages or where food and/or beverages are served whether or not for compensation. This includes, but is not limited to, restaurants, hotels, bar standing and seating areas, patios, and coffee shops. An open air dining area does not include open air dining areas that are immediately adjacent to and accessory to a private smokers' lounge, as that term is defined in Labor Code section 6404.5 or its successor statute.

OWNER: The owner of a "separate interest" as that term is defined in California Civil Code section 4185, or any successor legislation.

SMOKE, SMOKING, VAPE OR VAPING: The carrying, holding, or operating of a lighted pipe, cigar, cigarette, electronic cigarette, or other kind of smoking equipment. Smoke also means the lighting, operating, emitting, or exhaling of the smoke or vapor of a pipe, cigar, cigarette, electronic cigarette or other kind of smoking equipment. Smoke also means the gaseous or vaporous products and particles created by the use of a lighted or operated pipe, cigar, cigarette, electronic cigarette or other kind of smoking equipment.

UNIT: Any personal dwelling space in a multi-unit residence or common interest development. A unit shall include any associated exclusive-use area, such as, for example, a private balcony, porch, deck, or patio. A unit shall also have the same meaning as "separate interest" as that term is defined in California Civil Code section 4185, or any successor legislation. (Ord. 14-O-2657, eff. 6-1-2014; amd. Ord. 17-O-2737, eff. 11-3-2017)

Smoking is prohibited in all open air dining areas located on private or public property, including the public right-of-way. In addition, smoking is prohibited within twenty feet (20') of an open air dining area, except smoking will be allowed if, and only if, the smoker is actively passing by the open air dining area. Notwithstanding this prohibition, smoking shall be allowed in up to twenty five percent (25%) of contiguous deck space surrounding hotel swimming pools. (Ord. 17-O-2730, eff. 5-5-2017)

Any business with an area subject to the prohibition set forth in section 5-4-2 of this chapter shall post or cause to be posted and shall maintain "no smoking" signs in conspicuous locations within said area. All such signs shall be prominently displayed, shall clearly recite the phrase "no smoking" and/or use the international no smoking symbol and shall cite section 5-4-2 of this chapter. Such signs shall be posted not less than five feet (5') nor more than eight feet (8') above floor level and shall be of sufficient number and location to cause the message of the signs to be clearly visible and readable and must be made of permanent, weather resistant materials. No person shall wilfully mutilate or destroy any sign required by this section. Signs required under this section are exempt from the sign requirements in title 10, chapter 4 of this Code. (Ord. 07-O-2518, eff. 10-1-2007)

A. Any person who owns, operates, manages, or controls any business regulated by this chapter may designate the entire business as a no smoking area.

B. The provisions of this chapter shall not be construed to require the owner, operator or manager of any existing business to make any structural or other physical alterations, modifications, or improvements to such business, other than the posting or placing of signs required by section 5-4-3 of this chapter. (Ord. 07-O-2518, eff. 10-1-2007)

Unless otherwise prohibited by State or Federal law, no person shall install, place, operate, or maintain within the City any cigarette vending machine. "Cigarette vending machine" shall mean any self-service device which, upon insertion of money or tokens, dispenses cigarettes or electronic cigarettes without the necessity of replenishing the device between each vending operation. (Ord. 14-O-2657, eff. 6-1-2014)

Smoking electronic cigarettes is prohibited in and around City public buildings in the City where smoking of tobacco products is prohibited by California Government Code section 7597 or any successor statute thereto. (Ord. 14-O-2657, eff. 6-1-2014)

Smoking electronic cigarettes is prohibited in all enclosed places of employment where smoking of tobacco products is prohibited by California Labor Code section 6404.5 or any successor statute thereto. (Ord. 14-O-2657, eff. 6-1-2014)

A landlord may prohibit the smoking of electronic cigarettes in the same manner as the smoking of tobacco products as provided by California Civil Code section 1947.5 or any successor statute thereto. (Ord. 14-O-2657, eff. 6-1-2014)

Smoking electronic cigarettes is prohibited in and around playgrounds and tot lots where smoking of tobacco products is prohibited by California Health and Safety Code section 104495 or any successor statute thereto. (Ord. 14-O-2657, eff. 6-1-2014)

Smoking electronic cigarettes is prohibited at all daycare facilities where smoking of tobacco products is prohibited by California Health and Safety Code sections 1596.795, 1596.890 or any successor statute thereto. (Ord. 14-O-2657, eff. 6-1-2014)

Smoking electronic cigarettes is prohibited on the City's public transit system and in City vehicles where smoking of tobacco or any other plant product is prohibited by California Health and Safety Code sections 118925 through 118945 or any successor statute thereto. (Ord. 14-O-2657, eff. 6-1-2014)

Smoking is prohibited in all outdoor service lines. For purposes of this section, an "outdoor service line" shall mean any outdoor 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 or transaction includes the exchange of money including, for example, ATMs, bank teller windows, telephones, ticket lines, information kiosks and takeout counters. (Ord. 14-O-2659, eff. 6-1-2014)

Smoking is prohibited in all farmers' markets. For purposes of this section, a "farmers' market" shall mean any food market at which local farmers sell fruit and vegetables and other items such as meat, cheese, and bakery products directly to consumers, whether on public or private property. (Ord. 14-O-2659, eff. 6-1-2014)

Smoking is prohibited in all public and private plazas except in areas of private plazas that are specifically set aside for smoking and designated by posted signage, provided that such areas are not within twenty feet (20') of building entrances or exits or designated pathways. For purposes of this section, a "public and private plaza" shall mean any unenclosed place, other than a publicly owned sidewalk, that is paved and permanently set aside for pedestrian use, including, for example, a courtyard, plaza or promenade. (Ord. 15-O-2680, eff. 7-9-2015)

Smoking is prohibited at all outdoor public gatherings, except in areas specifically set aside for smoking and designated by posted signage. For purposes of this section, an "outdoor public gathering" shall mean an unenclosed area where members of the general public are attending, viewing or participating in a group activity, such as a special event, parade or fair. (Ord. 14-O-2659, eff. 6-1-2014)

Smoking is prohibited in all City parks as designated in section 8-1-101 of this Code and in the Beverly Canon Gardens located at 241 N. Canon Drive in the City of Beverly Hills. (Ord. 17-O-2721, eff. 2-10-2017)

Smoking is prohibited in the public right-of-way (including all public sidewalks and alleyways) in the City, except smoking will be allowed if, and only if, the smoker is actively traveling on the public right-of-way. (Ord. 17-O-2730, eff. 5-5-2017)

Smoking in multi-unit residences shall be governed by the following rules:

A. Beginning January 1, 2018, the following regulations apply:

1. Smoking is prohibited in all common areas.

2. Smoking is prohibited in all units governed by a new lease.

3. A landlord shall not permit the presence of ash trays, ash cans, or other receptacles designed for, or primarily used for, the disposal of smoking waste within any common area.

4. Every new lease shall include a provision substantially consistent with the following: "Beverly Hills Municipal Code section 5-4-18 prohibits smoking in all common areas in a multi- unit residence, and in all units governed by a lease that was entered into, renewed, or amended after January 1, 2018. It is a material breach of this lease for the 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 on the property, including in the unit and common areas (as those terms are defined in Beverly Hills Municipal Code section 5-4-1), or to violate any law regulating smoking while anywhere on the property."

B. On or before January 1, 2018, the following regulations apply:

1. The landlord shall post, or shall cause to be posted, clear and unambiguous "No Smoking" signs in sufficient numbers and locations in the multi-unit residence to make it obvious to a reasonable person that smoking is prohibited in all common areas. The signs shall have letters of no less than one inch (1") 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 landlord. The absence of signs shall not be a defense to a violation of any provision of this chapter.

2. The landlord shall provide written notice to all tenants whose units are governed by existing leases stating that: a) smoking is prohibited in all common areas of the multi-unit residence beginning January 1, 2018, b) any unit that is governed by a lease that was entered into on or after January 1, 2018 is designated as a non-smoking unit, and c) any unit that is governed by a lease that was entered into before January 1, 2018 will be designated as a non-smoking unit when the lease is renewed or extended, or January 1, 2019, whichever is earlier, unless an earlier date is chosen by the landlord. The landlord does not need to comply with this provision if smoking is already prohibited in all common areas and units in the multi-unit residence.

C. In addition to the above, beginning January 1, 2019, smoking is prohibited in all units.

D. If the landlord has fully complied with subsections A4 and B1 and B2 of this section, the landlord shall not be criminally or civilly liable to any person for a person's breach of any smoking provision while on the multi-unit residence. (Ord. 17-O-2737, eff. 11-3-2017)

Smoking in common interest developments shall be governed by the following rules:

A. Beginning January 1, 2018, the following regulations apply:

1. Smoking is prohibited in all common areas.

2. The HOA, or any person having legal ownership over the common areas of a common interest development, shall not permit the presence of ash trays, ash cans, or other receptacles designed for, or primarily used for, the disposal of smoking waste within any common area.

3. If an owner enters into a new lease to lease a unit to a tenant, that unit shall be designated as a non-smoking unit until such time as the owner resumes the occupancy of the unit. Any new lease for the occupancy of a unit in a common interest development entered into, renewed, or amended on or after January 1, 2018, shall include a provision notifying the tenant that it is a material breach of the lease or other rental agreement to allow or engage in smoking in the common interest development. Such clause shall be substantially consistent with the following: "It is a material breach of this agreement for the 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 on the property, including in the unit and common areas (as those terms are defined in Beverly Hills Municipal Code section 5-4-1), or to violate any law regulating smoking while anywhere on the property."

B. On or before January 1, 2018, the following regulations apply:

1. The HOA, or any person having legal ownership over the common areas of the common interest, shall post clear and unambiguous "No Smoking" signs in sufficient numbers and locations in the common interest development to make it obvious to a reasonable person that smoking is prohibited throughout the common interest development. The signs shall have letters of no less than one inch (1") 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 HOA or any person with legal control over the common areas of the common interest development. The absence of signs shall not be a defense to a violation of any provision of this chapter.

2. The HOA shall provide written notice to all owners of units clearly stating that: a) smoking will be prohibited in all common areas of the common interest development beginning January 1, 2018, and b) that all units will become non-smoking beginning January 1, 2019. The HOA does not need to comply with this provision if smoking is already prohibited in all common areas and units in the common interest development.

C. In addition to the above, beginning January 1, 2019, smoking is prohibited in all units.

D. If the HOA Board has fully complied with subsections A2, and B1 and B2 of this section, the HOA shall not be criminally or civilly liable to any person as a result of an owner or any other person violating the smoking regulations while on the common interest development's property. If an owner has fully complied with subsection A3 of this section, then the owner shall not be criminally or civilly liable to any person for a tenant or a tenant's guest violating the smoking regulations while on the common interest development's property.

E. The above-referenced regulations will apply to a mixed hotel/common interest development project except as follows:

1. The regulations will not apply to the buildings, portions of the buildings, or any other areas that are designated as part of the hotel including, but not limited to, hotel rooms, and common areas that are used by hotel patrons and guests.

2. The regulations will not prohibit the designation of a smoking area in the hotel portion of the project regardless of whether the designated smoking area can be used by both hotel patrons and owners.

3. The regulations will not prohibit smoking at hotel swimming pools consistent with section 5-4-2 of this chapter. (Ord. 17-O-2737, eff. 11-3-2017)

A. It is unlawful for any person who owns, manages, operates or otherwise controls the use of any premises subject to the regulation under this chapter to fail to comply with its provisions.

B. It is unlawful for any person to smoke in any area where smoking is prohibited by the provisions of this chapter.

C. The City Prosecutor, any peace officer and any City Code Enforcement Officer shall have the authority to enforce the provisions of this chapter.

D. Punishment under this Code shall not preclude punishment pursuant to any provision of law pertaining to smoking or littering. Nothing in this chapter precludes any person from seeking any other remedies, penalties or procedures provided by law. The remedies provided in this Code are cumulative and in addition to any other remedies available at law or in equity.

E. No provision of this chapter shall authorize a criminal prosecution prohibited by Health and Safety Code sections 11362.71, et seq., or 11362.1, et seq. In the event of any conflict between the penalties enumerated under title 1 of this Code and any penalties set forth in State law, the maximum penalties allowable under State law shall govern. (Ord. 14-O-2659, eff. 6-1-2014; amd. Ord. 17-O-2721, eff. 2-10-2017; Ord. 17-O-2730, eff. 5-5-2017; Ord. 17-O-2737, eff. 11-3-2017)