Brisbane Municipal Code Ch. 8.46 Smoking in Multi-Unit Residences

A. The provisions of this chapter shall apply to all multi-unit residences within the city limits and to all multi-unit residences owned or leased by the city, wherever located.

B. Smoke produced in violation of this chapter or state law is a nuisance, and the uninvited presence of such smoke on property is a nuisance and a trespass.

(Ord. No. 611, § 1, 11-3-16)

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

"Common area" means every enclosed or unenclosed area of a multi-unit residence accessible and usable by residents of different units including, but not limited to, halls and paths, lobbies, courtyards, elevators and stairs, community rooms, playground areas, gym facilities, swimming pool areas, parking garages and parking lots, shared restrooms, shared laundry rooms, shared cooking areas, and shared eating areas.

"Common interest development" means a development as defined in California Civil Code Section 4100 et seq. or successor statute, as said provisions may be amended or succeeded, which includes a "condominium project," a "community apartment project," a "stock cooperative," and a "planned development" and also includes a townhouse.

"Enclosed" means closed in by a roof and walls on all sides with appropriate openings for ingress and egress, windows and ventilation.

"Existing unit" means any unit that is not a new unit, including any associated exclusive-use enclosed or unenclosed areas.

"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 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" means, except as specifically excluded below, any residential property containing two (2) or more units with one or more shared or abutting walls, floors, ceilings or shared ventilation systems including, but not limited to, a common interest development, condominium, townhouse, duplex, triplex, and apartment or other rental complex. A "multi-unit residence" does not include any of the following excluded types of residential properties:

1. Property owned by the state or federal government;

2. A hotel or motel that meets the requirements set forth in California Civil Code Section 1940 (b)(2);

3. A residential care facility or assisted living facility governed by federal or state community care licensing regulations;

4. A detached, single-family residence; and/or

5. A detached, single-family home with a detached or attached in-law or second unit when permitted pursuant to Government Code Sections 65852.1, 65852.150, 65852.2 or an ordinance of the city adopted pursuant to those sections.

"New unit" means a unit that is issued a certificate of occupancy after the effective date of this ordinance and also means a unit that is let for residential use for the first time after the effective date of this ordinance.

"Nonsmoking area" means any enclosed area or unenclosed area of a multi-unit residence in which smoking is prohibited by: (1) 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 area.

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

"Rental" complex means a property for which 50 percent or more of units are let by or on behalf of the same landlord.

"Smoke" (noun) means any vapors, gases, particles or other by-products released as a result of combustion or electrical ignition, when the apparent or usual purpose of the combustion or electrical ignition is human inhalation of the byproducts, except when the combusting or igniting material both contains no tobacco or nicotine and the usual purpose of inhalation is solely olfactory such as with the burning of incense. Smoke does not include combustion of substances regulated by the United States Food and Drug Administration and used for medical or therapeutic purposes. Smoke specifically includes but is not limited to gases, particles, vapors or other by-products released by electronic cigarettes, tobacco cigarettes, herbal cigarettes, marijuana cigarettes and any other type of cigarette, pipe or other implement for the purpose of inhalation of vapors, gases, particles or other by-products released as a result of combustion or ignition.

"Smoking" or "to smoke" (verb) means possessing a lighted or ignited tobacco or nicotine product or paraphernalia; or engaging in an act that generates smoke (including, but not limited to, possessing a lighted or ignited pipe, hookah pipe, cigar, or cigarette of any kind including but not limited to an electronic cigarette); or lighting or igniting a pipe, a hookah pipe, a cigar, or a cigarette of any kind including but not limited to an electronic cigarette.

"Tobacco" or "nicotine product" means any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, or any other preparation of tobacco; and any electronic cigarette or other electronic device used to generate smoke; 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.

"Unenclosed" means not enclosed.

"Unit" means a personal dwelling space for one or more persons at a multi-unit residence, even where lacking cooking facilities or private plumbing facilities, and includes any associated exclusive-use enclosed or unenclosed area, such as, for example, a private balcony, porch, deck, or patio.

(Ord. No. 611, § 1, 11-3-16)

A. Smoking is prohibited in all units, all unenclosed and enclosed common areas, and all other areas of a multi-unit residence.

B. Notwithstanding subsection (a), a person with legal control over a common area, or authorized representative of such person, 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 (c) below.

C. A designated smoking area:

1. Shall be an unenclosed and clearly delineated area, as described in this subsection;

2. Shall be located at least thirty (30) feet in any direction from any operable doorway, window, opening or other vent into an enclosed area that is located at the multi-unit residence;

3. Shall have a clearly marked perimeter and be identified by conspicuous signs;

4. Shall have receptacles designed for and primarily used for disposal of tobacco waste and shall be maintained free of tobacco related litter including but not limited to cigarette butts;

5. Shall not include, and shall be at least thirty (30) feet in any direction from the following areas at the multi-unit residence: (a) areas primarily used by children; and (b) areas with improvements that facilitate physical activity including playgrounds and swimming pools.

D. No person with legal control over a common or other area in which smoking is prohibited by this chapter or other law shall knowingly permit the presence of ash trays, ash cans, or other receptacles designed for or primarily used for disposal of smoking waste within the area. Such person with legal control over a common or other area in which smoking is prohibited by this chapter or other law shall maintain such area free of tobacco litter or waste.

(Ord. No. 611, § 1, 11-3-16)

Beginning six (6) months after the effective date of the ordinance codified in this chapter, smoking is prohibited, and no person shall smoke in any existing unit, in any common area of a multi-unit residence or in any unit created after the effective date of the ordinance codified in this chapter, except in a designated smoking area as provided herein.

(Ord. No. 611, § 1, 11-3-16)

A. No person shall smoke in any nonsmoking area.

B. No person with legal control over any nonsmoking area, or authorized representative of such person, shall knowingly permit smoking in any nonsmoking area that is under the person's control. The person with legal control of the nonsmoking areas, or authorized representative of such person, shall keep the area free of any tobacco litter or waste.

C. No person shall intimidate or harass 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 subsection (c) shall constitute a misdemeanor.

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

(Ord. No. 611, § 1, 11-3-16)

A. "No smoking" signs 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 at each of the following areas where smoking is prohibited by this chapter:

1. On the outside of each enclosed building of a multi-unit residence but only if the building contains six (6) or more units;

2. At all enclosed common areas; and

3. At all unenclosed common areas with improvements that facilitate physical activity including playgrounds and swimming pools.

B. No signs are required by this chapter in any unit of a multi-unit residence.

C. The signs required by this chapter shall be maintained by the person or persons with legal control over the common areas or the authorized representatives of such person.

D. The absence of any sign required by this chapter shall not be a defense to a violation of any provision of this chapter.

(Ord. No. 611, § 1, 11-3-16)

A. Every lease or other rental agreement for the occupancy of a new unit or existing unit in a multi-unit residence entered into, renewed, or continued month-to-month after the effective date of this ordinance shall include the following:

1. A provision stating in substance that it is a material breach of the lease/rental 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 (i) smoke six (6) months or more after the effective date of the ordinance codified in this chapter in any existing unit or in any common area of the property other than a designated smoking area, (ii) smoke in a new unit or (iii) violate any law regulating smoking anywhere on the property.

2. A clear description of all areas on the property where smoking is allowed or prohibited.

3. A clause expressly conveying third-party beneficiary status to all tenants and lawful occupants of the multi-unit residence as to the smoking provisions of the agreement.

B. Every agreement for the purchase and sale of any multi-unit residence or any new or existing unit in a multi-unit residence entered into after the effective date of the ordinance codified in this chapter shall include the following:

1. A provision stating in substance that it is a material breach of the agreement for any resident of the multi-unit residence or unit, or any other person subject to the control of a resident or present by invitation or permission of a resident, to (i) smoke six (6) months or more after the effective date of the ordinance codified in this chapter in an existing unit or in any common area of the property other than a designated smoking area unless the property has any existing units, (ii) smoke in a new unit, or (iii) violate any law regulating smoking anywhere on the property.

2. A clear description of all areas on the property where smoking is allowed or prohibited.

3. A provision expressly conveying third-party beneficiary status to all property owners and lawful occupants of the multi-unit residence as to the smoking provisions of the agreement.

C. Whether or not a landlord, property manager, property owner or homeowners' association complies with the applicable provisions of subsections (a) and (b) of this section, the provisions required by those subsections shall be implied and incorporated by law into every agreement to which those subsections apply and shall become effective as of the earliest possible date on which the landlord, property manager, property owner or homeowners' association could have made the insertions pursuant to subsection (a) or (b).

D. This chapter shall not create liability in a landlord, property manager, property owner, or homeowners' association for a breach of any smoking provision in a lease or other rental agreement for the occupancy of a unit in a multi-unit residence, or in an agreement for the purchase and sale agreement of a multi-unit residence or any unit in a multi-unit residence if that person or entity has fully complied with the applicable provisions of subsections A and B of this section.

E. 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. No. 611, § 1, 11-3-16)

Notwithstanding any other provisions of this chapter, smoking of marijuana for medical purposes as permitted by California Health and Safety Code Sections 11362.7 et seq. in any unit is not prohibited by this Chapter. Notwithstanding the foregoing, such use of marijuana may be prohibited or regulated by other provisions of this code, state law, or federal law.

(Ord. No. 611, § 1, 11-3-16)

A. Infractions. Any person who violates any provision of this chapter shall be guilty of an infraction, punishable as follows:

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

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

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

B. Misdemeanors. Any person who violates any provision of this chapter in excess of three (3) times within one year, shall be guilty of a misdemeanor. Any single violation of subsection 8.46.050(C) shall constitute a misdemeanor, as set forth in that subsection.

C. Each day that a violation of this chapter continues shall constitute a separate violation of this chapter.

D. The remedies provided for by this chapter are not intended to preclude or otherwise limit any other remedy available by law or equity.

(Ord. No. 611, § 1, 11-3-16)

A. The provisions of this chapter are restrictive only. This chapter establishes no new rights for a person who engages in smoking and shall in no way limit the application of Chapter 8.45 of this code. Notwithstanding (i) any provision of this chapter or other provisions of this code, (ii) any failure by any person to restrict smoking under this chapter, or (iii) 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. This chapter is intended and shall be interpreted to be consistent with and at least as stringent as any state statute prohibiting smoking in any unit, common area or other area of a new or existing multi-unit residence, or any other place.

B. If any provision of this chapter or the application thereof is held to be preempted, unconstitutional or otherwise invalid by a court of competent jurisdiction, such ruling shall not affect any other provision of this chapter that is not specifically included in such ruling or that can be given effect without the preempted, unconstitutional, or invalid provision or application; and to this end, the provisions of this chapter are declared severable.

(Ord. No. 611, § 1, 11-3-16)