Chapter 8.18 — SMOKING

The city council of the city of Burlingame hereby finds that:

(a) Numerous studies have found that tobacco smoke is a major contributor to indoor air
pollution; and

(b) Reliable studies have shown that breathing second-hand smoke, which has been classified
as a carcinogen, is a significant health hazard for all persons; and

(c) Health hazards induced by breathing second-hand smoke include heart disease, lung
cancer, respiratory dysfunction, bronchoconstriction, bronchospasm, and death; and

(d) Nonsmokers with allergies, respiratory diseases and those who suffer other ill effects of
breathing second-hand smoke may experience a loss of job productivity or may be forced
to take periodic sick leave because of adverse reactions to same; and

(e) Smoking is a documented cause of fires, and cigarette and cigar burns and ash stains on
merchandise and fixtures cause economic losses to businesses; and

(f) Cigarette butts, left as litter, are toxic to small children and wildlife that may ingest them
and contribute to the solid waste burden of public space maintenance and stormwater
processing facilities; and

(g) Accordingly, the city council finds and declares that the purpose of this chapter is to protect
the public health and welfare by prohibiting smoking in public places and in places of
employment, as set forth herein.
(Ord. 1481 § 1, (1993); Ord. 1901 § 1, (2014))

The following words and phrases, whenever used in this chapter, shall be construed as defined in this section:

"Bar" means an area which is devoted to the serving of alcoholic beverages for consumption by patrons on the premises and in which the serving of food in that bar area is only incidental to the consumption of such beverages. Although a restaurant may contain a bar, the term "bar" shall not include the restaurant's primary dining area.

"Broadway Pedestrian Retail District" means the area within the Broadway Mixed Use (BRMU) Zoning District, as shown on Figure 8.18.020-1.

"Business" means any sole proprietorship, partnership, joint venture, corporation or other business entity formed for profit-making purposes, including retail establishments where goods or services are sold as well as professional corporations and other entities where legal, medical, dental, engineering, architectural or other professional services are delivered.

"California Clean Indoor Air Law" means the California State laws regarding smoking that are codified in Labor Code Section 6404.5, inclusive of any future amendments.

"Downtown Burlingame Pedestrian Retail District" means the area within the Burlingame Avenue Commercial (BAC), Chapin Avenue Commercial (CAC), Donnelly Avenue

Commercial (DAC), and Howard Mixed Use (HMU) Zoning Districts, as shown on Figure 8.18.020-2.

Figure 8.18.020-1 Broadway Pedestrian Retail District

Figure 8.18.020-2 Downtown Burlingame Pedestrian Retail District

"Employee" means any person who volunteers his or her services or who is employed by any employer in consideration for direct or indirect monetary wages or profit.

"Employer" means any person, partnership, corporation or nonprofit entity who employs the services of one or more persons.

"Enclosed" shall have the same definition as in the California Clean Indoor Air Law (Labor Code Section 6404.5), as may be amended, including any clarification through an opinion of the California Attorney General's Office or other applicable authority.

"Multifamily housing" means any structure containing two or more contiguous dwelling units that share a wall, floor, or roof.

"Nonprofit entity" means any corporation, unincorporated association or other entity created for charitable, educational, political, social or other similar purposes, the net proceeds from the operations of which are committed to the promotion of the objects or purposes of the organization and not to private financial gain. A public agency is a "nonprofit entity" within the meaning of this section.

"Place of employment or workplace" shall have the same definition as in the California Clean Indoor Air Law (Labor Code Section 6404.5), as may be amended, including any clarification through an opinion by the California Attorney General's Office or other applicable authority.

"Public place" means any enclosed area to which the public is invited or in which the public is permitted, including, but not limited to: banks, educational facilities, health facilities, public transportation facilities, reception areas, restaurants, retail food production and marketing establishments, rail service establishments, retail stores, theaters and waiting rooms. Public place also means that city-owned or operated property—whether enclosed or open-air—described in Section 8.18.030.

"Restaurant" means any coffee shop, cafeteria, sandwich stand, soda fountain, private or public school cafeteria and any other eating establishment, organization, club, boardinghouse or guest house, which gives or offers food for sale to the public, guests, patrons or employees.

"Retail tobacco shop" shall have the same definition as in the California Clean Indoor Air

Law (Labor Code Section 6404.5), as may be amended, including any clarification through an opinion of the California Attorney General's Office or other applicable authority. Generally, this describes any business establishment, the main purpose of which is the sale of tobacco products, including, but not limited to, cigars, pipe tobacco, and smoking accessories.

"Service line" means indoor line at which one or more persons are waiting for or receiving service of any kind, whether or not such service includes the exchange of money.

"Smokers' lounge," or "private smokers' lounge," shall have the same definition as in the California Clean Indoor Air Law (Labor Code Section 6404.5), as may be amended, including any clarification through an opinion of the California Attorney General's Office or other applicable authority. Generally, this describes any enclosed area in or attached to a retail tobacco shop that is dedicated to the use of tobacco products, including, but not limited to, cigars and pipes.

"Smoking" means inhaling, exhaling, burning or carrying any lighted pipe, cigar or cigarette of any kind, or any other combustible substance. For the purposes of this chapter, smoking shall also include the use of any electronic smoking device or "vaping."

"Sports arena" means sports pavilions, gymnasiums, health spas, boxing arenas, swimming pools, athletic fields, roller and ice rinks, bowling alleys and other similar places where members of the public assemble to engage in physical exercise, participate in athletic competition or witness sports events.

"Tobacco vending machine" means any electronic or mechanical device or appliance the operation of which depends upon the insertion of money, whether in coin or paper currency, or other things representative of value, which dispenses or releases a tobacco product. (Ord. 1344 § 1, (1987); Ord. 1475 §§ 1, 2, (1993); Ord. 1481 § 1, (1993); Ord. 1901 § 1, (2014); Ord. 1919 § 1, (2015); Ord. 2016 § 5, (2023); Ord. 2021 § 5, (2023))

In order to avoid the adverse effects of smoking on members of the public, employees, and property of the city, the city hereby bans smoking at city facilities as described in this section.

(a) Enclosed Facilities. Smoking is prohibited in all enclosed facilities owned by the city. For
the purpose of this chapter, the building known as the Burlingame Lions Hall shall not be
considered a city-owned building.

(b) Sports Fields and Courts. Smoking is prohibited at all times within 25 feet of the following:

(1) Any bleachers, grandstands, playing fields, or dugouts of any city-owned sports field
commonly used for activities such as baseball, softball, soccer, lacrosse, or football;
and

(2) Any city-owned sports courts commonly used for activities such as tennis or
basketball; and

(3) Players' benches or spectator gathering areas during any city-conducted or city-
sponsored activity.

(c) City Events. Smoking is prohibited during the performance or conduct of any city-
conducted or city-sponsored event, including, but not limited to, sports, entertainment,
plays, ceremonies, pageants, fairs, or training in any location that is close enough to the
event that smoke is traveling to or over participants or spectators of the event. The director
of parks and recreation is authorized, however, to designate smoking areas at such an event
where smoking is to be allowed notwithstanding this subsection. This subsection does not
apply to smoking by a person who is passing through the area to another destination, or to
smoking by actors in a theatrical production if smoking is an integral part of the production.

(d) Specific Areas. Smoking is further prohibited in, and within 25 feet of, the following
locations:

(1) City-owned parking lots;

(2) Burlingame Golf Center;

(3) Murray Field;

(4) Burlingame School District property, including fields and courts;

(5) San Mateo Union High School District property, including fields and courts;

(6) City-owned playgrounds;

(7) City-owned parks;

(8) City-owned and maintained bayfront trails; and

(9) Mills Canyon Park.

(e) Posted Areas. In addition to the facilities described above, the city manager and the director
of parks and recreation are authorized to post additional city-owned or city-controlled
facilities for "no smoking," and smoking is prohibited in any such facility that is so posted.

(f) City Vehicles. Smoking is prohibited in any city-owned or city-controlled vehicle. (Ord. 1344 § 1, (1987); Ord. 1481 § 1, (1993); Ord. 1485 § 1, (1993); Ord. 1777 § 2, (2005); Ord. 1901 § 1, (2014))

(a) Smoking shall be prohibited in all enclosed public places, including, but not limited to, the following places:

(1) Elevators and restrooms;

(2) Buses, taxicabs and other means of public transit under the authority of the city of
Burlingame;

(3) Service lines;

(4) Retail stores;

(5) Restaurants;

(6) All areas available to and customarily used by the general public in all businesses and
nonprofit entities patronized by the public, including, but not limited to, business
offices, and banks;

(7) Public areas of aquariums, libraries and museums when open to the public;

(8) Any building not open to the sky which is used primarily for exhibiting any motion
picture, stage drama, lecture, musical recital or other similar performance, except
when smoking is part of any such production;

(9) Enclosed sports arenas;

(10) Doctors' offices, dentists' offices, waiting rooms, hallways, wards and semi-private
rooms of health facilities, including, but not limited to, hospitals, clinics and physical
therapy facilities;

(11) Every room, chamber, place of meeting or public assembly, including school
buildings under the control of any board, council, commission, committee including
joint committees, or agencies of the city or any political subdivision of the state
during such time as a public meeting is in progress, to the extent such place is subject
to the jurisdiction of the city;

(12) Lobbies, hallways, and other common areas in apartment buildings, condominiums,
senior citizen residences, nursing homes, and other multiple-unit residential facilities;

(13) Lobbies, hallways, and other common areas in multiple-unit commercial facilities;

(14) Polling places;

(15) Warehouse facilities of any size.

(b) In addition to, and not in place of, all other prohibitions in this chapter and under state and
federal law, smoking shall also be prohibited within the public right-of-way in the
following open spaces:

(1) Throughout the Downtown Burlingame and Broadway Pedestrian Retail Districts.
(Ord. 1344 § 1, (1987); Ord. 1481 § 1, (1993); Ord. 1517 § 1, (1995); Ord. 1901 § 1, (2014);
Ord. 2016 § 5, (2023); Ord. 2021 § 5, (2023); Ord. 2033, 11/18/2024)

Smoking is prohibited in all places of employment. (Ord. 1344 § 1, (1987); Ord. 1481 § 1, (1993); Ord. 1901 § 1, (2014))

Smoking is prohibited in multifamily housing. The use of medical marijuana with a valid prescription shall not be prohibited by this provision, but shall be subject to all other applicable regulations and prohibitions on creation of a nuisance. (Ord. 1919 § 1, (2015))

(a) Notwithstanding any other provisions of this chapter to the contrary, the following areas shall not be subject to the smoking restrictions of the chapter:

(1) Private residences, other than those located in multifamily housing, except when used
as a child care or a health care facility. Common areas or areas normally open to the
public within residential apartments, residential co-ops, residential hotels, senior
citizen projects, or other communal or similar facilities housing 12 or more persons
shall be subject to smoking restrictions;

(2) Twenty percent of the guest room accommodations in a hotel, motel, or similar
transient lodging establishment;

(3) Theatrical production sites, but only in a theatrical production itself when smoking is
an integral part of the story to the theatrical production;

(4) Cabs of motortrucks, as defined in Section 410 of the Vehicle Code, or truck tractors,
as defined in Section 655 of the Vehicle Code, if no nonsmoking employees are
present;

(5) Retail tobacco shops and smokers' lounges;

(6) Medical research or treatment sites, if smoking is integral to the research and
treatment being conducted. Such a site must have not less than 16 air changes per
hour;

(7) Patient smoking areas in long-term health care facilities, as defined by Section 1418
of the Health and Safety Code. Such an area shall have not less than 16 air changes
per hour.

(b) The exception to smoking prohibitions contained in subsection (a)(4) above does not apply
to city-owned or city-controlled vehicles or equipment.
(Ord. 1344 § 1, (1987); Ord. 1481 § 1, (1993); Ord. 1517 § 2, (1995); Ord. 1527 § 1, (1995);
Ord. 1777 § 3, (2006); Ord. 1901 § 1, (2014); Ord. 1919 § 1, (2015); Ord. 2021 § 5, (2023))

(a) "No Smoking" signs with letters of not 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 with a red bar across it, shall be clearly and conspicuously posted in every building or other place where smoking is controlled by this chapter, by the owner, operator, manager or other person having control of such building or other place.

(b) Every theater owner, manager or operator shall conspicuously post signs in the lobby stating that smoking is prohibited within the theater or auditorium, and in the case of motion picture theaters, such information shall be shown upon the screen for at least five seconds prior to the showing of each feature motion picture. (Ord. 1344 § 1, (1987); Ord. 1481 § 1, (1993); Ord. 1901 § 1, (2014))

(a) It is unlawful for any person to smoke in a place where smoking is prohibited.

(b) It is unlawful for any person who owns, manages or otherwise controls the use of any
premises subject to the prohibition of this chapter to fail to post signs as required by this
chapter or to knowingly permit a violation of this chapter; provided, however, that
employees are not required to designate their individual work areas.

(c) Any person who violates this section may be subject to civil and criminal penalties, as
defined in Chapters 1.12 and 1.14 of this municipal code.
(Ord. 1344 § 1, (1987); Ord. 1481 § 1, (1993); Ord. 1901 § 1, (2014))

No person shall discharge, refuse to hire or in any manner discriminate against any employee or applicant for employment because such employee or applicant exercises any rights afforded by this chapter.

Further, no landlord, property manager, homeowners' association, business manager, or other person in authority shall discriminate or retaliate against any person for making a complaint to the person or entity in authority, the city's code enforcement or police departments, or to the county health department, regarding alleged violations of this chapter, unless such complaints have been determined by a competent court to be defamatory or malicious prosecution. Discrimination or retaliation against persons making complaints regarding alleged violations of this chapter shall themselves be deemed a violation of this code and shall be punishable and enforceable under its provisions. (Ord. 1344 § 1, (1987); Ord. 1481 § 1, (1993); Ord. 1901 § 1, (2014); Ord. 1964 § 1, (2019))

No person, business, or tobacco retailer shall locate, install, keep, maintain or use, or permit the location, installation, keeping, maintenance or use on his, her or its premises any vending machine for the purpose of selling or distributing any tobacco product, except that vending machines shall be permitted in bars, provided the vending machines are not located adjacent or near any entrance of the bar. (Ord. 1475 § 3, (1993); Ord. 1901 § 1, (2014))

(a) Authority. The provisions of Labor Code Section 6404.5 may be enforced by employees of the San Mateo County Health System, as designated by the chief of the health system, in addition to city employees, peace officers, and state employees and officers. However, employees designated by the county health system with the authority to enforce Labor Code Section 6404.5 may only issue citations to employers and not to patrons, customers, or other guests when exercising the authority conferred by this subsection.

(b) San Mateo County Health System Employees as Public Officers. In the performance of their duties of monitoring and enforcing compliance with Labor Code Section 6404.5, and to the extent permitted by Labor Code Section6404.5(j), the city confers all employees, as designated by the county health system to engage in those enforcement efforts, the power, authority, and immunity of a public officer to engage in that activity, and issue citations as provided in this section.

(c) Training Program. In coordination with the sheriff of San Mateo County, the Chief of the San Mateo County Health System and/or designees will establish and cause to be administered an enforcement training program designed to instruct each of the health services employees designated to enforce under this section to exercise citation authority pursuant to state law. (Ord. 1599 § 2, (1998); Ord. 1901 § 1, (2014))

(a) Definitions. For the purposes of this section, the following definitions shall govern unless the context clearly requires otherwise:

"Characterizing flavor" means a distinguishable taste or aroma or both, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product. Characterizing flavors include, but are not limited to, tastes or aroma relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb, or spice. A tobacco product shall not be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information. Rather, it is the presence of a distinguishable taste or aroma, or both, as described in the first sentence of this definition, that constitutes a characterizing flavor.

"Constituent" means any ingredient, substance, chemical, or compound, other than tobacco, water, or reconstituted tobacco sheet that is added by the manufacturer to a tobacco product during the processing, manufacture, or packing of the tobacco product.

"Distinguishable" means perceivable by either the sense of smell or taste.

"Flavored tobacco product" means any tobacco product that contains a constituent that imparts a characterizing flavor.

"Labeling" means written, printed, pictorial, or graphic matter upon any tobacco product or any of its packaging.

"Packaging" means a pack, box, carton, or container of any kind or, if no other container, any wrapping (including cellophane) in which a tobacco product is sold, or offered for sale, to a consumer.

"Tobacco product" means any product containing, made, or derived from tobacco or nicotine that is intended for human consumption, including any electronic device that delivers nicotine or other substances to the person inhaling from the device, including, but not limited to, an electronic cigarette, electronic cigar, electronic pipe, or electronic hookah and the nicotine-containing liquids manufactured for use in such devices.

"Tobacco retailer" means any store, stand, booth, concession or any other enterprise, including an online or e-commerce vendor, that engages in the retail sale of tobacco products, including, but not limited to, stores that engage in the retail sale of food items. This definition shall apply only to this section.

(b) Sale or Offer for Sale of Flavored Tobacco Products Prohibited.

(1) The sale or offer for sale within the city of Burlingame, including a sale transacted remotely with delivery to an address within Burlingame, by any person or tobacco retailer of any flavored tobacco product is prohibited and no person or tobacco retailer shall sell, or offer for sale, any flavored tobacco product.

(A) The sale of Hookah/Shisha tobacco for immediate on-site consumption by a tobacco retailer holding a valid and unexpired city of Burlingame Tobacco Retailer Permit that specifically permits on-site hookah sales is exempted from this prohibition, so long as the tobacco retailer is in compliance with the permit and Chapter 8.19 of this title, as may be amended.

(2) There shall be a rebuttable presumption that a tobacco product is a flavored tobacco product if a manufacturer or any of the manufacturer's agents or employees, in the course of their agency or employment, has made a statement or claim directed to consumers or to the public that the tobacco product has or produces a characterizing flavor including, but not limited to, text, color, and/or images on the product's labeling or packaging that are used to explicitly or implicitly communicate that the tobacco product has a characterizing flavor.

(c) Enforcement — Violation a Public Nuisance. The provisions of this section shall be enforced through the mechanisms provided in Title 1 of this code, and violations may be subject to administrative, civil, or criminal remedies as determined within the discretion of the city attorney as prosecutor. Violation of the provisions of this section is deemed to constitute a public nuisance and may be abated as such. Further, violation of this section shall constitute grounds for revocation of a violator's business license under Section 6.04.280. These remedies are in addition to, and not in place of, all enforcement options available to the city through Chapter 8.19 of this title as may be amended.

(d) No Conflict with State or Federal Law. Nothing in this chapter shall be interpreted or applied so as to create any requirement, power, or duty that is preempted by federal or state law. (Ord. 1970 § 1, (2019); Ord. 2026, 3/18/2024)