Calexico Municipal Code Ch. 8.59 Smoking in and Around Multi-Unit Public Residences Prohibited

The purpose of this chapter is to protect the health and welfare by regulating smoking in and around public housing within the city, which are exclusively multi-unit residences, and to recognize the need to breathe clean air. Tobacco use causes death and disease and continues to be an urgent public health threat. Nonsmokers who live in multi-unit dwellings can be exposed to neighbors' secondhand smoke. Harmful residues from tobacco smoke can be absorbed by and cling to virtually all indoor surfaces long after smoking has stopped and then be emitted back into the air, making this "thirdhand smoke" a potential health hazard. Smoking is the number one cause of fire deaths, is a leading cause of fire-related injury, and contributes to fire-related health inequities. The Surgeon General has concluded that eliminating smoking in indoor spaces is the only way to fully protect nonsmokers from secondhand smoke exposure and that separating smokers from nonsmokers, cleaning the air, and ventilating buildings cannot completely prevent secondhand smoke exposure. Smokefree multi-unit housing policies are the most effective method to fully reduce secondhand smoke exposure in multi-unit housing. Secondhand smoke in multi-unit housing is a significant threat to the health and safety of children.

(Ord. No. 1164, § II, 9-16-15)

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

A. "Adjacent unenclosed property" means any unenclosed area of property, publicly or privately owned, that abuts a public multi-unit residence, but does not include property containing detached single-family homes.

B. "City" means the city of Calexico.

C. "Common area" means every enclosed area and every unenclosed area of a public multi-unit residence that residents of more than one unit are entitled to enter or use, including, without limitation, halls, pathways, lobbies, courtyards, elevators, stairs, community rooms, playgrounds, gym facilities, swimming pools, parking garages, parking lots, grassy or landscaped areas, restrooms, laundry rooms, cooking areas, and eating areas.

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. "Enclosed area" means 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 physical 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.

F. "Landlord" means any person or agent of a person who owns, manages, or is otherwise legally responsible for a unit in a public multi-unit residence that is leased to a residential tenant, except that "landlord" does not include a tenant who sublets a unit (e.g., a sublessor).

G. "Public multi-unit residence" means property commonly known as public housing that contains two or more units, including, but not limited to, apartment buildings, condominium complexes, senior and assisted living facilities, and long-term health care facilities that are owned and/or operated by the housing authority of the city or an entity of which the housing authority is a part. Public multi-unit residences do not include the following:

1. A single-family home, except if used as a child care or health care facility subject to licensing requirements; and

2. A single-family home with a detached or attached in-law or second unit permitted pursuant to California Government Code sections 65852.1, 65852.150, 65852.2 or an ordinance of the city adopted pursuant to those sections, except if the single-family home or in-law/second unit is used as a child care or health care facility subject to licensing requirements.

H. "New unit" means a unit that is issued a certificate of occupancy after October 16, 2015 and also means a unit that is let for residential use for the first time after October 16, 2015.

I. "Nonsmoking area" means any enclosed area or unenclosed area in which smoking is prohibited by:

1. This chapter or other law;

2. Binding agreement relating to the ownership, occupancy, or use of real property; or

3. Designation of a person with legal control over the area.

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

K. "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, except when the combusting or vaporizing material contains no tobacco or nicotine and the purpose of inhalation is solely olfactory, such as, for example, smoke from incense. The term "smoke" includes, but is not limited to, tobacco smoke, electronic smoking device vapors, marijuana smoke, and crack cocaine smoke.

L. "Smoking" means inhaling, exhaling, burning, or carrying any lighted, heated, or ignited cigar, cigarette, cigarillo, pipe, hookah, electronic smoking device, or any plant product intended for human inhalation.

M. "Unenclosed area" means any area that is not an enclosed area.

N. "Unit" means 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. "Unit" includes, without limitation, an apartment; a condominium; a townhouse; a room in a senior facility; a room in a long-term health care facility, assisted living facility, or hospital; a room in a hotel or motel; a dormitory room; a room in a single room occupancy ("SRO") facility; a room in a homeless shelter; a mobile home; a camper vehicle or tent; a single-family home; and an in-law or second unit. Unit includes, without limitation, a new unit.

(Ord. No. 1164, § II, 9-16-15)

A. Smoking is prohibited in all new units of a public multi-unit residence, including any associated exclusive-use enclosed areas or unenclosed areas, such as, for example, a private balcony, porch, deck, or patio. Smoking in a new unit of a public multi-unit residence, on or after October 16, 2015, is a violation of this chapter.

B. Smoking is prohibited in all units of a public multi-unit residence that are not new units, including any associated exclusive-use enclosed areas or unenclosed areas, such as, for example, a private balcony, porch, deck, or patio. Smoking in a unit of a public multi-unit residence that is not a new unit, on or after October 16, 2016, is a violation of this chapter.

(Ord. No. 1164, § II, 9-16-15)

A. Smoking in a common area, on or after, October 16, 2015, other than in a designated smoking area established pursuant to subsection B, is a violation of this chapter.

B. 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 designated smoking area provided the designated smoking area complies with subsection C at all times.

C. A designated smoking area:

1. Must be an unenclosed area;

2. Must be at least twenty-five 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;

3. Must be located at least twenty-five feet from any nonsmoking area. The location of nonsmoking areas may change due to the new enactment of a law, execution of an agreement, or other event that affects the area's smoking designation. If an event occurs that changes a nonsmoking area, a person with legal control over a designated smoking area within less than twenty-five feet of that nonsmoking area must modify, relocate, or eliminate that designated smoking area so as to maintain compliance with the requirements of this paragraph. In the case of a nonsmoking area on a neighboring property 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 with legal control to designate a smoking area within twenty-five feet of the nonsmoking area unless that person has actual knowledge of, or a reasonable person would know of, the private agreement or designation. It shall not be a violation of this chapter for a person to smoke within a nonsmoking area if the area is erroneously designated as a smoking area unless a reasonable person would know of the error;

4. Must be no more than ten percent of the total unenclosed area of the public multi-unit residence for which it is designated;

5. Must have a clearly marked perimeter;

6. Must be identified by conspicuous signs; and

7. Must not overlap any enclosed or unenclosed area where smoking is prohibited by this chapter or other law.

D. No person with legal control over a common 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.

(Ord. No. 1164, § II, 9-16-15)

Smoking is prohibited in adjacent unenclosed property within twenty-five feet in any direction of any doorway, window, opening, or other vent into an enclosed area of a public multi-unit residence.

(Ord. No. 1164, § II, 9-16-15)

A. Every lease or other rental agreement for the occupancy of a unit in a public multi-unit residence, entered into, renewed, or continued month-to-month after October 16, 2015, shall include the provisions set forth in subsection B 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 public multi-unit residence, entered into, renewed, or continued month-to-month after October 16, 2015, shall be amended to include the following provisions:

1. A clause providing that as of October 16, 2015, it is a material breach of the agreement to allow or engage in smoking in the unit, including exclusive-use areas such as balconies, porches, or patios. 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 to engage in smoking in the unit or exclusive use areas such as balconies, porches, or patios as of October 16, 2015."

2. A clause providing that it is a material breach of the agreement for tenant or any other person subject to the control of the tenant to engage in smoking in any common area of the public multi-unit residence other than a designated 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 designated smoking area, if one exists."

3. A clause providing that it is a material breach of the agreement for tenant or any other person subject to the control 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 public multi-unit residence as to the smoking provisions of the lease or other rental agreement. Such a clause might state:

"Other occupants of the property are express third-party beneficiaries of those provisions in this agreement regarding smoking. As such, other occupants of the property may 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 subsections A and B, the clauses required by those subsections shall be implied and incorporated by law into every agreement to which subsections A and B apply and shall become effective as of the earliest possible date on which the landlord could have made the insertions pursuant to subsections A and B.

D. A tenant who breaches a smoking provision of a lease or other rental agreement for the occupancy of a unit in a public multi-unit residence, 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 public multi-unit residence who is exposed to smoke or who suffers 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 public multi-unit residence if the landlord has fully complied with this section.

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. No. 1164, § II, 9-16-15)

A. Every landlord shall deliver the following, on or before April 16, 2016, to each unit of a public multi-unit residence:

1. A written notice clearly stating:

a. All units are designated nonsmoking units, and smoking will be illegal in a unit, including any associated exclusive-use enclosed area or unenclosed area, such as, for example, a private balcony, porch, deck, or patio, as of October 16, 2016; and

b. Smoking in all common areas, except for specifically designated smoking areas, will be a violation of this chapter as of October 16, 2015.

2. A copy of this chapter.

B. As of October 16, 2015, every landlord shall provide prospective tenants with written notice clearly stating that:

1. Smoking is prohibited in units, including any associated exclusive-use enclosed area or unenclosed area, such as, for example, a private balcony, porch, deck, or patio, as of October 16, 2015; and

2. Smoking is prohibited in all common areas, except for specifically designated smoking areas, as of October 16, 2015.

C. As of October 16, 2015, every seller of a unit in a public multi-unit residence shall provide prospective buyers with written notice clearly stating that:

1. Smoking is prohibited in units, including any associated exclusive-use enclosed area or unenclosed area, such as, for example, a private balcony, porch, deck, or patio, as of October 16, 2015; and

2. Smoking is prohibited in all common areas, except for specifically designated smoking areas, as of October 16, 2015.

D. Clear and unambiguous "no smoking" signs shall be posted in sufficient numbers and locations in common areas where smoking is prohibited by this chapter or other law. In addition, signs shall be posted in sufficient numbers and locations in the public multi-unit residence to indicate that smoking is prohibited in all units. 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. "No smoking" signs are not required inside or on doorways of units, except for hotels or motels as defined in California Civil Code section 1940, subdivision (b)(2).

E. No person with legal control over any nonsmoking area shall permit smoking in the nonsmoking area, except as otherwise provided in Section 8.59.040.

(Ord. No. 1164, § II, 9-16-15)

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

B. For all purposes within the jurisdiction of the city, nonconsensual exposure to smoke occurring on or drifting into property is a nuisance, and the uninvited presence of smoke on property is a nuisance and a trespass.

(Ord. No. 1164, § II, 9-16-15)

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

B. Every instance of smoking in violation of this chapter is an infraction subject to a one hundred dollar fine. Other violations of this chapter may, in the discretion of the city prosecutor be prosecuted as infractions or misdemeanors when 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 and not exceeding one thousand dollars per violation.

D. 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 subsection shall constitute a misdemeanor.

E. Causing, permitting, aiding, or abetting 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 public nuisance.

G. 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 or criminal code enforcement proceedings, and suits for injunctive relief.

H. Any person, including a legal entity or organization acting for the interests of itself, its members, or the general public, may bring a civil action to enforce this chapter by way of a conditional judgment or an injunction to prevent future such violations and may sue to recover such actual or statutory damages as he or she may prove.

I. Except as otherwise provided, 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 public enforcement of this chapter against private parties.

(Ord. No. 1164, § II, 9-16-15)

If any sections of this chapter conflict with Chapter 8.58, this chapter shall govern.

(Ord. No. 1164, § II, 9-16-15)