Clayton Municipal Code Ch. 8.14 Regulation of Smoking

Footnotes:

--- (3) ---

Editor's note— Ord. 481, § 2(Exh. A), adopted May, 1, 2018, amended Ch. 8.14, §§ 8.14.010—8.14.150, in its entirety, in effect repealing and reenacting said chapter, §§ 8.14.010—8.14.160, as set out herein. Former Ch. 8.14 pertained to similar subject matter and derived from Ord. 295, § 1, adopted in 1992 and Ord. 307, adopted in 1993.

Because smoking is a positive danger to public health, and a cause of material discomfort and a public health hazard even to those exposed to secondhand smoke or vapor, the compelling purpose and intent of this chapter include, but are not limited, to:

A. Promote the public health, safety and welfare by prohibiting smoking in certain areas which are used by or open to the public;

B. Assure a cleaner and more hygienic environment for the City, its residents, visitors, and natural resources; and

C. Strike a reasonable balance between the needs of persons, who smoke and the needs of nonsmokers, including children and youth, to breathe smoke-free and drug-free air, recognizing the threat to public health and the environment caused by smoking and unwelcome secondhand smoke and vapor.

(Ord. 481, § 2(Exh. A), 2018)

The following words and phrases, whenever used in this chapter, shall be construed as hereafter set out, unless it is apparent that they have a different meaning:

A. "Bar" means any business licensed or required to be licensed by the Department of Alcoholic Beverage Control for alcoholic beverage on-sale privileged as a "public premise" as defined by California Business and Professions Code Section 23039.

B. "Business" means any sole proprietorship, partnership, joint venture, corporation, association, or other entity formed for profit-making purposes. For purposes of this chapter, the term "business" also includes a nonprofit entity.

C. "Cannabis" means all parts of the plant Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, whether growing or not; the seeds thereof; the resin, whether crude or purified, extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin. For purposes of this chapter, the term "cannabis" shall include "cannabis," "cannabis concentrate" and "cannabis products" as those terms are defined by California Business and Professions Code Section 26001, and specifically includes hashish, dabs, or similarly mildly euphorogenic and hallucinogenic drugs are prepared from the plant genus Cannabis, whether for medical or adult use.

D. "Common Area" means every enclosed area or unenclosed area of a multi-unit residence that residents of more than one unit of that multi-unit residence are entitled to enter or use, including, for example, halls, paths, lobbies, courtyards, elevators, stairs, community rooms, playgrounds, gym facilities, swimming pools, parking garages, parking lots, shared restrooms, shared laundry rooms, shared cooking areas, and shared eating areas.

E. "Dining Area" means any area, including streets and sidewalks, that is available to or customarily used by the general public or an employee, and that is designed, established, or regularly used, for consuming food and drink. For purposes of this chapter, "dining area" does not include the unenclosed or outdoor areas of a private restaurant that is not open to the general public during all or any hours of operation and is only open to its members. The term "dining are" shall not include a bar.

F. "Distribute" means to give, sell, deliver, dispense, issue, or cause or hire any person to give, sell, deliver, dispense, issue or offer to give, sell, deliver, dispense or issue.

G. "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, and electronic cigarillo, and electronic pipe, an electronic hookah, vapor or vape pen or any other product name or descriptor.

H. "Employee" means any person who is employed or retained as an independent contractor by an employer in consideration for direct or indirect monetary wages or profit, or any person who volunteers his or her service for an employer.

I. "Employer" means any business or government entity that retains the service of one or more employees.

J. "Enclosed" 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 vertical constraint to airflow including, but not limited to, vegetation of any height, whether or not those boundaries include vents or other openings; or

2. Four (4) walls or other vertical constraints to airflow including, but not limited to, vegetation that exceed six (6) feet in height, whether or not those boundaries include vents or other openings.

K. "Multi-unit Residence" means improved property contain two or more dwelling units, including, but not limited to, attached single-family homes, townhomes, row houses, duplexes, apartment buildings, condominium complexes, senior and assisted living facilities, and long-term health care facilities. "Multi-unit residences" do not include the following:

1. A detached single-family home; or

2. A detached single-family home with a detached or attached in-law, second unit, or accessory dwelling 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; or

3. A mobile home in a mobile home park.

L. "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 government agency is not a nonprofit entity within the meaning of this chapter.

M. "Open Space" means land left basically in its natural, undeveloped state to promote scenic and aesthetic beauty and used for the preservation of natural resources, managed production of resources and outdoor recreation.

N. "Park" means all public open spaces, recreation areas and trails owned and maintained by the City of Clayton, whose primary purpose is recreation, either passive or active.

O. "Person" means any natural person, business, cooperative association, homeowners association, nonprofit entity, personal representative, receiver, trustee, assignee, or any other local entity including a government agency.

P. "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 the operations, regardless of the hours of operation. "Place of employment" does not include tobacco shops or private smokers' lounges that meet the requirements of subdivision (e)(2) of Labor Code Section 6404.5 or its successor and this chapter. A private residence is not a place of employment unless it is used as a childcare or health facility.

Q. "Public Event" means any event which is open to and may be attended by the general public, including but not limited to such events as farmers' markets, parades, craft fairs, festivals, concerts, performance or other exhibitions, regardless of any fee or age requirement.

R. "Public Place" means any area, whether publicly or privately owned, to which the public has access by right or by invitation, expressed or implied, whether by payment of money or not and regardless of any age requirement. "Public place" does not include tobacco shops or private smokers' lounges that meet the requirements of subdivision (e)(2) of Labor Code Section 6404.5 or its successor and this chapter.

S. "Recreational Area" means any are that is open to the general public for recreational purposes, regardless of any fee or age requirement. The term "Recreational Area" includes, but not limited to, open spaces, parks, picnic areas, playgrounds, sports fields, golf courses, walking paths, gardens, hiking trails, bike paths, riding trails, swimming pools, roller- and ice-skating rinks, and skateboard parks, but does not include the unenclosed outdoor areas of private golf courses.

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

U. "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 or cannabis or other controlled substances 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, and cannabis smoke or vapors.

V. "Smoking" means engaging in an act that generates smoke, such as, for example, inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, pipe, tobacco product, cannabis, or other plant product intended for inhalation, whether natural or synthetic, in any manner or in any form. "Smoking" includes the use of an electronic smoking device that creates an aerosol or vapor, in any form, or the use of any oral smoking or vaping device for the purpose of circumventing the prohibition of smoking. The term "smoking" shall include, but not limited to "smoking" as the term defined by California Business and Professions Code, Section 22950.5.

W. "Tobacco Product" means any of the following:

1. A product containing, made, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to, cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, or snuff.

2. An electronic smoking device that delivers nicotine or other vaporized liquids to the person inhaling from the device, including, but not limited to, an electronic cigarette, cigar, pipe, vapor pen or hookah.

3. Any component, part, or accessory of a tobacco product, whether or not sold separately.

"Tobacco product" does not include a product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where the product is marketed and sold solely for such an approved purpose. The term "tobacco product" shall include, but not be limited to "tobacco product" as the term is defined by California Business and Professions Code, Section 22950.5.

X. "Trail" means a marked or established path or route, paved or unpaved, used for the recreational activities of walking, hiking, bicycling, and/or horseback riding.

Y. "Unenclosed" means any area that is not enclosed.

Z. "Unit" means a personal dwelling space, even where lacking cooking facilities or private plumbing facilities, and includes any associated exclusive-use enclosed area to unenclosed area, such as, for example, a private balcony, porch, deck, or patio. "Unit" includes but is not limited to an attached single-family home; row house; an apartment; a duplex; a condominium; a townhouse; a room in a long-term health care facility, assisted living facility, or hospital; a room in single room occupancy ("SRO) facility; a room in a homeless shelter; a single-family home; and an in-law or accessory dwelling unit.

AA. "Vending machine" means any electronic or mechanical device or appliance the operation of which depends upon the insertion or payment of money, whether in coin or paper bill, credit card, cell phone app or other item representative of value, which dispenses or releases a tobacco product and/or tobacco accessories.

(Ord. 481, § 2(Exh. A), 2018)

A. Smoking is prohibited in all buildings, vehicles, or other areas occupied by City employees, owned or leased by the City, or otherwise operated by the City.

B. Smoking is prohibited in all unenclosed areas owned and leased by the City, including City parks, trails and recreational areas, parking lots, corporation yards, and the grounds of any building owned or leased or operated by the City with the exception of public sidewalks.

(Ord. 481, § 2(Exh. A), 2018)

Smoking is prohibited in the following places within the City of Clayton:

A. Enclosed places of employment in accordance with California Labor Code, Section 6404.5, including those enclosed places of employment exempted by the California smoke-free workplace law (Labor Code Section 6404.5(e), as that section may be amended from time to time) except as provided below:

1. Smoking inside a tobacco shop is not prohibited by this subsection if (a) the tobacco shop does not sell edible products, including for example, food, water, or drinks, or allow such products to be consumed on the premises; (b) the tobacco shop prohibits those under the age of twenty-one (21) from entering the store at all times; and (c) the premises of the tobacco shop is an independent freestanding building unattached to any other building, establishment, or use. For the purposes of this exception, "tobacco shop" means any tobacco retailer that derives more than seventy-five percent (75%) of gross sales receipts from the sale or exchange of tobacco products and tobacco paraphernalia.

B. Enclosed public places.

C. Service areas (enclosed and unenclosed).

D. The following unenclosed areas:

1. Dining areas.

2. Recreational areas.

3. Public events.

E. All enclosed and unenclosed multi-unit residence common areas, except that a landlord or other person legally responsible for the maintenance of the common area may designate a portion of an unenclosed common area as a smoking area. A designated smoking area of an unenclosed common area of a multi-unit residence must not overlap with any area where smoking is otherwise prohibited by local, state, or federal law; must be located at least twenty-five (25) feet in all directions from non-smoking areas; must not include areas used primarily by children; must be no more than twenty-five percent (25%) of the total unenclosed common area; must have a clearly marked perimeter; and must be identified by conspicuous signs.

F. Dwelling units in any new multi-unit residence, including enclosed and unenclosed balconies, porches, decks, patios, garages, and carport areas, that receives a building permit on or after the effective date of this chapter.

G. Dwelling units in any existing multi-unit residence, including enclosed and unenclosed balconies, porches, decks, patios, garages, and carport areas, on or after May 1, 2019.

Nothing in this chapter prohibits any person with legal control over any property from prohibiting smoking on any part of such property, even if smoking is not otherwise prohibited in that area.

(Ord. 481, § 2(Exh. A), 2018)

Nothing in this chapter prohibits any person from smoking:

A. Inside private vehicles.

B. Inside private, detached single-family residences except private residences used as child care facilities or health care facilities.

C. Inside an accessory dwelling unit that is attached to or detached from a detached single-family residence.

D. As provided under Section 8.14.050.G.

(Ord. 481, § 2(Exh. A), 2018)

Smoking cannabis is prohibited in all places where smoking tobacco products is prohibited. In addition, smoking cannabis is prohibited in the following places:

A. In or upon all property owned, leased, or operated by the City, expressly including any public park, street, sidewalk, trail, bike path, alley, highway, parking lot or parking structure, or in any other public place as defined in this chapter and by state law. (See, Cal. Health and Safety Code § 11362.3(a)(1).)

B. Within one thousand (1,000) feet of a school, day care center, or youth center while children are present at such school, day care center, or youth center, except in or upon the grounds of a private residence if such smoking is not detectable by others on the grounds of such a school, day care center, or youth center while children are present.

C. In or upon the grounds of school, day care center, or youth center, regardless of whether children are present. (See Cal. Health and Safety Code § 104559; Labor Code § 6404.5.)

D. While driving, operating, or riding in the passenger seat or compartment of a motor vehicle, boat, vessel, aircraft, or other vehicle used for transportation. (See, Cal. Health and Safety Code § 11362.3; Vehicle Code § 23152.)

E. Ingesting cannabis is prohibited in any public place, as defined herein.

(Ord. 481, § 2(Exh. A), 2018)

A. Lease Terms. The following lease terms are required immediately following the effective date for all new units and are required for existing units by May 1, 2019 in multi-unit residences:

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

a. A clause providing that as 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 or present by invitation or permission of the tenant to engage in smoking in the unit or exclusive use areas such as balconies, porches, or patios."

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

c. A clause providing that it is a material breach of the agreement for any 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 any 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."

d. A clause expressly conveying third-party beneficiary status to all occupants of the 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."

B. Whether or not a landlord complies with subsection A., the clauses required by that subsection shall be implied and incorporated by law into every agreement to which subsection A. applies and shall become effective as of the earliest possible date on which the landlord could have made the insertions pursuant to subsection A.

C. A tenant who breaches a smoking provision of a lease or other rental agreement for the occupancy of a unit in a 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: (i) the landlord; and (ii) any occupant of the multi-unit residence who is exposed to smoke or who suffers damages as a result of the breach.

D. 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 multi-unit residence if the landlord has fully complied with this section.

(Ord. 481, § 2(Exh. A), 2018)

A. "No Smoking" signs, with the 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, sufficiently 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. For unclosed areas, the signs must be posted at each point of ingress to the area, and in at least one other conspicuous point within the area. For multi-unit residences, the signage shall indicate smoking is prohibited within units in the multi-unit residences, and within the common area, except as the designated under Section 8.14.050.E.

B. With respect to each multi-unit residence, the person legally responsible for maintenance of the common area shall within thirty (30) days of the effective date of this chapter, notify the occupants and owners of units in writing by mail or delivery to the unit of the smoking prohibitions and penalties imposed by this chapter.

C. Notwithstanding this section, the presence or absence of signs or failure to receive notice shall not be a defense to a charge of smoking in violation of any other provision of this chapter.

(Ord. 481, § 2(Exh. A), 2018)

Vending machines for the distribution of tobacco products and/or cannabis products shall be prohibited within the City of Clayton.

(Ord. 481, § 2(Exh. A), 2018)

No person, including any agent or employee of any person, in the business of selling or otherwise distributing tobacco products or cannabis/cannabis products for commercial purposes shall in the course of such business distribute, or direct, authorize, or permit any agent or employee to distribute: (1) any tobacco product, including any smokeless tobacco product, or (2) coupons, certificates, or other written material which may be redeemed for tobacco products without charge, to any person in any public place.

(Ord. 481, § 2(Exh. A), 2018)

No person shall sell or offer for sale tobacco products or smokeless tobacco not in the original packaging provided by the manufacturer.

(Ord. 481, § 2(Exh. A), 2018)

A. Administration of this chapter shall be by the City Manager or his/her designees.

B. Any citizen who desires to register a complaint hereunder may initiate enforcement consideration with the City Manager or his/her designees.

C. Any person acting for the interests of itself, its members, or the general public (hereinafter "private enforcer") may bring a civil action in any court or competent jurisdiction, including small claims court, to enforce this chapter against any person who has violated this chapter two (2) or more times. Upon proof of the violations, a court shall grant all appropriate relief, including: (1) awarding damages; and (2) issuing an injunction or a conditional judgment. If there is insufficient or no proof of actual damages for a specific violation, the court shall award one hundred fifty dollars ($150.00) for each violation as statutory damages. A private enforcer shall provide a copy of his, her, or its action to the City Manager within seven (7) days of filing it.

D. The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity, including without limitation, administrative fines.

(Ord. 481, § 2(Exh. A), 2018)

A. It is unlawful for any person who owns, manages, operates or otherwise controls the use of any premises subject to the restrictions of this chapter to fail to properly post signs required hereunder.

B. It shall be unlawful for any person to smoke in any area restricted by the provisions of this chapter. Each instance of smoking in violation of this chapter shall constitute a separate violation.

C. No person shall knowingly permit smoking in an area which is under the legal or de facto control of that person and in which smoking is prohibited by this chapter.

D. Unless state law requires a different remedy, any person who violates subsection A. or B. or C. herein, or any other provision of this chapter, shall be guilty of a misdemeanor unless it is charged as in infraction, in the discretion of the City Manager in accordance with Chapter 1.20 of the Clayton Municipal Code. As required by state law, violation of Section 8.14.070 shall be charged as an infraction and subject to the penalties set forth in state law (See, Cal. Health and Safety Code § 11362.4, as may be amended).

(Ord. 481, § 2(Exh. A), 2018)

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

(Ord. 481, § 2(Exh. A), 2018)

This chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws.

(Ord. 481, § 2(Exh. A), 2018)