Concord Municipal Code Art. I Interpretation, Construction and Severability, and Definitions

(a) Interpretation.

(1) The provisions of this chapter are restrictive only and establish no new rights for a person who engages in smoking. Notwithstanding (a) any provision of this chapter or of this Code, (b) any failure by any person to restrict smoking under this chapter, or (c) 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.

(2) Notwithstanding any provision to the contrary, nothing in this chapter shall be interpreted to restrict or otherwise regulate the use of a drug, device, or combination product authorized for sale by the United States Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act.

(3) Nothing in this chapter is intended to preclude a person or entity that owns or controls a multiunit residence from prohibiting smoking under its control.

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

(b) Construction and severability. It is the intent of the City Council to supplement applicable state and federal law and not to duplicate or contradict such law and this chapter shall be construed consistently with that intention. If any section, subsection, subdivision, paragraph, sentence, clause, or phrase of this chapter, or its application to any person or circumstance, is for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases of this chapter, or its application to any other person or circumstance. The City Council hereby declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause, or phrase hereof, irrespective of the fact that any one or more other sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases hereof be declared invalid or unenforceable.

(Code 1965, § 4940; Code 2002, § 38-31. Ord. No. 85-52; Ord. No. 93-4; Ord. No. 19-7, § 6 (Exh. A))

The following words and phrases, whenever used in this article, shall be construed as hereinafter set forth, unless it is apparent from the context that they have a different meaning:

Adjacent unenclosed property. Any unenclosed area of property, publicly or privately owned, that abuts a multiunit residence, but does not include property containing single-family detached dwelling units.

Bar. An area which is devoted to the serving of alcoholic beverages and in which the service of food is only incidental to the consumption of such beverages (Department of Alcoholic Beverage Control Type 61, 42, or 48 licenses). That area of a restaurant which is devoted to the serving of alcoholic beverages and in which the service of food may be only incidental to the consumption of such beverages shall also be considered a bar. An area in which food service is only incidental shall: (1) not exceed 40 percent of a restaurant’s total seating capacity; or (2) shall encompass only those areas in which gross receipts of the restaurant from food do not exceed 40 percent. The operator of each restaurant shall designate by which method it determines its bar area.

Cannabis. Defined as set forth in California Business and Professions Code Section 26001, as that section may be amended from time to time.

Common area. Every enclosed area and every unenclosed area of a multiunit residence that residents of more than one unit are entitled to enter or use, including, but not limited to, 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.

Distribute. 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.

Effective date. February 6, 2020.

Electronic smoking device. 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, a vaporizer or vape pen, or any other product name or descriptor.

Employee. Any person who is employed by any employer in consideration for direct or indirect monetary wages or profit, or any person who volunteers his or her service for an employer.

Employer. Any person, partnership, or corporation, including a municipal corporation or public entity, who employs the services of one or more persons.

Enclosed or enclosed area. 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 constraints to airflow, including, but not limited to, vegetation of any height, whether or not those boundaries include vents or other openings; or (2) four walls or other vertical constraints to airflow, regardless of composition, including, but not limited to, vegetation that exceeds six feet in height, whether or not those boundaries include vents or other openings.

Existing unit. Any unit which is not a new unit.

General public. Shoppers, customers, patrons, patients, students, clients, and other invitees of a commercial enterprise or nonprofit entity.

Landlord. Any person or agent of a person who owns, manages, or is otherwise legally responsible for a unit in a multiunit residence that is leased to a residential tenant. For purposes of this chapter, a tenant who sublets their unit (e.g., a sublessor) is not a landlord.

Multiunit residence. Property containing two or more residences, or any residences sharing common walls or otherwise attached. Multiunit residences do not include the following:

(1) A hotel or motel that meets the requirements of California Civil Code Section 1904(b)(2);

(2) A recreational vehicle, mobile home, or manufactured home not located in a mobile home park;

(3) A single-family detached dwelling unit, except if used as a family day care home or health facility, subject to licensing requirements;

(4) A single-family detached dwelling unit with a detached or attached 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, except if the single-family detached dwelling unit or accessory dwelling unit is used as a family day care home or a health care facility, subject to licensing requirements.

(5) Long-term health care facilities, as defined in Section 1418 of the Health and Safety Code.

New unit. A unit that has been issued a certificate of occupancy on or after the effective date and any unit that is let for residential use for the first time after the effective date.

Nonsmoking area. 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) A person with legal control over the area.

Park. Public park or recreation area as defined in Section 18.20.030.

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

Public place. Any area, whether publicly or privately owned, to which the public has access by right or invitation, express or implied, whether by payment of money or not, and regardless of any age requirement.

Place of employment. Any area under the control of a public or private employer which employees normally frequent during the course of employment, including but not limited to work areas, employee lounges, conference rooms, and employee cafeterias. A single-family detached dwelling unit is not a place of employment, unless it is used as a child care or health care facility.

Residence. A personal dwelling space, even one lacking cooking facilities or private plumbing facilities, including any associated exclusive-use enclosed area or unenclosed area, such as a private balcony, porch, deck, or patio. “Residence” includes, without limitation, a dwelling, dwelling unit, or housing unit, a personal dwelling space in a residential facility (including, but not limited to, group housing, residential care facilities, residential facilities for seniors, assisted living, supportive housing, transitional housing), emergency, homeless shelter, and a recreational vehicle, mobile home, or manufactured home.

Smoke. 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. The term “smoke” includes, but is not limited to, tobacco smoke, vapors from an electronic smoking device, and cannabis smoke.

Smoking. Inhaling, exhaling, burning, lighting, operating, holding, or carrying any lighted, heated, or ignited cigar, cigarette, cigarillo, pipe, hookah, cannabis, electronic smoking device, or any other device that delivers nicotine, cannabis, or other substances, whether natural or synthetic, to a person.

Smoking product. Any of the following are considered to be a smoking product:

(1) Any product that is intended or used 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, snuff, cannabis, or other synthetic or organic materials.

(2) Any electronic smoking device.

(3) Any component, part, or accessory of a smoking product, whether or not sold separately.

“Smoking 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.

Sports and entertainment, assembly. A facility as defined in Section 18.20.020.

Sports and recreation facility. A public or private facility as defined in Section 18.20.020.

Unenclosed or unenclosed area. Any area that is not enclosed or is not an enclosed area.

Unit. Any residence in a multiunit residence. Unit includes, without limitation, an existing unit and a new unit.

Vending machine. Any electronic or mechanical device or appliance the operation of which depends upon the insertion of money, whether in coin, paper bill, or other thing representative of value, which dispenses or releases a smoking product and/or smoking accessories.

(Code 1965, § 4941; Code 2002, § 38-32. Ord. No. 85-52; Ord. No. 87-3; Ord. No. 93-4; Ord. No. 11-5; Ord. No. 19-7, § 6 (Exh. A))

Cross references: Definitions generally, § 1.05.100.