Concord Municipal Code Art. III Prohibiting Smoking in and Around Multiunit Residences

Smoking in a common area other than in a designated smoking area established pursuant to this chapter is a violation of this chapter.

(a) A person with legal control over a common area, such as 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 (b) of this section at all times.

(b) A designated smoking area:

(1) Must be an unenclosed area;

(2) Must be at least 25 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 25 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 nonsmoking designation. If an event occurs that changes a nonsmoking area, a person with legal control over a designated smoking area located less than 25 feet from that nonsmoking area must modify, relocate, or eliminate that designated smoking area so as to maintain compliance with the requirements of this subsection (b). In the case of a nonsmoking area on a neighboring property established 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 over the property to designate a smoking area within 25 feet of the nonsmoking area unless that person has actual knowledge of, or a reasonable person would know of, the private agreement or designation;

(4) Must be no more than 10 percent of the total unenclosed area of the multiunit 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 with any enclosed or unenclosed area where smoking is prohibited by this chapter or other law.

(c) 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 ashtrays, ashcans, or other receptacles designed for or primarily used for disposal of smoking waste within any area that is not a designated smoking area.

(Ord. No. 19-7, § 6 (Exh. A))

(a) Smoking is prohibited in adjacent unenclosed property located within 25 feet in any direction of any doorway, window, opening, or other vent into an enclosed area of a unit.

(b) Subsection (a) of this section does not apply to a person who is smoking in the restricted buffer zone area while actively passing on the way to another destination.

(Ord. No. 19-7, § 6 (Exh. A))

(a) Existing units. Every lease or other rental agreement for the occupancy of any existing unit entered into, renewed, or continued month to month on or after January 1, 2021, shall include the provisions set forth in subsection (c) of this section on the earliest possible date allowable by law.

(b) New units. Every lease or other rental agreement for the occupancy of any new unit entered into, renewed, or continued month to month on or after the effective date shall include the provisions set forth in subsection (c) of this section.

(c) Lease provisions.

(1) A clause providing that it is a material breach of the agreement to knowingly or intentionally allow, or engage in, smoking in the unit, including exclusive-use areas such as balconies, porches, or patios, substantially similar to the following:

It is a material breach of this agreement for tenant to engage in smoking in the unit or exclusive use areas such as balconies, porches, or patios. Moreover, it is a material breach of this agreement for tenant to knowingly or intentionally allow 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.

(2) A clause providing that it is a material breach of the agreement for tenant to knowingly and intentionally allow, or engage in, smoking in any common area of the multiunit residence other than a designated smoking area, substantially similar to the following:

It is a material breach of this agreement for tenant to engage in smoking in any common area of the property, except in an outdoor designated smoking area, if one exists. In addition, it is a material breach of this agreement for tenant to knowingly or intentionally allow any other person subject to the control 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 to violate any law regulating smoking while anywhere on the property, or to knowingly and intentionally allow any other person subject to the control of the tenant to engage in such behavior, substantially similar to the following:

It is a material breach of this agreement for tenant to violate any law regulating smoking while anywhere on the property. Moreover, it is a material breach of this agreement for tenant to knowingly or intentionally allow any other person subject to the control 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 multiunit residence as to the smoking provisions of the lease or other rental agreement, substantially similar to the following:

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.

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

(e) A tenant who breaches, or knowingly and intentionally allows any other person subject to the control of the tenant to breach, a smoking provision of a lease or other rental agreement for the occupancy of a unit shall be liable for the breach to (i) the landlord; and (ii) any occupant of the unit who is exposed to smoke or who suffers damages as a result of the breach. A landlord shall not be liable to any person for a tenant’s breach of smoking regulations 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. 19-7, § 6 (Exh. A))

(a) Every landlord shall deliver the following notices to (1) each existing unit on or before July 1, 2020, and (2) any new unit as of the effective date:

(1) A written notice clearly stating:

a. All units are designated nonsmoking units and smoking is illegal in a unit, including any associated exclusive-use enclosed area or unenclosed area, such as a private balcony, porch, deck, or patio, as of January 1, 2021, for any existing unit and as of the effective date for any new unit; and

b. Smoking in all common areas is a violation of this chapter.

(2) A copy of this chapter or a web address to this chapter on the city’s internet website.

(b) As of July 1, 2020, 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; and

(2) Smoking is prohibited in all enclosed and unenclosed common areas, other than in a designated smoking area.

(c) As of January 1, 2021, for any existing unit and as of the effective date for any new unit, every seller of a unit in a multiunit 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; and

(2) Smoking is prohibited in all enclosed and unenclosed common areas, other than in a designated smoking area.

(d) The person or persons with legal control over common areas shall post clear and unambiguous “No Smoking/No Vaping” signs in sufficient numbers and locations in common areas where smoking is prohibited by this chapter or other law. The person or persons with legal control over the common areas shall maintain such signs. The absence of signs shall not be a defense to a violation of any provision of this chapter. “No Smoking/No Vaping” signs are not required inside or on doorways of units.

(e) No person with legal control over any nonsmoking area shall permit smoking in the nonsmoking area, except as provided in Section 8.35.100, No smoking permitted in common areas except in designated smoking areas.

(Ord. No. 19-7, § 6 (Exh. A))