Cudahy Municipal Code Ch. 8.40 Secondhand Smoke Control

This chapter may be referred to as the city’s “Comprehensive Secondhand Smoke Control Ordinance.” (Ord. 694 § 1, 2018).

(1) Purpose. The purposes of this chapter are to:

(a) Protect the public health, safety, and general welfare by prohibiting smoking in public places and in the dwelling units and common areas of multifamily residential properties under circumstances where one or more persons will be exposed to secondhand smoke;

(b) Ensure a cleaner and more hygienic environment for the city, its residents, its guests, and its natural resources;

(c) Strike a reasonable balance between the needs of persons who smoke and the needs of nonsmokers, including children, to breathe smoke free air, by recognizing the threat to public health and the environment that smoking causes, and by acknowledging that, when these needs conflict, the need to breathe smoke-free air must prevail; and

(d) Recognize the right of city residents, workers, and visitors to be free from unwelcome secondhand smoke.

(2) Findings. The city council hereby finds, determines, and declares that:

(a) It is estimated that only 15 percent of a cigarette’s smoke is inhaled by the smoker, while 85 percent is released into the air for others to breathe;

(b) Extensive medical and scientific research confirms that tobacco smoke is harmful to smokers and nonsmokers alike, triggering eye, nose, throat, and sinus irritation; hastening lung disease, including emphysema; and causing heart disease and lung cancer;

(c) In 1992, the United States Surgeon General reported that involuntary smoking by inhaling secondhand smoke (also called “environmental tobacco smoke”) can cause lung cancer in healthy nonsmokers and poses a significant public health hazard;

(d) In 2006, the United States Surgeon General concluded that a risk-free level of exposure to secondhand smoke does not exist, and neither separating smokers from nonsmokers nor installing ventilation systems effectively eliminates secondhand smoke;

(e) The United States Environmental Protection Agency (U.S. EPA) has classified secondhand smoke as a Group A carcinogen, the most dangerous class of carcinogen;

(f) The United States Centers for Disease Control and Prevention (CDC) has concluded that secondhand smoke contains approximately 70 cancer-causing chemicals;

(g) The CDC has concluded that secondhand smoke causes approximately 3,000 lung cancer deaths per year among adult nonsmokers in the United States, and that even brief exposure can damage cells in ways that set the cancer process in motion;

(h) The CDC has found that secondhand smoke causes children to suffer from lower respiratory tract illness, such as bronchitis and pneumonia; exacerbates childhood asthma; and increases the risk of acute chronic middle ear infections in children;

(i) The California Environmental Protection Agency has concluded that secondhand smoke causes coronary heart disease in nonsmokers;

(j) The California Air Resources Board has put secondhand smoke in the same category as the most toxic automotive and industrial air pollutants by categorizing it as a toxic air contaminant for which no safe level of exposure exists;

(k) Secondhand smoke is especially hazardous to particular groups, including those with chronic health problems, the elderly, and children;

(l) Inside buildings, tobacco smoke contributes significantly to indoor air pollution;

(m) The aesthetic impacts and odors of secondhand smoke pose a nuisance and annoyance to nonsmokers when in close proximity to people who are smoking;

(n) Smoking in parks or recreational facilities endangers children and other users by exposing them to secondhand smoke;

(o) Within parks and recreational facilities, discarded cigarette and cigar butts (which do not readily decompose) pose a particularly hazardous risk to small children who sometimes ingest the butt or who handle it while it is still hot;

(p) Discarding a lighted cigarette or cigar butt onto the ground in a city park or recreational facility not only has the potential to cause a fire, but also is a major source of litter and pollution, by washing into storm drains and then ultimately contaminating the ocean;

(q) In outdoor dining areas; outdoor service areas; outdoor gathering and event areas; enclosed common areas of multiunit residential housing complexes; in proximity to entrances/exits, windows, and vents of buildings open to the public, smoking endangers the health of nonsmokers who are in the same area;

(r) Neither the United States Constitution nor the California Constitution gives a person a constitutional right to smoke;

(s) The consumption of controlled substances in certain enclosed and unenclosed areas of the city poses a risk to the health, safety, and welfare of the public, including, but not limited to, in many of the same manners as the consumption of tobacco products. (Ord. 694 § 1, 2018).

For purposes of this chapter, the following words and phrases shall have the following meaning unless the context clearly indicates otherwise:

(1) “Cannabis” shall mean 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, as defined in California Business and Professions Code Section 26001(f), as that section and subdivision may be amended or interpreted by the California courts or superseded by any successor statute. “Cannabis” also means the separated resin, whether crude or purified, obtained from cannabis. “Cannabis” does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination. “Cannabis” does not mean industrial hemp as defined by Section 11018.5 of the California Health and Safety Code, as that section may be amended or interpreted by the California courts or superseded by any successor statute. “Cannabis” includes medical cannabis.

(2) “City” shall mean the city of Cudahy, California.

(3) “City building or structure” shall mean any building or structure (as these terms are defined by the Cudahy Building Code) that the city of Cudahy or the Cudahy development commission (or successor agency thereto) owns, controls, operates, occupies, manages, or maintains.

(4) “City park” shall mean a mini-park, neighborhood park, community park, regional park, bikeway, trail, greenbelt, developed or undeveloped parkland, open space land, open space parcel, or open space area that the city or the Cudahy development commission (or successor agency thereto) owns, controls, operates, occupies, manages, or maintains. It shall also include all buildings, structures, facilities, fields, or equipment within said city park.

(5) “City parking lot or structure” shall mean a parking lot or structure that the city or the Cudahy development commission (or successor agency thereto) owns, controls, operates, occupies, manages, or maintains.

(6) “City recreational facility” shall mean an indoor or outdoor area, location, place, site, lot, building, structure, facility, or complex that is open to the general public for one or more recreational or sports activities or purposes, regardless of a fee for admission or use, that the city or the Cudahy development commission (or successor agency thereto) owns, controls, operates, occupies, manages, or maintains. It shall also include all buildings, structures, facilities, fields, or equipment within said city facility.

(7) “City vehicle” shall mean any vehicle that is owned, leased or rented by the city, as well as any vehicle that a city employee drives, operates, or has control over in connection with said person’s employment with the city.

(8) “Common area” shall mean any area of a multiunit residence (as defined in this chapter) accessible to and usable by residents of more than one unit, including, but not limited to, hallways, stairwells, lobby areas, elevators, laundry rooms, common cooking areas, playrooms, fitness rooms, swimming pools, and parking areas.

(9) “Electronic smoking device” shall mean an electronic device that can be used to deliver an inhaled dose of nicotine or other substances. An “electronic smoking device” includes a device that is manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigarillo, an electronic pipe, an electronic hookah, a vape pen, or a vapor pen.

(10) “Enclosed area” shall mean:

(a) Any covered or partially covered area having more than 50 percent of its perimeter walled or otherwise closed to the outside (for example, a covered porch with more than two walls), irrespective of whether said walls or other vertical boundaries include any openings, including those designed for ingress, egress, or ventilation; or

(b) Any space open to the sky (hereinafter, “uncovered”) having more than 75 percent of its perimeter walled or otherwise closed to the outside (for example, a courtyard), irrespective of whether said walls or other vertical boundaries include any openings, including those designed for ingress, egress, or ventilation.

(i) An uncovered space of 3,000 square feet or more (for example, a field in an open-air arena) is not an enclosed area as defined in this chapter.

(11) “Landlord” shall mean any person other than a sublessor who owns real property leased as residential property, who lets residential property, or who manages such property.

(12) “Multiunit residence” shall mean a premises or lot that contains two or more dwelling units, including, but not limited to, apartments, condominiums, senior citizen housing, nursing homes, single room occupancy hotels and properties containing an accessory dwelling unit. “Multiunit residence” does not include:

(a) A mobile home park unit; or

(b) A single-family residence (without an accessory dwelling unit on the same property).

(13) “Nonprofit entity” shall mean 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 of the entity and not to private gain. A public agency, including the city, is not a nonprofit entity within the meaning of this subsection.

(14) “Outdoor dining area” shall mean:

(a) An outdoor area that is open to the general public, or closed to the public for a private function, where food and/or beverages are offered, served, or consumed, regardless of whether compensation is offered or given in exchange;

(i) “Outdoor dining area” shall include, but shall not be limited to:

(A) A restaurant, or a bar, or both;

(B) A standing area;

(C) A seating area;

(D) A patio area.

(ii) “Outdoor dining area” does not include any unenclosed dining area at a private residence.

(15) “Outdoor public event” shall mean an activity, ceremony, event, fair, function, gathering, meeting, pageant, or program, whether athletic, civic, cultural, charitable, community, entertainment, intellectual, recreational, or social, that:

(a) Is open to the general public;

(b) Takes place outside of an enclosed building or structure; and

(c) A person, employer, business, nonprofit entity, or the city sponsors, hosts, organizes, or operates.

(16) “Outdoor seating area” shall mean bleachers, benches, or seats located outside of an enclosed building or structure, regardless of whether permanently or temporarily affixed, that is provided for an audience, viewers, spectators, or participants of an event that is adjacent to, in front of, facing, or opposite said event.

(17) “Place of employment” shall mean any area under the control of an employer, business, or nonprofit entity that an employee, independent contractor, or volunteer may have cause to enter in the normal course of operations, regardless of hours of operation. For purposes of this chapter, those places specified in Subsections (e)(1), (e)(3), (e)(4), (e)(6), and (e)(7) of California Labor Code Section 6404.5 shall be deemed a place of employment.

(a) “Place of employment” does not include any owner-operated business as defined by California Labor Code Section 6404.5(b); provided, that the business does not share a ventilation system with any other place of employment; nor shall it include (i) retail or wholesale tobacco shops and private smokers’ lounges as defined by California Labor Code Sections 6404.5(e)(2)(A) and 6404.5(e)(2)(B), and (ii) medical research or treatment sites, if smoking is integral to the research and treatment being conducted.

(18) “Private enforcer” is defined in CMC 8.40.080(2).

(19) “Public place” shall mean any area, location, place, site, property, lot, building, structure, facility, or complex, public or private, open to the general public regardless of any fee or age requirement, including, but not limited to, streets, sidewalks, plazas, bars, restaurants, clubs, stores, stadiums, polling places, parks, playgrounds, restrooms, elevators, taxis, and buses. A private residence is not a public place within the meaning of this subsection.

(20) “Public transit station or stop” shall mean an enclosed or unenclosed platform, sidewalk, shelter, bench, or area where people wait for public transportation, such as a train, bus, shuttle, or taxicab. It shall also include, but shall not be limited to, any ancillary area such as restrooms, kiosk area, storage locker area, and pedestrian path or walkway.

(21) “Public transit vehicle” shall mean any vehicle used for public transportation. “Public transit vehicle” shall include, but shall not be limited to, trains, buses, shuttles, and taxicabs.

(22) “Reasonable distance” shall mean the greatest distance practicable that ensures the occupants of an area in which smoking is prohibited are not exposed to secondhand smoke created by smokers outside the area. “Reasonable distance” shall be a minimum of 20 feet.

(23) “Recreational area” shall mean any public or private area open to the public for recreational purposes whether or not any fee for admission is charged, including, without limitation, parks, gardens, sporting facilities, stadiums, and playgrounds.

(24) “Service area” shall mean any area, public or private, designated for one or more persons to wait for a transaction, entry, exit, or service of any kind, regardless of whether such service involves the exchange of money. “Service area” includes, but shall not be limited to, any area designated for lines or waiting for ATM machines; banks; information kiosks; restaurants and other food service venues; vending machines; tickets or admission to a theater or event; waiting areas at car washes and vehicle service establishments; and valet pick-up areas.

(25) “Smoking” or “to smoke” shall mean inhaling, exhaling, burning, or possessing a lighted, heated, or ignited tobacco product, lighted tobacco paraphernalia, electronic smoking device, lighted cannabis, or any other lighted weed or plant (including, but not limited to, a lighted pipe, lighted hookah, lighted cigar, or lighted cigarette of any kind).

(26) “Tobacco product” shall mean any substance containing, made from, 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, pipe tobacco, snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco. Tobacco product includes, but is not limited to, any electronic smoking device that delivers nicotine or other substances to the person inhaling from the device, including, but not limited to, an electronic cigarette, cigar, pipe, or hookah. “Tobacco product” does not include any 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 that approved purpose.

(27) “Unenclosed area” shall mean any area which is not an enclosed area.

(28) “Unit” shall mean: (a) a dwelling space consisting of essentially complete independent living facilities for one or more persons, including, for example, permanent provisions for living and sleeping, and any associated private outdoor spaces such as balconies and patios; and (b) senior citizen housing and single-room occupancy hotels, as defined in California Health and Safety Code Section 50519(b)(1), even where lacking private cooking or plumbing facilities. “Unit” does not include lodging in a hotel or motel that meets the requirements set forth in California Civil Code Section 1940(b)(2). (Ord. 694 § 1, 2018).

(1) Smoking is prohibited in the following areas within the city of Cudahy:

(a) City Property. Except as otherwise provided by this chapter or by state or federal law, no person shall smoke or otherwise permit, allow, or suffer smoking in any city building or structure, city park, city parking lot or structure, city recreational facility, or city vehicle.

(b) Public Areas. Except as otherwise provided by this chapter or by state or federal law, no person shall smoke or otherwise permit, allow, or suffer smoking within any of the following areas:

(i) Enclosed areas at a place of employment;

(ii) All public places;

(iii) Multiunit residences (as set forth in CMC 8.40.050);

(iv) Residences used as a child care facility, health care facility, board and care facility, or as a community foster care facility as such terms are defined by California law;

(v) Service areas;

(vi) Outdoor dining areas;

(vii) Outdoor public events;

(viii) Outdoor seating areas;

(ix) Any public transit vehicle and associated public transit stations and stops.

(2) Except as otherwise provided by this chapter, or by state or federal law, no person shall smoke or otherwise permit, allow, or suffer smoking within 20 feet of any place, property, area, or location in which smoking is prohibited under subsection (1) of this section, or within 20 feet of any window, door, vent, or other opening into any place, property, area, or location in which smoking is prohibited under subsection (1) of this section.

(3) Exception – City-Approved Designated Smoking Area. Notwithstanding the provisions of subsection (1)(b) of this section, smoking is permitted within city-approved designated smoking areas established as set forth in this section.

(a) Entertainment Zone. The owner of a public place (as defined by this chapter) that is located within the Entertainment (ENT) Zone of the city (as established in CDC 20.12.010) may designate a portion of the public place to be a designated smoking area; provided, that the designated smoking area complies with the following:

(i) Must be an unenclosed area;

(ii) Must be located at least 20 feet from any unenclosed area where smoking is prohibited, other than unenclosed areas on the same property on which the designated smoking area will be located;

(iii) Must be located at least 20 feet from any enclosed area where smoking is prohibited and from any window, door, vent, or other opening into any enclosed area where smoking is prohibited;

(iv) Must be located at least 20 feet from any area either primarily used by children or otherwise designed to facilitate physical activity (including, but not limited to, playgrounds, tennis courts, and swimming pools);

(v) Must be no more than 10 percent of the total unenclosed area of the public place for which it is being established;

(vi) Must have a clearly marked perimeter;

(vii) Must be identified by conspicuous signs with lettering of not less than one inch in height stating “Designated Smoking Area Pursuant to CMC 8.40.040(3)” or other language approved by the city manager or designee thereof;

(viii) Must be approved in writing by the city manager, or designee thereof, who shall approve any request for a designated smoking area if smoking in that area is not otherwise prohibited by federal, state, county, and/or local law and otherwise adheres to the requirements of subsection (3)(a) of this section. The city manager or designee thereof is authorized to require modification or elimination of designated smoking areas as laws change, as binding agreements are created, and as other nonsmoking areas on the same property or adjacent public or private properties are established.

(b) Temporary Use Permit. Any permittee authorized to conduct a temporary use pursuant to CMC 20.84.260(3) may designate a portion of the place where the temporary use will be conducted to be a designated smoking area; provided, that the designated smoking area complies with all of the requirements set forth in subsections (3)(a)(i) through (3)(a)(viii) of this section.

Nothing in this section requires an owner of a public place or a holder of a temporary use permit to designate a smoking area.

(4) Nothing in this section shall be deemed to authorize or allow smoking in any area where smoking is prohibited by state or federal law. (Ord. 694 § 1, 2018).

(1) Smoking is prohibited in the following areas within multiunit residences in the city:

(a) Dwelling Units. Except as otherwise provided by this chapter or by state or federal law, no person shall smoke or otherwise permit, allow, or suffer smoking within any dwelling unit that adjoins another dwelling unit or interior common area within a multiunit residence.

(i) Exceptions.

(A) If a dwelling unit that adjoins another dwelling unit or interior common area within a multiunit residence is subject to a lease or other rental agreement and smoking is authorized under the lease or rental agreement, smoking is permitted within the dwelling unit until the lease or rental agreement is modified to prohibit smoking in accordance with subsection (2) of this section.

(B) If a dwelling unit that adjoins another dwelling unit or interior common area within a multiunit residence is owner-occupied, smoking is permitted in the owner-occupied dwelling unit until the owner ceases occupancy of the dwelling unit or until January 1, 2019, whichever occurs first.

(b) Common Areas. Except as otherwise provided by this chapter or by state or federal law, no person shall smoke or otherwise permit, allow, or suffer smoking within any common area of any multiunit residence.

(i) Exception.

(A) City-Approved Designated Smoking Area. Notwithstanding the provisions of this section, the owner of a multiunit residence or an agent thereof may designate a portion of a common area at a multiunit residence to be a designated smoking area; provided, that the designated smoking area complies with the following:

1. Must be an unenclosed area;

2. Must be located at least 20 feet from any common area where smoking is prohibited and from any window, door, vent, or other opening into any dwelling unit or other enclosed common area where smoking is prohibited;

3. Must be located at least 20 feet from any common area either primarily used by children or otherwise designed to facilitate physical activity (including, but not limited to, playgrounds, tennis courts, and swimming pools);

4. Must be no more than 10 percent of the total unenclosed common area of the multiunit residence for which it is being established;

5. Must have a clearly marked perimeter;

6. Must be identified by conspicuous signs with lettering of not less than one inch in height stating “Designated Smoking Area Pursuant to CMC 8.40.050(1)(b)(i)(A)” or other language approved by the city manager or designee thereof;

7. Must be approved in writing by the city manager, or designee thereof, who shall approve any request for a designated smoking area if smoking in that area is not otherwise prohibited by federal, state, county, and/or local law and otherwise adheres to the requirements of subsection (1)(b)(i)(A) of this section. The city manager or designee thereof is authorized to require modification or elimination of designated smoking areas as laws change, as binding agreements are created, and as other nonsmoking areas on the same property or adjacent public or private properties are established.

Nothing in this section requires an owner of a multiunit residence to designate a smoking area.

(2) Required Lease Terms.

(a) Commencing immediately, every lease or other rental agreement for the occupancy of a dwelling unit that adjoins another dwelling unit or interior common area within a multiunit residence entered into, renewed, or continued month-to-month shall include the following terms on the earliest possible date allowed by law after providing any required legal notice:

(i) A clause stating that smoking is prohibited within any dwelling unit that adjoins another dwelling unit or interior common area within a multiunit residence and all common areas of a multiunit residence (except for city-approved designated smoking areas), and a reference to this section;

(ii) A clause stating that it is a material breach of the lease or rental agreement to cause, permit, aid, abet, or conceal smoking within any dwelling unit that adjoins another dwelling unit or interior common area within a multiunit residence and any common area of a multiunit residence other than a city-approved designated smoking area or where otherwise allowed by law; and

(iii) A clause stating that all lawful occupants of any unit in the multiunit residence are third-party beneficiaries of the clauses required by subsections (2)(a)(i) and (2)(a)(ii) of this section.

(b) The lease or agreement terms required by subsection (2)(a) of this section are incorporated by force of law into any lease or other agreement for the occupancy of a unit in a multiunit residence made on or after the effective date of the ordinance codified in this section which lease does not fully comply with subsection (2)(a) of this section. (Ord. 694 § 1, 2018).

(1) Disposal of Waste. No person shall dispose of used smoking or tobacco products within any area in which smoking is prohibited, including within any reasonable distance required by this chapter.

(2) Smoker’s Waste Receptacles. Except as otherwise provided by this chapter or by state or federal law, no person, employer, or nonprofit entity shall cause the presence or placement of a smoker’s waste receptacle (for example, ashtrays or ash cans) within any area in which smoking is prohibited by law, including within any reasonable distance required by this chapter. Notwithstanding the foregoing, the presence of ash receptacles in violation of this subsection shall not be a defense to a charge of smoking in violation of any provisions of this chapter.

(3) Signs.

(a) “No Smoking” or “Smoke Free” 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) or any alternative signage approved by the city manager shall be conspicuously posted in every building, structure, common area, or property where smoking is regulated by this chapter by the owner, operator, manager, or other person having control of the building, structure, area, or property.

(i) The city manager shall cause signs to be posted at each entrance to a city building or structure, city park, city parking lot or structure, and city recreational facility where smoking is prohibited by this chapter.

(b) Nothing in this section shall require the posting of “No Smoking” or “Smoke Free” signs inside of any dwelling unit or on the doorway of any dwelling unit in a multiunit residence.

(c) Signage required by this subsection shall not be subject to Chapter 20.84 CMC (Sign Regulations).

(d) Notwithstanding the requirements of this section, the presence or absence of signs shall not be a defense to the violation of any other provision of this chapter.

(4) Intimidation. No person shall intimidate, threaten or effect a reprisal, or retaliate against another person who seeks to attain compliance with one or more of this chapter’s provisions.

(5) Private Regulations. Nothing in this chapter prohibits any person, employer, or nonprofit entity 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. 694 § 1, 2018).

(1) Any person who causes, permits, aids, abets, suffers, or conceals a violation of any provision of this chapter shall be guilty of a misdemeanor offense punishable in accordance with Chapter 1.36 CMC.

(2) The city council declares that nonconsensual exposure to secondhand smoke constitutes a public nuisance, and that the uninvited presence of secondhand smoke on real property is a nuisance and a trespass.

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

(4) The city prosecutor, city attorney, any peace officer, any city code enforcement officer, or any other city official designated by the city manager may enforce this chapter.

(5) Nothing in this chapter imposes upon the city any responsibility or obligation to enforce or seek any legal redress, civil or criminal, for any violation of CMC 8.40.050. Nothing in this chapter shall create a right of action in any person against the city of Cudahy or its agents to compel public enforcement of CMC 8.40.050 against private parties. (Ord. 694 § 1, 2018).

(1) The city attorney or city prosecutor may bring a civil action to enforce this chapter and to obtain the remedies specified below or otherwise in equity or at law.

(2) Any person acting for the interest of himself, herself, or of its members, or of the general public (hereinafter, “private enforcer”) may bring a civil action to enforce this chapter with the remedies specified below, if both of the following requirements are met:

(a) The action is commenced more than 60 days after the private enforcer has given written notice of the alleged violation of this chapter to the city attorney and to the alleged violator; and

(b) No person acting on behalf of the city or the state has commenced or is prosecuting an action regarding the violation(s) which was or were the subject of the notice on the date the private action is filed.

(3) A private enforcer shall provide a copy of his, her, or its action to the city attorney or city prosecutor within seven calendar days of filing it.

(4) Upon settlement or judgment of any action brought pursuant to subsection (7) of this section, the private enforcer shall give the city attorney or city prosecutor a notice of that settlement or judgment and of the final disposition of the case. No private enforcer may settle such an action, unless the city attorney or the court determines the settlement to be reasonable in light of the purposes of this chapter and any settlement in violation of this requirement may be set aside upon motion to a court of competent jurisdiction by the city attorney or city prosecutor.

(5) Upon proof of a violation of this chapter, the court shall award the following:

(a) Damages in the amount of either:

(i) Actual damages according to proof;

(ii) Two hundred fifty dollars for each violation of this chapter (hereinafter, “statutory damages”) where insufficient or no proof of actual damages has been proved. Unless otherwise specified in this chapter, each day of a continuing violation shall constitute a separate violation. Notwithstanding any other provision of this chapter, no private enforcer suing on behalf of the general public shall recover statutory damages based upon a violation of this chapter if a previous claim brought on behalf of the general public for statutory damages and based upon the same violation has been adjudicated, whether or not the private enforcer was a party to that earlier adjudication.

(b) Restitution to the appropriate party or parties of the gains obtained by way of violation of this chapter.

(c) Exemplary damages, where it is proven by clear and convincing evidence that the defendant is guilty of oppression, fraud, malice, or a conscious disregard for the public health and safety.

(d) Attorney’s fees and costs reasonably incurred by a prevailing party. In any action brought on behalf of the city, attorney’s fees are not recoverable by any person as a prevailing party unless the city manager, or a designee thereof, or an attorney for, and on behalf of, the city elects in writing to seek recovery of the city’s attorney’s fees at the initiation of that individual action or proceeding. Failure to make such an election precludes any entitlement to, or award of, attorney’s fees in favor of any person or the city.

(i) Provided that the city has made an election to seek attorney’s fees, an award of attorney’s fees to a person shall not exceed the amount of reasonable attorney’s fees incurred by the city in that action or proceeding.

(6) Upon proof of at least one violation of this chapter, a private enforcer, the city attorney, city prosecutor, or any peace officer or code enforcement official may obtain an injunction against further violations of this chapter or, as to small claims court actions, a judgment payable on condition that a further violation of this chapter occurs within a time specified by the court.

(7) Notwithstanding any legal or equitable bar, a private enforcer may bring an action to enforce this chapter solely on behalf of the general public. When a private enforcer does so, nothing about such an action shall act to preclude or bar the private enforcer from bringing a subsequent action on his, her, or its own behalf based upon the same facts.

(8) Nothing in this chapter shall prohibit a private enforcer from bringing a civil action in small claims court to enforce this chapter, as long as the amount in demand and the relief sought are within the jurisdiction of small claims court. (Ord. 694 § 1, 2018).

If any section, subsection, paragraph, sentence, clause or phrase of this chapter is declared by a court of competent jurisdiction to be unconstitutional or otherwise invalid, such decision shall not affect the validity of the remaining portions of this chapter. The city council declares that it would have adopted this chapter, and each section, subsection, sentence, clause, phrase or portion thereof, irrespective of the fact that any one or more sections, subsections, phrases, or portions be declared invalid or unconstitutional. (Ord. 694 § 1, 2018).