Culver City Municipal Code Ch. 9.11 Smoking Regulations

Section

Regulation of Smoking in Outdoor Areas

Regulation of Smoking in Multi-Unit Housing

Cross-reference:

REGULATION OF SMOKING IN OUTDOOR AREAS

It is the intent of the City Council to control exposure to secondhand smoke, vapors and aerosol by prohibiting smoking and the use of electronic smoking devices at certain locations, in addition to those places where smoking is prohibited by state law. The California Air Resources Board has identified environmental tobacco smoke, or secondhand smoke, as a toxic air contaminant, which may cause and contribute to death or serious illness, including increased risks of cancer, and is especially hazardous to children and people with asthma and other respiratory problems. In addition, the California Department of Public Health has identified electronic smoking device emissions as a health concern for those exposed to secondhand aerosol (also known as vapor), which results in nicotine absorption at levels comparable to secondhand smoke. The intent and purpose of prohibiting smoking and the use of electronic smoking devices at the locations identified in this chapter is to protect the public health, safety, and welfare by reducing the number of locations in the city where exposure to secondhand smoke, aerosol and vapors can occur. The provisions of this chapter are intended to be a supplement to existing state law smoking prohibitions and restrictions.

(Ord. No. 2008-009 § 1 (part); Ord. No. 2020-005 § 1 (part))

For the purposes of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

DESIGNATED SMOKING AREA. An area in the City Hall Courtyard that has designated by the City, in its discretion, as an area where smoking is permissible.

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, or any other product name or descriptor.

ELECTRONIC SMOKING DEVICE PARAPHERNALIA. Cartridges, cartomizers, e-liquid, smoke juice, tips, atomizers, ELECTRONIC SMOKING DEVICE batteries, ELECTRONIC SMOKING DEVICE chargers, and any other item specifically designed for the preparation, charging, or use of ELECTRONIC SMOKING DEVICES.

ENCLOSED AREA. An area that is closed in by a roof and walls, with appropriate openings for ingress and egress.

NON-ENCLOSED AREA. A predominantly outdoor area that does not meet the definition of “enclosed,” including but not limited to, OUTDOOR DINING AREAS.

OUTDOOR BAR PATIO. Any non-enclosed area located on private or public property utilized primarily for the serving and/or consumption of alcoholic beverages, in which the serving and/or consumption of food is incidental to the serving and/or consumption of such beverages, and where minors are not allowed to enter and remain. OUTDOOR BAR PATIO does not include an OUTDOOR DINING AREA, regardless of whether alcoholic beverages are served and/or consumed therein.

OUTDOOR DINING AREA. Any non-enclosed area located on private or public property, made available to or customarily used by the general public, that is designed, established or regularly used for consuming food and/or beverages, or where food and/or beverages are served, whether or not for compensation. This includes, but is not limited to, restaurants, hotels, patios, and coffee shops. This does not include OUTDOOR BAR PATIOS.

PARK OR RECREATIONAL AREA. Any outdoor area, owned or operated by the City of Culver City, open to the general public for primarily recreational purposes, regardless of any fee or age requirement, including but not limited to, picnic areas, playgrounds, sports or athletic fields, walking paths, gardens, hiking trails, bike paths, skateboard parks and dog parks. A PARK OR RECREATIONAL AREA shall include the City Hall Courtyard (except in DESIGNATED SMOKING AREAS), Town Plaza, any paved public sidewalk immediately abutting the boundary of the PARK OR RECREATIONAL AREA, or any parking area within the boundaries of the PARK OR RECREATIONAL AREA.

SMOKING or TO SMOKE. The possession of a lighted or operating TOBACCO PRODUCT, lighted or operating TOBACCO PARAPHERNALIA, or any other lighted weed or plant, including a lighted pipe, cigar, hookah pipe, or cigarette of any kind; and the lighting or operation of a TOBACCO PRODUCT, TOBACCO PARAPHERNALIA, or any other weed or plant, including a pipe, cigar, hookah pipe, or cigarette of any kind, intended for human inhalation.

TOBACCO PARAPHERNALIA. Any item designed or marketed for the consumption, use, or preparation of TOBACCO PRODUCTS. TOBACCO PARAPHERNALIA includes electronic smoking device paraphernalia.

TOBACCO PRODUCT shall mean:

1. Any 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 a cigarette, cigar, little cigar, chewing tobacco, pipe tobacco, snuff, or snus; and

2. Any ELECTRONIC SMOKING DEVICE and any substances that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine.

3. Notwithstanding the definitions set forth in subsections 1. and 2. to the contrary, TOBACCO PRODUCT includes any component, part, or accessory of subsections 1. and 2., whether or not any of these contains tobacco or nicotine, including but not limited to filters, rolling papers, blunt or hemp wraps, hookahs, and pipes.

4. TOBACCO PRODUCT does not include drugs, devices, or combination products authorized for sale by the United States Food and Drug Administration, as those terms are defined in the Federal Food, Drug and Cosmetic Act.

(Ord. No. 2008-009 § 1 (part); Ord. 2020-005 § 1 (part))

A. Prohibition. Smoking is prohibited in all outdoor dining areas located on private or public property, including the public right-of-way. Smoking is further prohibited in all non-enclosed areas within five feet of any outdoor dining area, except while actively passing on the way to another destination. Outdoor bar patios are exempted from the provisions of this section, provided the smoke does not enter adjacent areas in which smoking is prohibited by law or by the owner, lessee, or licensee of the adjacent property.

B. Posting of signs. Every outdoor dining area subject to the prohibition set forth in subsection A. above must have one or more conspicuously displayed signs, stating that smoking is prohibited in the outdoor dining area. Such signs must have text and/or graphics to clearly indicate that smoking is prohibited in the outdoor dining area, and include an appropriate Culver City Municipal Code citation. Any text must be clearly contrasted with the background, and must be a minimum of one inch in height. The text must state “No Smoking,” “Smoke Free Area,” or another phrase to clearly indicate that smoking is prohibited. Any graphics must be substantially similar to 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. Such signs shall be posted in a quantity and manner reasonably likely to inform individuals occupying the outdoor dining area that smoking is prohibited within the outdoor dining area, and must be made of permanent, weather-resistant materials.

C. Time of posting. Every business or property subject to subsection A. above shall post the signs required by this section within 30 days of the effective date of this chapter. Every business or property that becomes subject to the provisions of this chapter after its effective date shall post the required signs immediately upon commencing operations.

(Ord. No. 2008-009 § 1 (part))

A. Prohibition. Smoking within any park or recreational area is prohibited.

B. Exception. This Section shall not apply to any Designated Smoking Area, which may be established in the City Hall Courtyard at the City’s discretion.

C. Tobacco waste. The disposal of any tobacco product or tobacco paraphernalia within any park or recreational area is prohibited, except in a city-designated waste receptacle, or unless being done as part of a scene in a film, television or live performance production.

D. Posting of signs. The city shall cause the installation of “No Smoking” signs, with letters of no less than one inch in height and including the international “No Smoking” symbol, consisting of a pictorial representation of a burning cigarette enclosed in a red circle crossed by a red bar. Such signs shall

be clearly and conspicuously posted and maintained at all main entrances to a park or recreational area, and additional signs shall be posted in a quantity and manner reasonably likely to inform individuals occupying the park or recreational area that smoking is prohibited within the area.

(Ord. No. 2008-009 § 1 (part); Ord. No. 2020-005 § 1 (part))

A. Nothing in this chapter shall be construed to prohibit smoking in any area in which it is already prohibited by state or federal law, unless the applicable state or federal law permits additional local regulation.

B. Nothing in this chapter shall be construed to grant any person an affirmative right to smoke or permit smoking in any area in which smoking is otherwise prohibited by this chapter or state or federal law, or prohibited by a person with property rights in the no-smoking area.

C. No person shall smoke or knowingly permit smoking in an area under the person's legal or de facto control in which smoking is prohibited by this chapter or state or federal law, except a person who is already compelled to act under state or federal law, unless the applicable state or federal law permits additional local regulation.

D. No person shall willfully mutilate or destroy any sign required by this chapter.

E. Signs required by this chapter are exempt from the sign requirements in Chapter 17.330 of this code.

F. The absence of signs required by this chapter shall not be a defense to a violation of any provision of this chapter.

G. No person shall intimidate, threaten any reprisal, or effect any reprisal, for the purpose of retaliating against another person who seeks to attain compliance with this chapter.

(Ord. No. 2008-009 § 1 (part))

The provisions of this chapter shall not apply to any person acting in a scene of a live performance production or a film or television production, as long as a film permit has been obtained, if required pursuant to the provisions of Chapter 11.14 of this code.

(Ord. No. 2008-009 § 1 (part))

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

B. A violation of this chapter is subject to a civil action brought by the City Attorney, punishable by a civil fine of not less than $100, and not exceeding $1,000, per violation.

C. A violation of any provision of this chapter may, at the discretion of the City Attorney, be prosecuted as an infraction or misdemeanor. The City Council shall, by resolution, establish the penalties for a violation of this chapter, but in no event shall such penalties exceed the maximum penalties permitted under state law.

D. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter.

E. Any violation of this chapter is hereby declared to be a public nuisance. In addition, any violation of this chapter involving smoking is hereby declared to be a private nuisance.

F. Any person acting for the interests of itself, its members, or the general public may bring a civil action to enforce this chapter.

(Ord. No. 2008-009 § 1 (part))

In the event of any conflict between this chapter and any other provision of this code, this chapter shall control.

(Ord. No. 2008-009 § 1 (part))

REGULATION OF SMOKING IN MULTI-UNIT HOUSING

It is the intent of the City Council of the City of Culver City, in enacting this Subchapter, to provide for the public's health, safety, and welfare by discouraging the inherently dangerous activity of tobacco use around non-consenting individuals, protecting children from exposure to smoking where they live and play and protecting the public from nonconsensual exposure to secondhand smoke in and around their homes.

(Ord. No. 2014-006 § 1)

Notwithstanding the definitions set forth in Section 9.11.100, et seq., for the purposes of this Subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

ADJACENT PROPERTY. Any unenclosed area of property, publicly or privately owned, that abuts a multi-unit residence.

COMMON AREA. Every enclosed area or unenclosed area of a multi-unit residence that residents of more than one (1) unit of that multi-unit residence are entitled to enter or use, including, for example, halls and paths, lobbies and courtyards, elevators and stairs, community rooms and playgrounds, gym facilities and swimming pools, parking garages and parking lots, shared restrooms, shared laundry rooms, shared cooking areas, and shared eating areas.

COMMON INTEREST COMPLEX. A multi-unit residence that is a condominium project, a community apartment project, a stock cooperative, or a planned development as defined by Cal. Civil Code § 4100.

DESIGNATED SMOKING. An area where smoking is permissible and has been established in accordance with the provisions of Section 9.11.215 of this Subchapter.

ENCLOSED AREA. An area in which outside air cannot circulate freely to all parts of that 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 (3) walls or other vertical boundaries of any height whether or not those boundaries include vents or other openings; or

2. Four (4) walls or other vertical boundaries that exceed six (6) feet in height, whether or not those boundaries include vents or other openings.

EXISTING UNIT. A unit in existence on or before November 26, 2014.

HOA. An organization or entity established for the purpose of managing and/or maintaining a common interest complex.

LANDLORD. Any person who owns property let for residential use, any person who lets residential property, and any person who manages such property, except that LANDLORD does not include a master tenant who sublets a unit as long as the master tenant sublets only a single unit of a multi-unit residence.

MULTI-UNIT RESIDENCE. Residential property containing two (2) or more units and shall include a rental complex and a common interest complex. The following types of housing are specifically excluded from this definition:

• 1. A hotel or motel;
• 2. A mobile home park;
• 3. A single-family home; and

4. A single-family home with a detached or attached accessory dwelling unit when permitted pursuant to Section 17.400.095 of this Code.

NEW UNIT. A unit that is issued a certificate of occupancy on or after November 26, 2014.

NONSMOKING AREA. Any enclosed area or unenclosed area of a multi-unit residence in which smoking is prohibited by:

• 1. This Subchapter or other law;
• 2. By binding agreement relating to the ownership, occupancy, or use of real property; or
• 3. By designation of a person with legal control over the area.

In the case of a smoking prohibition established only by private agreement or designation and not by this Subchapter or other law, it shall not be a violation of this Subchapter for a person to engage in smoking or to allow smoking in that area unless:

1. The person knows that smoking is not permitted; or

2. A reasonable person would know that smoking is not permitted.

RENTAL COMPLEX. A multi-unit residence for which fifty percent (50%) or more of units are let by or on behalf of the same landlord.

SMOKE. The gases and particles, released into the air as a result of combustion when the apparent or usual purpose of the combustion is human inhalation of the byproducts, except when the combusting material contains no tobacco, other weed or plant, 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 and marijuana smoke, but specifically excludes vapors from electronic smoking devices.

SMOKING. Engaging in an act that generates smoke, such as, for example, the possession of a lighted tobacco product, lighted tobacco paraphernalia, or any other lighted weed or plant, including a lighted pipe, lighted hookah pipe, a lighted cigar, or a lighted cigarette of any kind; or the lighting of a pipe, a hookah pipe, a cigar, or a cigarette of any kind.

TOBACCO PARAPHERNALIA. Cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the smoking, preparation, storing, or consumption of tobacco products.

TOBACCO PRODUCT. Any substance containing tobacco leaf, including but not limited to, cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco.

UNENCLOSED AREA. Any area that is not an enclosed area.

UNIT. 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 long-term health care facility, assisted living facility, hospital and a room in a homeless shelter. UNIT includes an existing unit and a new unit.

(Ord. No. 2014-006 § 1)

A. Smoking in a common area, other than in a designated smoking area established pursuant to Section 9.11.215, is prohibited and a violation of this Subchapter.

B. Smoking in a new unit or existing unit, as set forth in Sections 9.11.225, 9.11.230 and 9.11.240, is prohibited and a violation of this Subchapter.

C. Smoking in a designated nonsmoking unit is prohibited and a violation of this Subchapter.

D. Smoking in an exclusive-use unenclosed area, such as, for example, a private balcony, porch, deck or patio, as set forth in Sections 9.11.220, 9.11.225, 9.11.230 and 9.11.240, is prohibited and a violation of this Subchapter.

E. Smoking in an unenclosed area of a multi-unit residence within twenty-five (25) feet in any direction of any doorway, window, opening, or other vent into an enclosed area that is a nonsmoking area, as set forth in Section 9.11.220.A, is prohibited and a violation of this Subchapter.

F. Smoking in an unenclosed area of adjacent property within twenty-five (25) feet in any direction of any doorway, window, opening, or other vent into an enclosed area that is a nonsmoking area, as set forth in Section 9.11.220.B, is prohibited and a violation of this Subchapter.

G. Smoking in any nonsmoking area is prohibited and a violation of this Subchapter.

(Ord. No. 2014-006 § 1)

A. Smoking is prohibited in all common areas, pursuant to Section 9.11.210.A, except that a person with legal control over a common area, such as, for example, a landlord or HOA Board, may designate a portion of the common area as a designated smoking area provided that at all times the designated smoking area complies with Section 9.11.215.B below.

B. A designated smoking area:

1. Must be an unenclosed area.

2. Must be located at least twenty-five (25) feet from any enclosed area that is a nonsmoking area. A person with legal control over a common area in which a designated smoking area has been established shall modify, relocate or eliminate that designated smoking area so as to maintain compliance with the requirements of this Section 9.11.215.B as laws change, as binding agreements are created, and as nonsmoking areas on adjacent property are established.

3. Must be at least twenty-five (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.

4. Must be no more than ten percent (10%) of the total unenclosed area of the multi-unit residence for which it is established.

5. Must have a clearly marked perimeter.

6. Must be identified by conspicuous signs.

C. No person with legal control over a common area in which smoking is prohibited by this Subchapter 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.

D. Clear and unambiguous "No Smoking" signs shall be posted in sufficient numbers and locations to make common areas where smoking is prohibited by this Subchapter or other law obvious to a reasonable person. The signs shall have letters of no less than one inch in height or contain the international "No Smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle crossed by a red bar). 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 Subchapter.

(Ord. No. 2014-006 § 1)

A. Smoking is prohibited in unenclosed areas of a multi-unit residence, including balconies, porches, decks, and patios, within twenty-five (25) feet in any direction of any doorway, window, opening, or other vent into an enclosed area that is a nonsmoking area, pursuant to Section 9.11.210.E.

B. Smoking is prohibited in unenclosed areas of adjacent property within twenty-five (25) feet in any direction of any doorway, window, opening, or other vent into an enclosed area that is a nonsmoking area, pursuant to Section 9.11.210.F.

C. Smoking is prohibited in all exclusive-use unenclosed areas associated with a unit, such as, for example, a private balcony, porch, deck, or patio, pursuant to Section 9.11.210.D.

(Ord. No. 2014-006 § 1)

A. All new units of a multi-unit residence, including any associated exclusive-use enclosed areas or unenclosed areas, such as, for example, a private balcony, porch, deck, or patio, are hereby designated nonsmoking units.

B. Smoking in a designated nonsmoking unit is a violation of this Subchapter, as provided in Section 9.11.210.

(Ord. No. 2014-006 § 1)

A. All existing units of a rental complex, including any associated exclusive-use enclosed areas or unenclosed areas, such as, for example, a private balcony, porch, deck, or patio, are hereby designated nonsmoking units as of May 26, 2016.

B. Prior to the effective date of a new or amended lease, or at least six (6) months prior to May 26, 2016, whichever occurs earlier, a landlord shall provide each tenant with:

1. A written notice clearly stating that all units, including the tenant's, unit, are designated nonsmoking units and that smoking in a unit shall be prohibited as of May 26, 2016; and

2. A copy of this Subchapter.

(Ord. No. 2014-006 § 1)

A. Every lease or other rental agreement for the occupancy of a unit in a rental complex, including new units and existing units, entered into, renewed, or continued month-to-month after November 26, 2014, shall include the provisions set forth in Section 9.11.235.B below on the earliest possible date such lease or other rental agreement may be amended in accordance with applicable law, including providing the minimum legal notice.

B. Every lease or other rental agreement for the occupancy of a unit in a rental complex, including new units and existing units, entered into, renewed, or continued month-to-month after November 26, 2014, shall be amended to include the following provisions:

1. A clause providing that as of May 26, 2016, or an earlier date if the landlord so determines, it is a material breach of the lease or other rental agreement to allow or engage in smoking in the unit. Such clause shall be substantially consistent with the following: "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 as of May 26, 2016 [or an earlier date if the Landlord so determines]."

2. A clause providing that it is a material breach of the lease or other rental 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 other than a designated smoking area. Such clause shall be substantially consistent with the following: "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 lease or other rental 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. Such clause shall be substantially consistent with the following: "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 rental complex as to the smoking provisions of the lease or other rental agreement. Such clause shall be substantially consistent with the following: "Other occupants of the property are express third-party beneficiaries of those provisions in this agreement that concern smoking. As such, other occupants of the property may seek to 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 Sections 9.11.235.A and 9.11.235.B above, the clauses required by those subsections shall be implied and incorporated by law into every lease or other rental agreement to which Sections 9.11.235.A and 9.11.235.B apply and shall become effective as of the earliest possible date on which the landlord could have made the insertions pursuant to Sections 9.11.235.A and 9.11.235.B.

D. A tenant who breaches a smoking provision of a lease or other rental agreement for the occupancy of a unit in a rental complex, 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 rental complex who is exposed to smoke or who suffers damages as a result of the breach.

E. This Subchapter shall not create additional liability in 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 rental complex if the landlord has fully complied with this Section and Section 9.11.230.

F. Failure to enforce any smoking provision required by this Subchapter 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. 2014-006 § 1)

A. All existing units of a common interest complex, including any associated exclusive-use enclosed areas or unenclosed areas, such as, for example, a private balcony, porch, deck, or patio, are hereby designated nonsmoking units as of May 26, 2016.

B. At least six (6) months before May 26, 2016, an HOA Board shall provide each tenant with:

1. A written notice clearly stating that all units, including the homeowner's unit, are designated nonsmoking units and that smoking in a unit shall be prohibited as of May 26, 2016; and

2. A copy of this Subchapter.

(Ord. No. 2014-006 § 1)

A. All existing rules and regulations for a common interest complex shall include the provisions set forth in Section 9.11.245.B below on the earliest possible date such rules and regulations may be amended in accordance with applicable law, including providing the minimum legal notice.

B. All existing rules and regulations for a common interest complex shall be amended to include the following provisions:

1. A clause providing that as of May 26, 2016, or an earlier date if the HOA Board so determines, it is a violation of the rules and regulations to allow or engage in smoking in a unit. Such clause shall be substantially consistent with the following: "It is a violation of these rules and regulations for a homeowner or any other person subject to the control of the homeowner or present by invitation or permission of the homeowner to engage in smoking in the unit as of May 26, 2016 [or an earlier date if the HOA Board so determines]."

2. A clause providing that it is a violation of the rules and regulations for the homeowner or any other person subject to the control of the homeowner or present by invitation or permission of the homeowner to engage in smoking in any common area of the property other than a designated smoking area. Such clause shall be substantially consistent with the following: "It is a violation of these rules and regulations for a homeowner or any other person subject to the control of the homeowner or present by invitation or permission of the homeowner 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 violation of the rules and regulations for homeowner or any other person subject to the control of the homeowner or present by invitation or permission of the homeowner to violate any law regulating smoking while anywhere on the property. Such clause shall be substantially consistent with the following: "It is a violation of these rules and regulations for a homeowner or any other person subject to the control of the homeowner or present by invitation or permission of the homeowner to violate any law regulating smoking while anywhere on the property."

C. Whether or not an HOA Board complies with Sections 9.11.245.A and 9.11.245.B above, the clauses required by those subsections shall be implied and incorporated by law into all rules and regulations of a common interest complex to which Sections 9.11.245.A and 9.11.245.B apply and shall become effective as of the earliest possible date on which the HOA Board could have amended such rules and regulations pursuant to Sections 9.11.245.A and 9.11.245.B.

D. A homeowner who violates a smoking provision of the rules and regulations for a common interest complex, or who knowingly permits any other person subject to the control of the homeowner or present by invitation or permission of the homeowner, shall be liable for the violation to:

1. The HOA Board; and

2. Any occupant of the common interest complex who is exposed to smoke or who suffers damages as a result of the violation.

E. This Subchapter shall not create additional liability in an HOA Board to any person for a homeowner's violation of any smoking provision in the rules and regulations for a common interest complex if the HOA Board has fully complied with this Section and Section 9.11.240.

F. Failure to enforce any smoking provision required by this Subchapter shall not affect the right to enforce such provision in the future.

(Ord. No. 2014-006 § 1)

The provisions of this Subchapter are restrictive only and establish no new rights for a person who engages in smoking. Notwithstanding:

A. Any provision of this Subchapter or other provisions of this Code;

B. Any failure by any person to restrict smoking under this Subchapter; 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.

(Ord. No. 2014-006 § 1)

Notwithstanding the penalties and enforcement provisions set forth in Section 9.11.130 of this Chapter, for a violation of this Subchapter 9.11.200, et seq., the following provisions shall apply:

A. Except as otherwise provided in Section 9.11.255.B below, a violation of this Subchapter is not a misdemeanor or an infraction. The enforcement of this Subchapter shall be by the private parties involved.

B. A violation of Sections 9.11.215.B, 9.11.215.C, 9.11.215.D, 9.11.230.B, 9.11.235.A, 9.11.235.B, 9.11.240.B, 9.11.245.A and 9.11.245.B of this Subchapter:

1. In the discretion of the City Attorney, may be prosecuted as an infraction or misdemeanor. The penalties for a violation of the aforementioned Sections shall be consistent with the penalties set forth in Sections 1.01.040 and 1.01.045 of this Code, but in no event shall such penalties exceed the maximum penalties permitted under State law;

2. Is subject to a civil action brought by the City Attorney, punishable by a civil fine not less than one hundred dollars ($100) and not exceeding one thousand dollars ($1,000) per violation; and

3. Is subject to enforcement through the imposition of an administrative fine as set forth in Chapter 1.02 of this Code.

C. Under no circumstances shall the City have any responsibility or obligation to enforce or seek any legal redress, civil or criminal, for any violation of this Subchapter. Nothing in this Subchapter shall create a right of action in any person against the City of Culver City or its agents to compel public enforcement of this Subchapter against private parties.

D. The remedies provided by this Section 9.11.255 and Section 9.11.260 are cumulative and in addition to any other remedies available at law or in equity.

E. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this Subchapter shall also constitute a violation of this Subchapter.

F. Any violation of this Subchapter is hereby declared to be a public nuisance.

G. No person shall intimidate, harass, or otherwise retaliate against any person who seeks compliance with this Subchapter. Moreover, no person shall intentionally or recklessly expose another person to smoke in response to that person's effort to achieve compliance with this Subchapter.

H. Any person acting for the interests of itself, its members, or the general public may bring a civil action to enforce this Subchapter in accordance with the provisions in Section 9.11.250 below.

(Ord. No. 2014-006 § 1)

A. Any person, including a legal entity or organization or a government agency, acting for the interests of itself, its members, or the general public may bring a civil action to enforce this Subchapter. Upon proof of a violation, a court shall award the following:

1. Damages in the amount of either:

a. Upon proof, actual damages; or

b. With insufficient or no proof of damages, five hundred dollars ($500) for each violation of this Subchapter (hereinafter "statutory damages"). Each day of a continuing violation shall constitute a separate violation. Notwithstanding any other provision of this Subchapter, no person suing on behalf of the general public shall recover statutory damages based upon a violation of this Subchapter if a previous claim brought on behalf of the general public by another person for statutory damages and based upon the same violation has been adjudicated, whether or not the person bringing the subsequent claim was a party to the prior adjudication.

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

B. The person may also bring a civil action to enforce this Subchapter by way of a conditional judgment or an injunction. Upon proof of a violation, a court shall issue a conditional judgment or an injunction.

C. Notwithstanding any legal or equitable bar against a person seeking relief on its own behalf, a person may bring an action to enforce this Subchapter solely on behalf of the general public. When a person brings an action solely on behalf of the general public, nothing about such an action shall act to preclude or bar the person from bringing a subsequent action based upon the same facts but seeking relief on his, her or its own behalf.

D. Nothing in this Subchapter prohibits a person from bringing a civil action in small claims court to enforce this Subchapter, so long as the amount in demand and the type of relief sought are within the jurisdictional requirements of that court.

(Ord. No. 2014-006 § 1)

In the event of any conflict between this Subchapter and any other provision of this Code, including Subchapter 9.11.100, et seq., this Subchapter shall control.

(Ord. No. 2014-006 § 1)