Firebaugh Municipal Code § 3-12 Prohibition of Use, Sale, and Distribution of Tobacco Products on City Property

[Ord. #06-07, S11; amended 5-20-2019 by Ord. No. 19-02]

For the purposes of this article, the following definitions shall govern unless the context clearly requires otherwise:

ADJACENT UNENCLOSED PROPERTY

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

CANNABIS

The same as defined in Health and Safety Code Section 11018, as all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It does not include either of the following:

a.

Industrial hemp, as defined in Section 11018.5;[1] or

b.

The weight of any other ingredient combined with cannabis to prepare topical or oral administrations, food, drink, or other product.

CITY PROPERTY

Property owned by the City of Firebaugh, whether indoors or outdoors, including but not limited to, City-owned buildings, parks, playgrounds, plazas, streets, and sidewalks.

COMMON AREA

Every enclosed area and every unenclosed area in a multiunit residence that residents of more than one unit are entitled to enter or use, including, without limitation, 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.

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 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 that serves the same purpose.

ENCLOSED AREA

An area in which outside air cannot circulate freely to all parts, including an area that has:

a.

Any type of overhead cover and at least three walls or other physical boundaries of any height; or

b.

Four walls or other vertical boundaries that exceed six feet in height.

EXISTING UNIT

A unit that is not a new unit.

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, except that "landlord" does not include a tenant who sublets a unit (e.g., a sublessor).

MULTIUNIT RESIDENCE

Property containing two or more units, including, but not limited to, duplexes, apartment buildings, condominium complexes, senior and assisted living facilities, and long-term healthcare facilities. "Multiunit residence" does not include the following:

a.

A hotel or motel that meets the requirements of California Civil Code Section 1940, subdivision (b)(2);

b.

A mobile home park;

c.

A campground;

d.

A marina or port;

e.

A single-family home, except if used as a child-care or healthcare facility subject to licensing requirements; or

f.

A single-family home with a detached or attached in-law or second unit permitted pursuant to California Government Code Sections 65852.1, 65852.2 or Chapter 25, of the City's Zoning Ordinance, except if the single-family home or in-law/second unit is used as a child-care or healthcare facility subject to licensing requirements.

NEW UNIT

A unit that is issued a certificate of occupancy after July 1, 2019.

NON-SALE DISTRIBUTION

To give a tobacco product to a member of the general public or a consumer at no cost or at nominal cost; or to give proxies for tobacco products such as coupons, coupon offers, or rebate offers for a tobacco product to a member of the general public or a consumer at no cost or at nominal cost. Distribution of tobacco products, coupons, coupon offers, or rebate offers in connection with the full value bona fide sale of a tobacco product shall not constitute "non-sale distribution."

NONSMOKING AREA

Any enclosed area or unenclosed area in which smoking is prohibited by:

a.

This article or other law;

b.

A binding agreement relating to the ownership, occupancy, or use of real property; or

c.

A designated person with legal control over the area.

PERSON

Any natural person, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee, or any other legal entity.

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, except when the combusting or vaporizing material contains no tobacco 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, electronic smoking device vapors, cannabis smoke, and smoke released into the air by combustion, electrical ignition, or vaporization of any illegal drugs.

SMOKE-FREE RESIDENCE

A multiunit residence that complies with the requirements of this article as of July 1, 2019.

SMOKING

Inhaling, exhaling, burning, or carrying any lighted, heated, or ignited cigar, cigarette, cigarillo, pipe, hookah, electronic smoking device, or any plant product intended for human inhalation.

TOBACCO PARAPHERNALIA

Any item designed or marketed for the consumption, use, or preparation of tobacco products.

TOBACCO PRODUCT

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, cigarettes, cigars, little cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco; 2) any product or formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body; and 3) any electronic device that delivers nicotine or other substances to the person inhaling from the device, including, but not limited to, an electronic cigarette, electronic cigar, electronic pipe, or electronic hookah. "Tobacco product" does not include any product specifically approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where such product is marketed and sold solely for such an approved purpose.

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 senior facility; a room in a long-term health care facility, assisted living facility, or hospital; a room in a hotel or motel; a dormitory room; a room in a single-room-occupancy (SRO) facility; a room in a homeless shelter; a mobile home; a camper vehicle or tent; a single-family home; and an in-law or second unit. "Unit" includes, without limitation, a new unit.

[1]

Editor's Note: See Health and Safety Code § 11018.5.

[Amended 6-7-2021 by Ord. No. 21-03]

a. No person shall smoke or use a tobacco product on City property, including but not limited to: City parks, playgrounds, plazas, recreational areas and facilities, public restrooms, parking garages, within 25 feet of any bus stop, or on any public street or sidewalk within school 25 feet of any K-12 school property.

b. Smoking is otherwise permitted on City-owned streets open to normal traffic and on adjacent sidewalks. When City-owned streets and adjacent sidewalks are used for events including, but not limited to, a farmers' market or parade, smoking and tobacco product use is prohibited on such streets and sidewalks during the event, including set-up and tear-down.

c. "No smoking" signs, with letters of no less than one inch in height or the international "No smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it) shall be clearly, sufficiently and conspicuously posted by the City Manager or his or her designee on City property where smoking and tobacco products are prohibited by this chapter. Signage must include the City phone number where complaints can be directed. Notwithstanding this provision, the presence or absence of signs shall not be a defense to the violation of any provision of this Article 3-12.

d. No person shall dispose of smoking waste or tobacco-product waste on City property on which smoking or tobacco product use is prohibited, except in a designated waste disposal container.

e. Consistent with Health and Safety Code Section 11362.3, Subdivisions (a)(1) and (2), no person shall smoke or ingest cannabis in any public place within the City nor shall they smoke cannabis anywhere smoking tobacco is prohibited.

a. No person shall sell, offer for sale, or exchange, or offer to exchange for any form of consideration tobacco products on City property.

b. No person shall engage in the non-sale distribution of any tobacco product on City property.

a. The provisions of this article are restrictive only and establish no new rights for a person who engages in smoking. Notwithstanding 1) any provision of this article or of this Code, 2) any failure by any person to restrict smoking under this article, or 3) 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, personal injury or other legal or equitable principles.

b. Nonconsensual exposure to smoke occurring on or drifting into residential property is a nuisance, and the uninvited presence of smoke on residential property is a nuisance and a trespass.

a. Smoking is prohibited in all units in a multiunit residence, including any associated exclusive-use enclosed areas or unenclosed areas, such as, for example, a private balcony, porch, deck, or patio. Smoking in any unit in a multiunit residence, on or after July 1, 2019, is a violation of this article.

b. No smoking shall be permitted in common areas of multiunit residences except in designated smoking areas.

1. Smoking in a common area on or after July 1, 2019, other than in a designated smoking area established pursuant to paragraph 2 below, is a violation of this article.

2. A person with legal control over a common area, such as, for example, a landlord or homeowners' association, may designate a portion of the common area as a smoking area provided the designated smoking area complies with Subsection b3 below at all times.

3. A designated smoking area:

(a) Must be an unenclosed area;

(b) 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;

(c) 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 smoking designation. If an event occurs that changes a nonsmoking area, a person with legal control over a designated smoking area within less than 25 feet of that nonsmoking area must modify, relocate, or eliminate that designated smoking area so as to maintain compliance with the requirements of Subsection b3(b) above. In the case of a nonsmoking area on a neighboring property established only by private agreement or designation and not by this article or other law, it shall not be a violation of this article for a person with legal control to designate a smoking area within 25 feet of the nonsmoking area unless they have actual knowledge of, or a reasonable person would know of, the private agreement or designation. It shall not be a violation of this article for a person to smoke within a nonsmoking area if the area is erroneously designated as a smoking area unless a reasonable person would know of the error;

(d) Must be no more than 10% of the total unenclosed area of the multiunit residence for which it is designated;

(e) Must have a clearly marked perimeter;

(f) Must be identified by conspicuous signs; and

(g) Must not overlap any enclosed or unenclosed area where smoking is prohibited by this article or other law.

4. No person with legal control over a common area in which smoking is prohibited by this article 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 a common area in which smoking is prohibited by this article or other law.

c. Nonsmoking buffer zones. Smoking is prohibited in adjacent unenclosed property within 25 feet in any direction of any doorway, window, opening, or other vent into an enclosed area in a multiunit residence.

d. No person with legal control over any nonsmoking area shall permit smoking in the nonsmoking area.

a. Every lease or other rental agreement for the occupancy of a unit in a multiunit residence, entered into, renewed, or continued month-to-month after July 1, 2019, shall include the provisions set forth in Subsection b below on the earliest possible date when such an amendment is allowable by law with the minimum legal notice.

b. Every lease or other rental agreement for the occupancy of a new unit in a multiunit residence entered into, or in the case of an existing unit, entered into, amended, renewed or continued month-to-month, after July 1, 2019, shall include the following provisions:

1. A clause providing that smoking is prohibited in the new unit, including exclusive-use areas such as balconies, porches, or patios, and in any common area other than a designated smoking area; and

2. A clause expressly conveying third-party-beneficiary status to all occupants of the multiunit residence solely against the violator(s) of the smoking provisions of the lease or other rental agreement.

c. Regardless of whether a landlord complies with Subsection b above, the clauses required by that subsection shall be implied and incorporated by law into every agreement to which paragraph applies and shall become effective as of the earliest possible date on which the landlord could have made the insertions pursuant to Subsection b.

d. A tenant who breaches a smoking provision of a lease or other rental agreement for the occupancy of a unit in a multiunit residence, or who knowingly permits any other person subject to the control of the tenant or present by invitation or permission of the tenant, shall be liable for the breach to 1) the landlord and 2) any occupant of the multiunit residence who is exposed to smoke or who suffers damages as a result of the breach.

e. This article shall not create additional liability for a landlord to any person for a tenant's breach of any smoking provision in a lease or other rental agreement for the occupancy of a unit in a multiunit residence if the landlord has fully complied with this article.

f. Failure to enforce any smoking provision required by this article 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.

a. Rental units: As of July 1, 2019, every landlord of a unit in a multiunit residence shall provide existing and prospective tenants with written notice clearly stating:

1. Smoking is prohibited in all units, including any associated exclusive-use enclosed area or unenclosed area, such as, for example, a private balcony, porch, deck, or patio, as of July 1, 2019; and

2. Smoking is prohibited in all common areas, except for specifically designated smoking areas, as of July 1, 2019.

b. Unit sales: As of July 1, 2019, every seller of a unit in a multiunit residence shall provide prospective buyers with written notice clearly stating:

1. All units are designated nonsmoking units and smoking shall be illegal in all units, including any associated exclusive-use enclosed area or unenclosed area, such as, for example, a private balcony, porch, deck, or patio, as of July 1, 2019; and

2. Smoking in all common areas, except for specifically designated smoking areas, will be a violation of this article as of July 1, 2019.

c. Smoke-free residences are exempt from the noticing requirements of Subsections a and b above.

d. Clear and unambiguous "No smoking" signs shall be posted in sufficient numbers and locations in common areas where smoking is prohibited by this article or other law. In addition, signs shall be posted in sufficient numbers and locations in the multiunit residence to indicate that smoking is prohibited in all units. 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 article. "No smoking" signs are not required inside or on doorways of units.

California Health and Safety Code Sections 11362.3(a)(2) and 11362.79(a), as may be amended or renumbered from time to time, prohibit smoking cannabis wherever smoking tobacco is prohibited. The prohibitions on smoking in multiunit residences found in this article expressly apply to the smoking of cannabis.

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

a. Violations of this article are subject to a civil action brought by the District Attorney or the City Attorney, and are punishable by:

1. A fine of not less than $100 and not exceeding $250 for a first violation in any sixty-month period; or

2. A fine of not less than $250 and not exceeding $500 for a second violation in any sixty-month period; or

3. A fine of not less than $500 and not exceeding $1,000 for a third or subsequent violation in any sixty-month period.

b. Violations of any provision of this article are infractions. Enforcement of the penal provision of this article shall be implemented by the City Manager or his designee. Any peace officer or code enforcement officials also may enforce this article.

c. No person shall intimidate, harass, or otherwise retaliate against any person who seeks to attain compliance with this article. Moreover, no person shall intentionally or recklessly expose another person to secondhand smoke in response to that person's effort to achieve compliance with this section. A violation of this section constitutes a misdemeanor.

d. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this article shall constitute an infraction.

e. A violation of this article is hereby declared to be a public nuisance.

f. In addition to other remedies provided by this article or otherwise available at law or in equity, any violation of this article may be remedies by a civil action brought by the City Attorney, including, without limitation, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.

It is the intent of the City Council of the City of Firebaugh to supplement applicable state and federal law and not to duplicate or contradict such law, and this article shall be construed consistently with that intention. If any section, subsection, subdivision, paragraph, sentence, clause, or phrase of this article, 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 article, or its application to any other person or circumstance. The City Council of the City of Firebaugh hereby declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause, or phrase hereof independently, irrespective of the fact that one or more other sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases hereof may be declared invalid or unenforceable.