Fresno Municipal Code Art. 20 Prohibition on Smoking in and Around Multiunit Rental Properties

(a) "Common Area" means every area of a multiunit rental property that residents of more than one unit are entitled to enter or use, including, but not limited to, halls, pathways, lobbies, courtyards, elevators, stairs, community rooms, playgrounds, gym facilities, swimming pools, parking garages, parking lots, grassy or landscaped areas, restrooms, laundry rooms, cooking areas, and eating areas.

(b) "Electronic smoking device" means any device that may be used to deliver any aerosolized or vaporized substance to the person inhaling from the device, including, but not limited to, an e-cigarette, e-cigar, vape pen, or e-hookah.

(c) "Enclosed area" means all space between a floor and a ceiling that is bounded by walls, doorways, or windows, whether open or closed, covering more than 50% of the combined surface area of the vertical planes constituting the perimeter of the area. A wall includes any retractable divider, garage door, or other physical barrier, whether temporary or permanent.

(d) "Exclusive Use Outdoor Area" means an area accessible only by the occupant of a unit, such as a private balcony, deck, porch, or patio.

(e) "Landlord" means any person or agent of a person who owns, manages, or is otherwise legally responsible for a unit in a multiunit rental property that is leased to a residential tenant. For purposes of this ordinance, a tenant who sublets their unit is not a landlord.

(f) "Multiunit rental property" means residential property containing two or more rental units where the majority of the units, whether rental or not, share at least one common wall with an adjacent unit.

(g) "Nonsmoking Area" means any area in which smoking is prohibited by:

(1) This Ordinance or other law; and

(2) binding agreement relating to ownership, occupancy, or use of rental property; or

(3) a person with legal control over the area.

(h) "Person" means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity, including government agencies.

(i) "Smoking" means:

(1) Inhaling, exhaling, or burning, any tobacco, nicotine, cannabis, or plant product, whether natural or synthetic; and

(2) carrying any lighted, heated, or activated tobacco, nicotine, or marijuana, or plant product, whether natural or synthetic, intended for inhalation; or

(3) using an "electronic smoking device."

(j) "Unit" means a residential rental unit in a multiunit rental property, excluding any associated exclusive use outdoor area.

(Added Ord. 2021-045, § 1, eff. 11-28-21)

(a) Effective January 1,2022, smoking is prohibited anywhere on the premises of a multiunit rental property, including units, common areas, and other outdoor areas.

(b) Notwithstanding subsection (a), smoking is permitted in designated smoking areas if they meet the following conditions:

(1) It is an exclusive use outdoor area; or

(2) It is an unenclosed enclosed area at least 20 feet from any:

(i) Outdoor recreation area such as a tennis court, swimming pool, or picnic area; or

(ii) Outdoor area primarily used by children such as a playground; or

(iii) Doorway, entryway into a unit or common area, ventilation system, window, or air conditioner unit.

(3) Designated smoking areas other than exclusive use outdoor areas must have a clearly marked perimeter, and be identified by conspicuous signs.

(c) No person with legal control over any nonsmoking area of a multiunit rental property shall permit smoking in the nonsmoking area, except as provided in subsection (b).

(d) No person with legal control over a common area in which smoking is prohibited by this Ordinance or other law shall permit the presence of ashtrays, ashcans, or other receptacles designed for or primarily used for disposal of smoking waste within the area.

(Added Ord. 2021-045, § 1, eff. 11-28-21)

(a) After the effective date of this Ordinance, every lease or other rental agreement for the occupancy of a unit in a multiunit rental property entered into, renewed, or continued month to month shall prohibit smoking as required by this Ordinance. The City shall provide a form to be attached to the lease and incorporated therein containing a copy of this Ordinance and setting forth the following conditions:

(1) A clause providing that as of January 1, 2022, it is a material breach of the agreement to smoke or allow smoking:

(i) In the unit, excluding exclusive use outdoor areas; and

(ii) In any common area of the multiunit rental property other than a designated smoking area.

(2) A clause providing that it is a material breach of the agreement for tenant to violate any law regulating smoking while anywhere on the property, or to allow any other person subject to the control of the tenant to engage in such behavior.

(3) A clause expressly conveying third-party beneficiary status to all occupants of the multiunit rental property as to the smoking provisions of the lease or other rental agreement.

(b) Whether or not a landlord complies with subsection (a) above, the clauses require by those subsections shall be implied and incorporated by law into every agreement to which subsection (a) applies, as well as to existing leases in effect, as of January 1, 2022.

(c) A tenant who breaches or allows any other person subject to control of the tenant to breach, a smoking provision of a lease or other rental agreement for the occupancy of a unit in a multiunit rental property shall be liable for the breach to (1) the landlord; and (2) any occupant of the multiunit rental property who is exposed to smoke or who suffers damage as a result of the breach. This Ordinance does not create a private right of action for a tenant against a landlord for any damages the tenant may suffer due to another tenant's breach of any smoking provision in a lease or other rental agreement, so long as the landlord has fully complied with the terms of this Ordinance.

(d) Failure to enforce any smoking provision required by this Ordinance 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.

(Added Ord. 2021-045, § 1, eff. 11-28-21)

The following requirements apply to multiunit rental properties other than units in a common interest development that are not being rented:

(a) On or before January 1, 2022, every landlord shall deliver to each unit a copy of this Ordinance and a written notice clearly stating:

(1) All units are designated nonsmoking units and smoking is prohibited in a unit, excluding any exclusive use outdoor areas, as of January 1, 2022; and

(2) Smoking in all common areas or outdoor areas, except for specifically designated smoking areas, is a violation of this Ordinance as of January 1, 2022.

(b) As of the effective date, every landlord shall provide prospective tenants with written notice clearly stating that:

(1) Smoking is prohibited in units, excluding any exclusive use outdoor area, as of January 1, 2022; and

(2) Smoking is prohibited in all common areas and outdoor areas, except for specifically designated smoking areas, as of January 1, 2022.

(c) The city shall prepare a form which landlords may use to comply with sections (a) and (b) above.

(d) As of January 1, 2022, the person, or persons with legal control over common areas shall post and maintain clear and unambiguous "No Smoking" signs at entrances and exits, in common areas, and in conspicuous places adjoining the property grounds. In addition, as of January 1,2022, the person, or persons with legal control over the multiunit rental property shall post and maintain sings in sufficient numbers and locations in the multiunit rental property to indicate that smoking is prohibited in all units. The absence of signs shall not be a defense to a violation of any provision of this Ordinance. "No Smoking" signs are not required inside or on doorways of units. This subsection (c) shall not apply to multiunit rental properties with three or fewer units.

(e) Landlords with knowledge of violations shall take reasonable steps to investigate and enforce the regulations, including a written notice to the resident of the landlord's knowledge of the violation, a request to cease the violation, and the course of action to be taken if the violation is not corrected.

(Added Ord. 2021-045, § 1, eff. 11-28-21)

(a) The provisions of this Ordinance shall be liberally construed to protect the public health to the maximum effect possible. Except as otherwise stated herein, nothing in this Ordinance shall be interpreted to limit any person's legal rights in nuisance, trespass, property damage, and personal injury or other legal or equitable principles.

(b) Any violation of this Ordinance is hereby declared to be a public nuisance.

(c) Nonconsensual exposure to smoke from smoking occurring or drifting into residential property is a nuisance.

(Added Ord. 2021-045, § 1, eff. 11-28-21)

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

(b) Every responsible party owning, occupying, renting, possessing, or having charge or control over a multifamily unit is required to manage and control that unit in a manner so as not to violate the provisions of this Ordinance, and to supervise anyone using or occupying the property, with or without consent of the owner, consistent with this Ordinance. Every responsible party shall be jointly and severally liable for violations thereof regardless of any contract or agreement among them or with any third party regarding the property.

(c) Any person violating the provisions of this Ordinance may be guilty of an infraction. The city may, at its discretion, issue an administrative citation for any violation of this ordinance. In the alternative, the city may, at its discretion, issue community service as an alternative to a fine. The penalty to be assessed for each violation shall be as follows:

(1) First violation, $250.

(2) Second violation within one year of the first violation, $500

(3) Third and each subsequent violation within a year of the first violation, $1,000.

Any person receiving an administrative citation for violation of this article shall have the right to appeal pursuant to Article 4, chapter 1 of this code. In addition, the City Attorney may institute a civil action to ensure compliance with this Ordinance, including an action for injunctive relief and/or to recover damages and attorney fees and costs incurred as a result of any violation.

(d) No person shall intimidate, harass, or otherwise retaliate against any person who seeks compliance with this Ordinance. Residents of the multiunit rental property in violation of this subsection may be subject to community service as an alternative to a civil fine.

(e) Any person may bring a civil action to enforce this Ordinance to prevent future violations and may sue to recover actual or statutory damages, including court costs, and attorney's fees. However, this Ordinance does not create a private right of action for a tenant against a landlord for any damages the tenant may suffer due to another tenant's breach of any smoking provision in a lease or other rental agreement, so long as the landlord has fully complied with the terms of this Ordinance.

(f) Violations of this ordinance may be reported to the city via the city's internet or app based reporting platform such as FresGo, or via telephone to the city's Code Enforcement Department. The city shall ensure these resources are available for reporting as of January 1, 2022.

(Added Ord. 2021-045, § 1, eff. 11-28-21)

It is the intent of the city to supplement applicable state and federal law and not to duplicate or contradict such law and this ordinance shall be construed consistently with that intention. If any provision of this article is held to be unconstitutional or otherwise invalid by a court of competent jurisdiction, such invalidity shall not affect any other provisions of this ordinance.

(Added Ord. 2021-045, § 1, eff. 11-28-21)