Los Altos Municipal Code Ch. 6.28 Smoke-Free Environments

Editor's note— Ord. No. 2018-442, § 1, adopted March 27, 2018, repealed Ch. 6.28 in its entirety, and enacted a new Ch. 2.28, as set out herein. The former Ch. 2.28, §§ 6.28.010—6.28.040, pertained to Smoke-Free Recreation Areas and derived from Ord. No. 2011-372, § 1, adopted August 23, 2011; and Ord. No. 2017-432, § 1, adopted August 22, 2017.

The following words and phrases, whenever used in this chapter shall have the meanings defined in this section unless the context clearly requires otherwise:

A.

"Bar" or "tavern" means any business licensed or required to be licensed by the Department of Alcoholic Beverage Control for alcoholic beverage on-sale privileged as a "public premise" as defined by California Business and Professions Code section 23039.

B.

"Business" means any sole proprietorship, partnership, joint venture, corporation, associations, landlord, or other entity formed for profit-making purposes.

C.

"Cannabis" means 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. For purposes of this chapter, the term "cannabis" shall include "cannabis," "cannabis concentrate" and "cannabis products" as those terms are defined by California Business and Professions Code section 26001, and specifically includes hashish, dabs, or similarly mildly euphorogenic and hallucinogenic drugs are prepared from the plant genus Cannabis.

D.

"City" means the City of Los Altos.

E.

"Civic Center Campus" means the publicly owned property bounded by San Antonio Road and Hillview Avenue, including the Hillview Community Center, Los Altos Library, Los Altos Police Department, Los Altos History Museum, Los Altos Apricot Orchard, Los Altos City Hall, and all recreation and parking areas on this property.

F.

"Dining area" means any area, including streets and sidewalks, that is available to or customarily used by the general public or an employee, and which is designed, established, or regularly used for consuming food or drink.

G.

"Downtown Triangle" means the geographic area bordered by W. Edith Avenue, S. San Antonio Road, and Foothill Expressway and includes streets, sidewalks, and public plazas.

H.

"Electronic smoking device" means an electronic or battery-operated device that can be used to deliver an inhaled dose of nicotine, cannabis, 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, vape pen, or any other product name or descriptor.

I.

"Employee" means any person who is employed or retained as an independent contractor by any employer in consideration for direct or indirect monetary wages or profit, or any person who volunteers his or her services for an employer.

J.

"Employer" means any business or nonprofit entity that retains the services of one or more employees.

K.

"Enclosed area" means an area in which outside air cannot circulate freely to all parts of the area, and includes an area that has

Any type of overhead cover whether or not that cover includes vents or other openings and at least three walls or other vertical constraint to airflow including, but not limited to, vegetation of any height, whether or not those boundaries include vents or other openings; or

Four (4) walls or other vertical constraints to airflow including, but not limited to vegetation that exceeds six feet in height, whether or not those boundaries include vents or other openings.

L.

"Nonprofit entity" means 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 or purposes of the entity and not to private gain. A government agency is not a "nonprofit entity" within the meaning of this chapter.

M.

"No smoking sign" means a sign containing the words "no smoking" or the international "no smoking" symbol (consisting of a pictorial representation of a burning cigarette in a red circle or red heart with a red bar across it).

N.

"Open space" means any lot or area of land or water essentially unimproved and set aside, dedicated, designated or reserved for public or private use or enjoyment, or for the use and enjoyment of owners and occupants of land adjoining or neighboring such open space.

O.

"Person" means any natural person, individual, partnership, employer, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity.

P.

"Place of employment" means any area under the legal or de facto control of an employer that an employee or the general public may have cause to enter in the normal course of operation, regardless of the hours of operation, including, but not limited to, vehicles used in employment or for business purposes, taxis, employee cafeterias, lounges and restrooms, hotels, conference and banquet rooms - or other dining areas, warehouses, long-term health care facilities, and lobbies and hallways. A private residence is not a "place of employment" unless it is used as a day services center or a child care, health care, board and care, or community foster care facility, licensed by the State of California.

Q.

"Public event" means any event which is open to and may be attended by the general public, including but not limited to such events as farmers' markets, parades, craft fairs, festivals, concerts, performances or other exhibitions, regardless of any fee or age requirement.

R.

"Public place" means any area publicly or privately owned, to which the public has access by right or by invitation, expressed or implied, whether by payment of money or not and regardless of any age requirement. Examples of "public places" include but are not limited to places of business or employment, restaurants, restaurant/bar combinations, bars, outdoor dining or seating areas, offices, waiting rooms, entryways and exits, lobbies, service areas, theatres, museums, hotels, recreation areas, sports arenas, parks, city facilities, plazas, parking lots and garages, and open spaces.

S.

"Reasonable distance" means a distance of twenty-five (25) feet in any direction from an area in which smoking is prohibited.

T.

"Recreational area" means any area that is publicly owned, controlled, or used by the city and open to the general public for recreational purposes, regardless of any fee or age requirement. The term "recreational

area" includes, but is not limited to, open spaces, parks, picnic areas, playgrounds, sports fields, golf courses, walking paths, gardens, hiking trails, bike paths, riding trails, swimming pools, roller- and ice- skating rinks, and skateboard parks. For the purposes of this chapter, "recreational area" also includes any associated parking lot or other area designated or primarily used for parking vehicles of persons accessing a recreational area.

U.

"Service area" means any publicly or privately-owned area, including streets and sidewalks, that is designed to be used or is regularly used by one or more persons to receive a service, wait to receive a service, or to make a transaction, whether or not such service or transaction includes the exchange of money. The term "service area" includes but is not limited to areas including or adjacent to information kiosks, automatic teller machines (ATMs), ticket lines, bus stops or shelters, mobile vendor lines, or cab stands.

V.

"Smoke" means 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 or cannabis or other controlled substances 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, and cannabis smoke or vapors.

W.

"Smoking" means inhaling, exhaling, emitting, burning, possessing, holding, or carrying any lighted, heated, or ignited cigar, cigarette, cigarillo, pipe, hookah, electronic smoking device, any other smoke or vapor inhalation device, lighted smoking equipment, or accessory used for burning or vaporizing any tobacco product, cannabis, plant, or other combustible substance. "Smoking" includes smoking cannabis or marijuana for medical purposes.

X.

"Sports arena" means enclosed or unenclosed sports pavilions, gymnasiums, health spas, swimming pools, roller and ice rinks, baseball stadiums, bowling alleys and other similar places where members of the general public assemble either to engage in physical exercise, participate in athletic competition, or witness sports events.

Y.

"Tobacco product" means:

Any substance 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, chewing tobacco, pipe tobacco, snuff; and

Any electronic smoking device; and

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, including but not limited to cartridges for electronic cigarettes or electronic smoking devices.

Notwithstanding any provision of subsections 1., 2., and 3. to the contrary, "tobacco product" includes any component, part, or accessory of a tobacco product, whether or not sold separately. "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 such product is marketed and sold solely for such an approved purpose.

Z.

"Unenclosed area" means any area that is not an enclosed area, defined in this section.

(Ord. No. 2018-442, § 1, 3-27-2018)

A.

Smoking is prohibited in the enclosed areas of the following places within the City of Los Altos:

Public places;

Places of employment in accordance with California Labor Code section 6404.5, as may be amended;

Other businesses that have a common or shared air space with an enclosed area in which smoking is prohibited by law, such as, without limitation, openings, cracks, air ventilation systems, doorways, hallways, and stairways. Notwithstanding any other provisions, the fact that smoke enters one enclosed area from another enclosed area is conclusive proof that the areas shared a common or shared air space; and

City-owned vehicles and facilities.

B.

Smoking is prohibited by this chapter in all enclosed places of employment exempted by the California smoke-free workplace law (Labor Code section 6404.5(e), as that section may be amended from time to time) except as provided below:

Smoking inside a tobacco shop is not prohibited by this subsection if (a) the tobacco shop does not sell edible products, including, for example, food, water, or drinks, or allow such products to be consumed on the premises; (b) the tobacco shop prohibits minors from entering the store at all times; and (c) the premises of the tobacco shop is an independent freestanding building unattached to any other building, establishment, or use. For the purposes of this exception, "tobacco shop" means any tobacco retailer that derives more than seventy-five (75) percent of gross sales receipts from the sale or exchange of tobacco products and tobacco paraphernalia.

Smoking in a theatrical production by the actors is not prohibited by this subsection if smoking is an integral part of the story and the use of a fake, prop, or special effect cannot reasonably convey the idea of smoking in an effective way to a reasonable member of the anticipated audience.

(Ord. No. 2018-442, § 1, 3-27-2018)

A.

Smoking is prohibited in the unenclosed areas of the following places within the City of Los Altos:

Recreational areas and associated parking areas;

Service areas;

Dining areas;

Bar or tavern areas;

Civic Center Campus;

Downtown Triangle;

a.

Exception. The prohibition in this subsection 6. shall not apply to the ten (10) city-owned parking plazas located within the Los Altos Downtown Triangle, provided that smoking permitted by this subparagraph a. may not occur within the reasonable distances required by Section 6.28.040 of this chapter.

The grounds of any building owned, leased, or controlled by the city, including service, corporation, or maintenance yards;

Public events.

B.

Nothing in this chapter prohibits any person or employer, 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. No. 2018-442, § 1, 3-27-2018)

A.

Smoking in all unenclosed areas shall be prohibited within a reasonable distance from any doorway, window, opening, crack, or vent into an enclosed area in which smoking is prohibited by this chapter or state or federal law.

B.

Smoking in unenclosed areas shall be prohibited within a reasonable distance from any unenclosed areas in which smoking is prohibited by this chapter or state or federal law.

C.

The prohibitions in subsections A and B shall not apply to unenclosed areas of private, residential properties including single-family dwellings and multi-unit residences.

(Ord. No. 2018-442, § 1, 3-27-2018)

A.

No person, employer, or nonprofit entity shall knowingly permit smoking in an area which is under the legal or de facto control of that person, employer, or nonprofit entity and in which smoking is prohibited by law.

B.

No person, employer, or nonprofit entity shall knowingly or intentionally permit the presence or placement of ash receptacles, such as, for example, ash trays or ash cans, within an area under the legal or de facto control of that person, employer, or nonprofit entity and in which smoking is prohibited by law, including, without limitation, within a reasonable distance required by this chapter from any area in which smoking is prohibited. 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 provision of this chapter.

C.

A person, employer, or nonprofit entity that has legal or de facto control of an area in which smoking is prohibited by this Chapter shall post a clear, conspicuous and unambiguous "No Smoking" or "Smoke- free" sign at each point of ingress to the area, and in at least one other conspicuous point within the area. The signs shall have letters of no less than one inch in height and shall include 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). Signs posted on the exterior of buildings to comply with this section shall include the reasonable distance requirement set forth in Section 6.28.040. For purposes of this section, the city manager or his/her designee shall be responsible for the posting of signs in regulated facilities owned or leased by the city. Notwithstanding this provision, the presence or absence of signs shall not be a defense to a charge of smoking in violation of any other provision of this chapter.

D.

No person, employer, business, or nonprofit entity 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.

E.

Each instance of smoking in violation of this chapter shall constitute a separate violation.

F.

This chapter shall not be interpreted or construed to permit smoking, including smoking cannabis, where it is otherwise restricted by other applicable laws.

(Ord. No. 2018-442, § 1, 3-27-2018)

A.

The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity. Enforcement of this chapter shall be the responsibility of the city. In addition, any peace office or any enforcement officer designated by the city manager also may enforce this chapter.

B.

Each incident of Smoking in violation of this chapter is an infraction subject to the following penalties:

A verbal and written warning for the first violation;

Up to one hundred dollars ($100.00) for the second violation;

Up to two hundred dollars ($200.00) for a third violation within one year.

C.

Violations of this chapter are subject to a civil action and/or administrative citation brought by the city in accordance with Chapter 1.30 of the City Code as applicable.

D.

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

Except as otherwise provided, enforcement of this chapter is at the sole discretion of the city. Nothing in this chapter shall create a right of action in any person against the city or its agents to compel public enforcement of this chapter against any party.

(Ord. No. 2018-442, § 1, 3-27-2018)