Marin County Municipal Code Ch. 7.70 Smoking Regulations

Footnotes:

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Editor's note— Ord. No. 3584, § 2, adopted May 22, 2012, amended Ch. 7.70 in its entirety to read as herein set out. Former Ch. 7.70, §§ 7.70.010—7.70.150, pertained to similar subject matter and derived from: Ord. 3150, § 3, 1993; Ord. 3439, § 7, 2006; and Ord. 3464, § 2, 2006.

This chapter shall be known as the Marin County Smoke-Free Air and Health Protection Ordinance.

(Ord. No. 3584, § 2, 2012; Ord. No. 3756, § I, 2021)

The following words and phrases, whenever used in this chapter, shall have the following meanings to be interpreted in accord with state statute if a contradiction appears:

A. "Bar" means an area which is devoted to the serving of alcoholic beverages for consumption by patrons on the premises and in which the serving of food is only incidental to the consumption of such beverages. Although a restaurant may contain a bar, the term "bar" shall not include the restaurant dining area.

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

C. "Electronic smoking device" shall mean an electronic or battery-operated device that can be used to inhale any dose of nicotine, cannabis, or other substances. This term shall include every variation and type of such devices whether they are manufactured, distributed, marketed, or sold as an electronic cigarette/cannabis device, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or descriptor.

D. "Employee" means any person who is employed by any employer in consideration for direct or indirect monetary wages or profit, or any person who volunteers his or her services for a nonprofit entity.

E. "Employer" means any person, partnership, corporation, including a municipal corporation, or nonprofit entity, which employs the services of one or more individual persons or accepts the services of volunteers.

F. "Enclosed facilities" means the inside of all buildings and any area in which outside air cannot circulate freely to all parts of the 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 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

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

G. "Landlord" means any person who owns real property leased as residential property, any person who lets residential property, or any person who manages such property, except that "landlord" does not include sublessors.

H. "Lease" means a written or oral agreement between a landlord and tenant conveying possession of a unit. "Lease" includes both agreements set for a fixed period of time as well as month-to-month or week-to-week rental agreements.

I. "Minor" shall mean any individual who is less than eighteen years old.

J. "Multi-unit residence" means a building or portion thereof that contains two or more units that share a common floor, ceiling or wall except the following specifically excluded types of housing:

1. A hotel or motel that meets the requirements set forth in California Civil Code Section 1940(b)(2);

2. A single-family home; and

3. A single-family home with an attached in-law or second unit when permitted pursuant to California Government Code Sections 65852.1, 65852.150, 65852.2 or an ordinance of the city adopted pursuant to those sections.

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.

L. "New unit" means a unit that is issued a certificate of occupancy more than one hundred eighty days after the effective date of this ordinance and also means a unit that is let for residential use for the first time more than one hundred eighty days after the effective date of this ordinance.

M. "Nonprofit entity" means any corporation 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, character-building, political, social or other similar purposes, the net proceeds from the operations of which are committed to the promotion of the objectives or purposes of the entity and not to private gain. A public agency is not a "nonprofit entity" within the meaning of this section.

N. "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).

O. "Opening" shall include entrances, exits, operable windows and ventilation intake systems.

P. "Person" means any natural person, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee, agent or any other legal entity, employer or sole proprietor that an employee, contractor or member of the public may enter during the normal course of operations, but regardless of hours of operation, including, but not limited to, indoor and outdoor work areas, construction sites, vehicles used in employment or for business purposes, taxis, employee lounges and restrooms, conference and banquet rooms, classrooms, bingo and gaming facilities, long-term health facilities, warehouses, and private residences used as child/elder care or health care facilities subject to licensing requirements.

R. "Public place" means any place, public or private, open to members of the general public regardless of any fee or age requirement, including, but not limited to, bars, restaurants, clubs, stores, stadiums, parks, playgrounds, taxis, buses, bus shelters, public transportation facilities, hotels and motels, fairs, farmers' markets, convention halls and theaters. Public place does not mean within private vehicles in or on public places.

S. "Reasonable distance" means a distance that ensures that occupants of an area in which smoking is prohibited are not exposed to secondhand smoke created by smokers outside the area. This distance shall be a minimum of twenty feet.

T. "Recreation area" means any area, public or private, open to the general public for recreational purposes, regardless of any fee requirement, including, but not limited to parks, public gardens, children's play areas, roller and ice rinks, sporting facilities, stadiums and playgrounds.

U. "Service area" means any area at which one or more persons are waiting for a transaction, entry or service of any kind, whether or not such service involves the exchange of money, including, for example, ATMs, bank teller windows, telephones, ticket lines, bus stops and 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, but excluding incense or similar products inhaled solely for olfactory purpose so long as the products do not contain tobacco or nicotine. The term "smoke" includes, but is not limited to, tobacco smoke, electronic cigarette vapors, and marijuana smoke.

W. "Smoking" means engaging in an act that generates smoke, such as for example, but not limited to, possessing a lighted pipe, a lighted hookah pipe, a lighted cigar, an operating electronic smoking device, a lighted cigarette of any kind or a lighted smoke inhalation device of any kind that generates smoke, or the act of lighting or igniting a pipe, a hookah pipe, a cigar, a cigarette or smoke inhalation device of any kind that generates smoke.

X. "Sports arena" means enclosed or unenclosed sports pavilions, gymnasiums, fitness studios, health spas, boxing arenas, swimming pools, roller and ice rinks, bowling alleys, stadiums 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:

1. Any product containing, made, or derived from tobacco, nicotine, or marijuana 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, and snuff.

2. Any electronic smoking device that delivers nicotine, cannabis 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.

3. Notwithstanding any provision of subsections (1) and (2) to the contrary, "tobacco product" includes any component, part, or accessory intended or reasonably expected to be used with 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.

AA. "Unenclosed area" means any area of a county facility or county campus that is not an enclosed facility.

BB. "Unit" means: (1) 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 private outdoor spaces like balconies and patios; (2) 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 facilities or private plumbing facilities. "Unit" includes but is not limited to an apartment; a townhouse; a common interest complex as defined by California Civil Code Section 1351; a room in a long-term health care facility, senior citizen housing, public housing, assisted living facility, or hospital; a room in a single room occupancy ("SRO") facility; a room in a homeless shelter; and "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. No. 3584, § 2, 2012; Ord. No. 3646, § II, 2016; Ord. No. 3698, § II, 2018; Ord. No. 3756, § I, 2021)

A. Smoking shall be prohibited in all enclosed facilities owned or controlled by the county, including, but not limited to, all buildings, jails, the honor farm, juvenile hall and enclosed fairgrounds facilities. This smoking prohibition shall also be applicable to any board, council, commission and/or agency of the county.

B. Smoking shall be prohibited in all unenclosed areas owned, leased or operated solely by and for the county of Marin.

C. Smoking shall be prohibited in all vehicles owned, leased or operated by the county, including jitneys and buses and other means of public transit under the authority of the county.

D. Definitions. The definitions contained in Section 7.70.020 shall be applicable to this section.

E. No person shall dispose of smoking waste, tobacco product waste, electronic smoking device waste, or cannabis product waste in the unenclosed areas of the properties described in subsection B of this Section 7.70.030.

F. To the extent that the provisions of this section conflict or are inconsistent with the provisions of Sections 7.70.040 and/or 7.70.050, the provisions of this Section 7.70.030 shall control.

(Ord. No. 3584, § 2, 2012; Ord. No. 3646, § II, 2016; Ord. No. 3756, § I, 2021)

Editor's note— Ord. No. 3646, § II, adopted May 17, 2016, retitled the catchline of § 7.70.030 from "County-owned vehicles and enclosed facilities" to read as herein set out.

A. Except as otherwise provided, smoking shall be prohibited in all enclosed public places within the county of Marin jurisdiction, such as, but not limited to:

1. Places of employment;

2. Buses, taxicabs, and other means of public transit under the authority of the county and ticket, boarding, and waiting areas of public transit depots;

3. Public places;

4. Service areas;

5. Any facility which is primarily used for exhibiting motion pictures, stage productions, lectures, musical recitals or other similar performances, except for smoking which is part of such production;

6. Recreation areas;

7. A minimum of eighty percent of guest rooms in every hotel, motel and bed and breakfast facility must be permanently designated as completely nonsmoking.

(Ord. No. 3584, § 2, 2012; Ord. No. 3756, § I, 2021)

A. Except as otherwise expressly authorized by state or federal law, smoking shall be prohibited in the following unenclosed public places and places of employment:

1. Public places;

2. Places of employment;

3. Any place where food and/or drink is offered for sale, including outdoor dining areas of restaurants and farmers markets, except unenclosed areas of a stand-alone bar. If smoking is permitted in the unenclosed area of a stand-alone bar, the entire smoking section must be limited to one designated area clearly marked with signs, and must be located at least twenty feet from any doorway or opening into an enclosed area. Smoking in an unenclosed area of a bar may only take place if the smoke does not enter adjacent businesses, residences and areas in which smoking is prohibited;

4. A reasonable distance from any entrance, opening or exit of any enclosed area within which smoking is prohibited, except while passing on the way to another destination;

5. A reasonable distance of service area lines;

6. Courtyards and other areas where air circulation may be impeded by architectural, landscaping or other barriers;

7. Within twenty feet of working road or building and construction crews;

8. Recreation areas;

9. Service areas; and

10. Public events including, but not limited to, sports events, entertainment, speaking performances, ceremonies, pageants, fairs and farmer's markets.

B. No person shall place, cause to be placed, or permit to be placed any ashtray, or tobacco ash collector or receptacle in any area designated a nonsmoking area by this section.

C. No person shall dispose of smoking waste or tobacco product waste within the boundaries of an area in which smoking is prohibited, including inside the perimeter of any reasonable distance requirement.

(Ord. No. 3584, § 2, 2012; Ord. No. 3756, § I, 2021)

A. Smoking is prohibited in all multi-unit residence common areas except that a landlord may designate a portion of the outdoor area of the premises as a smoking area as provided in subsection B below.

B. A designated smoking area:

1. Must be located a reasonable distance from any unit or indoor area where smoking is prohibited;

2. Must not include, and must be a reasonable distance from, outdoor areas primarily used by children including, but not limited to, areas improved or designated for play or swimming;

3. Must be no more than ten percent of the total outdoor area of the premises for which it is designated;

4. Must have a clearly marked perimeter;

5. Must be identified by conspicuous signs; and

6. Must not overlap with any enclosed or unenclosed area in which smoking is otherwise prohibited by this chapter or other provisions of this Code, state law, or federal law

7. Must be completely within an unenclosed area.

C. Smoke-free buffer zones: Smoking is prohibited on the premises of a multi-unit residence within a reasonable distance of any entrance, opening, or other vent into an enclosed area of a multi-unit residence in which smoking is prohibited by this chapter, other provisions of this Code, state law, or federal law. For example, and without limitation, smoking on balconies, porches, or patios within a reasonable distance of a window or door of a nonsmoking unit is prohibited.

D. Smoking restriction in multi-unit residences:

1. As provided in subsections (a) and (b), smoking is prohibited in all units of a multi-unit residence, including any associated exclusive-use enclosed areas or unenclosed areas, such as a private balcony, porch, deck, or patio.

(a) Smoking in any unit of a multi-unit residence is a violation of this Chapter 7.70, except as provided in subsection (b).

(b) Any unit in a multi-unit residence that permits smoking on the date this ordinance is adopted must be smoke-free by October 1, 2022. Effective October 1, 2022, smoking in such a unit is a violation of this Chapter 7.70. All units that are currently smoke-free must remain smoke-free.

E. Required lease terms:

1. Every new lease, renewal of a lease, lease extension or other agreement for the occupancy of a unit in a multi-unit residence shall include:

(a) A clause stating that smoking is prohibited in the unit;

(b) A clause stating that it is a material breach of the lease or agreement to:

(i) Violate any law regarding smoking while on the premises;

(ii) Smoke in the unit; or

(iii) Smoke in any multi-unit residence common area other than the designated smoking area, if such an area exists; and

(c) A clause expressly conveying third-party beneficiary status to all occupants of the multi-unit residence as to the smoking provisions of the agreement. Such a clause might state, "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."

2. The lease or agreement terms required by subsection (a) are hereby incorporated by force of law into any lease or other agreement for the occupancy of a unit in a multi-unit residence made on or after the effective date of the ordinance which adopted this section and which does not fully comply with subsection (a).

3. A tenant who breaches the smoking regulations of a lease or knowingly allows another person to do so shall be liable to:

(a) The landlord; and

(b) To any lawful occupant of the multi-unit residence who is exposed to secondhand smoke as a result of that breach. A landlord shall not be liable to any person for a tenant's breach of smoking regulations if the landlord has fully complied with subsection (a).

4. Failure to enforce any smoking regulation of a lease or agreement on one or more occasions shall not constitute a waiver of the lease or agreement provisions required by this chapter and shall not prevent future enforcement of any such smoking regulation on another occasion.

F. Prohibitions and duties generally:

1. No person shall smoke or knowingly permit smoking in an area of the premises under his or her legal or de facto control in which smoking is prohibited by a lease or agreement term, by this chapter, this Code, or any other state or federal law.

2. No person shall knowingly permit the presence or placement of ash trays, cans, or other receptacles within multi-unit residence common areas under his or her legal or de facto control in which smoking is prohibited by this chapter, this Code, or any other state or federal law, including, for example and without limitation, within a reasonable distance of any nonsmoking area.

3. 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 or red heart crossed by a red bar) shall be clearly and conspicuously posted and maintained by the landlord in every place on the premises in which smoking is prohibited by this chapter or by the landlord, except that signs are not required inside units. Signs must be sufficient to make areas where smoking is prohibited obvious to a reasonable person. The absence of signs shall not be a defense to a violation of any provision of this chapter.

(Ord. No. 3584, § 2, 2012; Ord. No. 3756, § I, 2021)

A. Except as otherwise prohibited by state or federal law, the following areas shall not be subject to the smoking restrictions of this article:

1. Single-family dwellings, except when used as a childcare or health care facility;

2. Retail tobacco stores, except where smoke from such stores enters an adjacent enclosed area where smoking is not permitted, or where such stores have a shared ventilation system with other stores.

B. Nothing in this chapter shall be construed to prevent any owner, operator, manager or other person who controls any establishment or facility from declaring and enforcing a nonsmoking policy in the entire establishment or facility or from posting signs as described by Section 7.70.110.

(Ord. No. 3584, § 2, 2012; Ord. No. 3756, § I, 2021)

The uninvited presence of secondhand smoke in or within a reasonable distance of any entrance opening or other vent into any of the following enclosed places of human habitation is a nuisance and a trespass:

A. Residential uses and structures;

B. Assisted living facilities;

C. Board and care homes;

D. Child/adult daycare facilities;

E. Congregate care facilities;

F. Convalescent hospitals;

G. Group care facilities;

H. Group homes;

I. Medical services—Hospitals;

J. Medical services—Extended care facilities;

K. Residential care facilities for the elderly;

L. Residential care homes;

M. Rooming and boarding houses;

N. Skilled nursing facilities.

(Ord. No. 3584, § 2, 2012; Ord. No. 3756, § I, 2021)

A. Smoking in a multi-unit residence common area on or after the effective date of this ordinance, other than in a designated smoking area established pursuant to Subsection 7.70.060B, is a violation of this chapter.

B. Smoking in any unit within a multi-unit residence, on or after the effective date of this ordinance, is a violation of this chapter, excepted as provided in subsection (C).

C. Smoking in a unit that was designated a smoking unit on the effective date of this ordinance on or after the effective date of this ordinance plus one year, is a violation of this chapter.

(Ord. No. 3584, § 2, 2012; Ord. No. 3756, § I, 2021)

A. No person, employer, business or nonprofit entity shall knowingly permit the smoking of tobacco products in an area which is under the legal or actual control of the person, employer, business or nonprofit entity and in which smoking is prohibited by law.

B. No person, employer, business or nonprofit entity shall knowingly or intentionally permit the presence or placement of ash receptacles, such as, for example, ashtrays or ash cans, within an area which is under the legal or actual control of the person, employer, business or nonprofit entity and in which smoking is prohibited.

C. No Person shall dispose of used smoking or tobacco product waste within the boundaries of an area in which smoking or tobacco or cannabis product use is prohibited, including within any reasonable distance required by this section.

(Ord. No. 3584, § 2, 2012; Ord. No. 3756, § I, 2021)

A. No smoking signs or the international no smoking symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle or red heart with a red bar across it) shall be clearly, sufficiently and conspicuously posted in every building, as well as on entrances, or other places where smoking is regulated by this chapter, by the person, employer, business or nonprofit entity with legal or actual control of such building or other place.

B. Template signs may be available from the various county departments responsible for inspections, the tobacco-related disease control program of the health and human services department, or the Marin County website.

(Ord. No. 3584, § 2, 2012; Ord. No. 3756, § I, 2021)

A. Notice of this chapter will be provided to all applicants for a business license or renewal thereof. However, lack of such notice shall be no defense to a violation of this chapter.

B. Enforcement of this chapter shall be the responsibility of the director of the department of health and human services, or designee of the director of health and human services, who shall have the powers enumerated in this chapter as well as the powers to seek nuisance abatement in accordance with Section 1.04.180 of the Marin County Code and to issue citations for violation of the chapter in accordance with Section 853.6 of the California Penal Code and Sections 1.04.210, 1.04.220, 1.04.230, 1.04.240, 1.04.250 and 1.04.260 of the Marin County Code.

C. The staff of the Marin County Fire Department, Health and Human Services Department, Environmental Health Department, Parks Department, or any other county department with jurisdiction over the subject matter of this chapter, shall, in connection with their regular inspections of businesses and restaurants located in the unincorporated areas of the county, require that the owner, manager, operator or other person who controls such establishments certify compliance with applicable requirements of this chapter.

D. Any citizen may make a complaint under this chapter to the county department with jurisdiction of the area in which the violation is alleged to have occurred; or, with department of health and human services tobacco-related disease control program.

E. Notwithstanding any other provision of this chapter, a private citizen may bring legal action to enforce this chapter.

(Ord. No. 3584, § 2, 2012; Ord. No. 3756, § I, 2021)

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

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

C. It shall be unlawful for any person who owns, manages, operates or otherwise controls the use of any premises subject to regulation under this chapter to refuse to comply with any of its provisions, or to permit any employee or patron to violate this chapter.

D. It shall be unlawful for any person to smoke in any area where smoking is prohibited under this chapter.

E. Any person, employer, business or nonprofit entity, or owner, manager or operator of any establishment subject to this chapter who violates any provision of this chapter shall be deemed guilty of an infraction, punishable by a civil fine not less than two hundred fifty dollars and not exceeding one thousand dollars per violation.

F. In addition, any person, business, or owner, manager or operator of any establishment subject to this chapter who violates any provision of this chapter may be responsible for reimbursement to county of any additional costs incurred for administration, re-inspection, citation, or other action necessitated by the violation as authorized in the applicable sections of the Marin County Code and/or under state law.

(Ord. No. 3584, § 2, 2012; Ord. No. 3756, § I, 2021)

No person or employer shall discharge or in any manner retaliate against any employee or patron because such employee or patron exercises any right to a smoke-free environment afforded by this chapter. No person or landlord shall evict or in any manner retaliate against any tenant or lessee because such tenant or lessee exercises any right to a smoke-free environment afforded by this chapter.

(Ord. No. 3584, § 2, 2012; Ord. No. 3756, § I, 2021)

The Tobacco-Related Disease Control Program of the Marin County Department of Health and Human Services will engage in a continuing educational program to explain and clarify the purposes and requirements of this chapter, as well as a guide to owners, operators and managers with compliance. However, lack of such education shall be no defense to a violation of this chapter.

(Ord. No. 3584, § 2, 2012; Ord. No. 3756, § I, 2021)

The Marin County Department of Health and Human Services may annually request other governmental and educational agencies having facilities within the county to establish local operating procedures in cooperation and compliance with this chapter. This includes urging all federal, state, county, city, town and school district agencies to update their existing smoking control regulations to be consistent with current health findings regarding environmental tobacco smoke.

(Ord. No. 3584, § 2, 2012; Ord. No. 3756, § I, 2021)

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

(Ord. No. 3584, § 2, 2012; Ord. No. 3756, § I, 2021)