Morro Bay Municipal Code Ch. 9.24 Secondhand Smoking Regulations

Footnotes:

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Editor's note— Ord. No. 577, adopted April 24, 2012, in effect repealed the former Chapter 9.24, §§ 9.24.010—9.24.040, and enacted a new Chapter 9.24 as set out herein. The former Chapter 9.24 pertained to smoking and fires prohibited on beaches and T piers and derived from Ord. No. 517, 2006.

This chapter is enacted with the specific intent to:

A. Prohibit smoking in certain public places not preempted by California Labor Code Section 6404.5, which provides further smoking regulations;

B. Protect the public health, safety and general welfare by prohibiting smoking in certain public places under circumstances where other persons will be exposed to secondhand smoke;

C. Ensure a cleaner and more hygienic environment for the city, its residents, and its natural resources, including its creeks and streams and beaches;

D. Strike a reasonable balance between the needs of persons who smoke and the needs of nonsmokers, including residents and visitors, particularly children, to breathe smoke-free air, recognizing the threat to public health and the environment which smoking causes;

E. Designate the enforcing agency for this chapter and for Labor Code Section 6404.5.

(Ord. No. 577, 4-24-12)

The following words and phrases, as used in this chapter or in any other applicable law regulating smoking, shall have the following meanings:

"Business" means any sole proprietorship, partnership, joint venture, corporation, association or other entity formed for profit-making purposes or that has an employee.

"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. "Cannabis" also means the separated resin, whether crude or purified, obtained from cannabis. "Cannabis" does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination.

"City beach" means the sandy area on either side of the mean high tide line from Atascadero Road all the way up to, but not including the parking lot at the Rock. City beach shall also include the area of the Sand Spit that is owned by the city.

"City T-piers" means the municipal piers located North of Beach Street and at Tidelands Park.

"Code compliance officer" means the city code compliance officer or duly authorized designee of the city code compliance officer.

"Common area" means every enclosed area and every unenclosed area of a multi-unit 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" means an electronic device that can be used to deliver an inhaled dose of nicotine, or other substances (including but not limited to cannabis), including any component, part or accessory of such a device, whether or not sold separately. 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.

"Employee" means any person who is employed or retained as an independent contractor by any employer as defined in this section; or any person who volunteers his or her services for an employer, association, nonprofit or volunteer entity.

"Employer" means any person, partnership, corporation, association, nonprofit or other entity that employs or retains the service of one or more persons, or supervises volunteers.

"Enclosed" means any covered or partially covered space having more than fifty percent of its perimeter area walled in or otherwise closed to the outside such as, for example, a covered porch with more than two walls; or any space open to the sky (hereinafter "uncovered") having more than seventy-five percent of its perimeter area walled in or otherwise closed to the outside such as, for example, a courtyard.

"Landlord" means any person or agent of a person who owns, manages, or is otherwise legally responsible for a unit in a multi-unit residence, except that "landlord" does not include a tenant who sublets a unit.

"Multi-unit residence" means a new or existing property containing two or more units, including, but not limited to, apartment buildings, condominium complexes, senior and assisted living facilities, and long-term health care facilities. Multi-unit residences do not include the following:

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 or second unit.

"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 of the entity and not to private gain. A public agency is not a nonprofit entity within the meaning of this section.

"Place of employment" means any area under the legal or de facto control of an employer, business or nonprofit entity that an employee or the general public may have cause to enter in the normal course of operations, but regardless of the hours of operation, including, for example, indoor and outdoor work areas, vehicles used in employment or for business purposes, taxis, employee lounges, conference and banquet rooms, bingo and gaming facilities, long-term health facilities, warehouses and private residences that are used as childcare or healthcare facilities subject to licensing requirements.

"Playground" means any park or recreational area designed in part to be used by children, that has play or sports equipment installed or has been designated or landscaped for play or sports activities, or any similar facility located on public or private school grounds, or on city property.

"Premises" means a lot or contiguous lots and any improvements thereon such as is usually described in a deed, deed of trust or mortgage, and includes legally separate but contiguous pieces of land that are owned by the same person or are under common control.

"Present" means within a reasonable distance.

"Public place" means any public or private place open to the general public regardless of any fee or age requirement, including, for example, streets, sidewalks, parking lots, parking garages, plazas, bars, restaurants, clubs, stores, stadiums, parks, playgrounds, city beaches, T-Piers, taxis and buses. For the purposes of the provisions of this chapter, a "public place" does not mean a private residence except for residences used as an adult or child care, health care, board and care, or community foster care facility as such terms are defined by the state Health and Safety Code.

"Reasonable distance" means the greatest distance practicable 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.

"Recreational area" means any public or private area open to the public for recreational purposes whether or not any fee for admission is charged, including without limitation, parks, trails, gardens, sporting facilities, stadiums, beaches, T-piers and playgrounds.

"Restaurant" means any coffee shop, cafeteria, luncheonette, tavern, cocktail lounge, sandwich stand, soda fountain, private and public school cafeteria, eating establishment, boardinghouse or guest house or similar establishment which gives or offers for sale food to the public.

"Secondhand smoke" means smoke that is generated either from the burning end of a lighted tobacco, weed, cannabis or plant product, or from an electronic smoking device; or, smoke that is exhaled by a smoker, after inhaling or ingesting a lit tobacco, weed, cannabis or plant product, or after use of an electronic smoking device.

"Service area" means any area designed to be or regularly used by one or more persons to receive or wait to receive a service, enter a public place or make a transaction whether or not such service includes the exchange of money, including, for example, ATMs, bank teller windows, telephones, ticket lines, bus stops, taxi stands and takeout counters.

"Smoke or smoking" means the carrying or holding of a lighted pipe, cigar, cigarette, or any other lighted smoking product or equipment used to burn any tobacco products, weed, plant, cannabis, or any other combustible substance. Smoking includes emitting or exhaling the fumes of any pipe, cigar, cigarette, or any other lighted smoking equipment, including an electronic smoking device, used for burning any tobacco product, weed, plant, cannabis, or any other combustible substance.

"Sports arena" means an outdoor or nonenclosed sports pavilion, stadium, swimming pool, roller rink, or other similar place where members of the general public assemble either to engage in physical exercise, participate in athletic competition or witness sports events, including the concession stand areas thereof.

"Unenclosed area" means any area which is not enclosed.

"Unit" means 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.

(Ord. No. 577, 4-24-12; Ord. No. 612, § 4, 11-14-17; Ord. No. 632, § 2, 4-26-20)

A. For all purposes within the jurisdiction of the city, the nonconsensual exposure to secondhand smoke and the uninvited presence of secondhand smoke on property in violation of this chapter shall constitute a nuisance, as is further described by Title 8 of the Morro Bay Municipal Code.

B. For all purposes within the jurisdiction of the city, no person shall cause secondhand smoke to unreasonably interfere with the reasonable use and enjoyment of another person's private residence.

(Ord. No. 577, 4-24-12; Ord. No. 612, § 4, 11-14-17)

Except as otherwise provided by this chapter or by state or federal law, smoking shall be prohibited everywhere in the city, including but not limited to:

A. All public places;

B. Residences used as child care, health care, board and care, or community foster care facility as such terms are defined by state Health and Safety Code;

C. Places of employment, except outdoor construction sites;

D. Enclosed and unenclosed places of hotels, businesses, restaurants, bars and other public accommodations;

E. Any means of public transit including associated waiting areas, and service areas, enclosed or not;

F. Units in multi-unit residences; and

G. Common areas of multi-unit residences.

The prohibitions stated in subsections F and G of this section shall become effective on August 1, 2020.

(Ord. No. 577, 4-24-12; Ord. No. 632, § 2, 4-26-20)

Smoking in unenclosed areas shall be prohibited within a reasonable distance (at least twenty feet) from any entrance, opening, crack or vent into an enclosed area where smoking is prohibited, except while actively passing on the way to another destination and so long as smoke does not enter any enclosed area in which smoking is prohibited.

(Ord. No. 577, 4-24-12; Ord. No. 632, § 2, 4-26-20)

Except where prohibited by local, state or federal law, smoking may be permitted in the following locations within the city notwithstanding Section 9.24.040:

A. Private residences other than multi-unit residences. This chapter does not preclude private regulation of smoking on private residential properties.

B. Designated smoking areas provided that all of the following conditions are met:

1. The area is located a reasonable distance away from any doorway or opening into an enclosed area and any access way to a public place;

2. The area has a clearly marked perimeter;

3. The area is posted with one or more conspicuously displayed sign(s) identifying the area as a designated outdoor smoking area pursuant to Section 9.24.060 of this code;

4. Smoke is not permitted to enter adjacent areas in which smoking is prohibited by this chapter, other law or by the owner, lessee or licensee of the adjacent property;

5. Appropriate ash can(s) are placed in the smoking area and are maintained regularly by the owner, operator or manager of the smoking area; and

6. No consistent complaints of secondhand smoke are filed with the city.

C. Smoking areas at public events which have been approved as part of the special event permit or temporary use permit issued by the city.

D. Inside a private automobile when no minor child is present, except for as prohibited by state law.

(Ord. No. 577, 4-24-12; Ord. No. 612, § 4, 11-14-17; Ord. No. 632, § 2, 4-26-20)

The city reserves the right to prohibit or require modifications to a designated smoking area at a certain location if it undermines the purposes of this chapter, or violates the requirements of Section 9.24.060(B) of this code.

(Ord. No. 577, 4-24-12; Ord. No. 632, § 2, 4-26-20)

A. No person, employer, business, landlord or nonprofit entity shall knowingly permit smoking in an area under his, her or its legal or de facto control in which smoking is prohibited by this chapter or other law.

B. No person, employer, business, landlord or nonprofit entity shall allow the placement or maintenance of a receptacle for smoking waste in an area under his, her or its legal or de facto control in which smoking is prohibited by this chapter or other law, with the following exceptions:

1. A receptacle may be placed at the entry to a nonsmoking area, along with a "No Smoking" sign, in order to encourage any smokers in violation of this chapter to immediately extinguish and properly dispose of smoking materials.

2. A receptacle may be placed by the city within the public right-of-way with the authorization of the public works director, consistent with an intent of this chapter to "ensure a cleaner and more hygienic environment," although the presence of such receptacles shall not be a defense to a charge of smoking in violation of any provision of this chapter.

C. No person shall intimidate, threaten, effect a reprisal or retaliate against another person who seeks to attain compliance with one or more of this chapter's provisions.

(Ord. No. 577, 4-24-12; Ord. No. 652, § 2, 5-24-22)

A. Every lease or other agreement (collectively, "lease") for the occupancy of a unit in a multi-unit residence, entered into, renewed, or continued month-to-month, effective on or after August 1, 2020, shall include the following:

1. A clause stating that smoking is prohibited in the unit, including exclusive-use areas such as balconies, porches, or patios.

2. A clause providing that it is a material breach of the lease for the tenant, or any other person subject to the control of the tenant or present by invitation or permission of the tenant, including sublessees, to (i) smoke in any common area of the property other than a designated smoking area, (ii) smoke in the unit, or (iii) violate any law regulating smoking anywhere on the property.

3. A clear description of all areas on the property and in the immediate vicinity of the property where smoking is allowed or prohibited.

4. A clause expressly conveying third-party beneficiary status to all occupants of the multi-unit residence as to the smoking provisions of the lease. Such a clause shall provide that any tenant of the multi-unit residence may sue another tenant/owner to enforce the smoking provisions of the lease but that no tenant shall have the right to evict another tenant for a breach of the smoking provisions of the lease.

B. Whether or not a landlord complies with subsection A, above, the clauses required by that subsection shall be implied and incorporated by law into every lease to which subsection A applies that is entered into, renewed, or continued month-to-month on or after August 1, 2020.

C. This chapter shall not create additional liability for a landlord to any person for a tenant's breach of any smoking provision in a lease for the occupancy of a unit in a multi-unit residence if the landlord has fully complied with this section.

D. Failure to enforce any smoking provision required by this chapter 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. 632, § 2, 4-26-20)

A. On or before August 1, 2020, every landlord shall provide to the occupants of each unit of a multi-unit residence a written notice of the requirements prohibiting smoking in units and common areas as stated in Section 9.24.040 of this code.

B. Beginning on August 1, 2020, every seller of a unit in a multi-unit residence shall provide prospective buyers with a written notice clearly stating that:

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

2. Smoking is prohibited in all common areas, except for specifically designated smoking areas.

(Ord. No. 632, § 2, 4-26-20)

Notwithstanding this provision, the presence or absence of signs shall not be a defense to the violation of any other provision of this chapter.

A. "No Smoking" or "Smoke Free" signs, with letters of not 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) or any alternative signage approved by the community development director must be conspicuously posted at each entrance to any place in which smoking is prohibited by this chapter by the person, employer, business or nonprofit entity who or which has legal or de facto control of such place.

B. Within designated smoking areas, one or more conspicuously displayed sign(s) shall be posted identifying the area as a designated smoking area pursuant to Section 9.24.060 of this code as follows: signs with arrows directing the public to the smoking area may be allowed; signs shall be no smaller than three inches high and eight inches long with a pictorial representation of a burning cigarette; signs shall contain "Designated Smoking Area" and shall be posted prominently between five feet and seven feet above the floor or ground; and all signs are subject to approval by the community development director.

C. Every hotel and motel shall have signs posted conspicuously in the registration and lobby areas which state that nonsmoking rooms are maintained and may be available; rooms designated as being nonsmoking shall have signs announcing such restriction conspicuously placed inside the room.

D. No person shall alter, deface, obscure, remove or destroy a sign or placard that this chapter authorizes.

(Ord. No. 577, 4-24-12; Ord. No. 632, § 2, 4-26-20)

No person shall dispose of any cigarette, cigar or tobacco, or any part of a cigarette or cigar, in any place where smoking is prohibited under this chapter, except in a designated waste disposal container.

(Ord. No. 577, 4-24-12)

No person shall build, light or maintain any fire on any city beach except in designated containers or areas approved by the city.

(Ord. No. 577, 4-24-12)

A. Any violation of the provisions of this chapter is punishable as a misdemeanor or an infraction, at the discretion of the city prosecutor, pursuant to Chapter 1.16 of the Morro Bay City Code; and, any violation of the provisions of this chapter is subject to administrative citation, at the discretion of the city, pursuant to Chapter 1.03 of the Morro Bay City Code.

B. Punishment under this section shall not preclude punishment pursuant to Health and Safety Code Section 13002, Penal Code Section 374.4, or any other law proscribing the act of littering. Nothing in this section shall preclude any person from seeking any other remedies, penalties or procedures provided by law.

C. Any violation of this chapter shall be deemed a public nuisance which may be abated in accordance with the procedures set forth in Chapter 8.14 of the Morro Bay City Code. All costs to abate such public nuisance, including attorneys' fees and court costs, shall be paid by the person causing the nuisance, including the property owner where the nuisance is occurring.

D. The remedies described in this section are not mutually exclusive. Pursuit of any one remedy shall not preclude city from availing itself of any or all available administrative, civil, or criminal remedies, at law or equity.

E. Any violation of the provisions of this chapter shall constitute a separate offense for each and every day during which such violation is committed or continued.

(Ord. No. 577, 4-24-12; Ord. No. 612, § 4, 11-14-17)

The code compliance officer, in conjunction and coordination with the county health officer of the county of San Luis Obispo and, where feasible, appropriate health or safety oriented community-based organizations and coalitions, shall engage in a continuing program to explain and clarify the purposes of the provisions of the chapter to citizens affected by it, and to guide business owners, operators and managers in their compliance with it.

(Ord. No. 577, 4-24-12)

The city manager shall request all governmental and educational agencies which maintain an office within the city to establish local operating procedures to cooperate and comply with this chapter.

(Ord. No. 577, 4-24-12)

The provisions of this chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws. Further, it is not the intent of the provisions of this chapter to regulate smoking where such regulation has been preempted by the state.

(Ord. No. 577, 4-24-12)