Chapter 8.30 — SMOKING

This chapter shall be known as the smoking pollution control ordinance.

(Prior code § 4-10.01)

The City Council of the city finds that:

A.

Numerous studies have found that tobacco smoke is a major contributor to indoor air pollution; and

B.

Reliable studies have shown that breathing secondhand smoke is a significant health hazard for certain population groups, including elderly people, individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease; and

C.

Health hazards induced by breathing secondhand smoke include lung cancer, respiratory infection, decreased exercise tolerance, decreased respiratory function, bronchoconstriction, and bronchospasm; and

D.

Nonsmokers who suffer allergies, respiratory diseases and other ill effects of breathing secondhand smoke may experience a loss of job productivity or may be forced to take periodic sick leave because of such adverse reactions; and

E.

Numerous studies have shown that a majority of both nonsmokers and smokers desire to have restrictions on smoking in public places and places of employment; and

F.

Smoking is a documented cause of fires, and cigarette and cigar burns and ash stains on merchandise and fixtures cause economic losses to businesses. Accordingly, the City Council finds and declares that the purposes of this Chapter are:

To protect the public health and welfare by prohibiting smoking in public places except in designated smoking areas, and by regulating smoking in places of employment, and

To strike a reasonable balance between the needs of smokers and the need of nonsmokers to breathe smoke-free air, and to recognize that, where these needs conflict, the need to breathe smoke-free air shall have priority.

(Prior code § 4-10.02)

The following words and phrases, whenever used in this Chapter, shall be construed as defined in this section:

"Bar" means any enclosed or unenclosed area or a room utilized primarily for the sale of alcoholic beverages for consumption by patrons on the premises and in which the serving of food is incidental to the consumption of such beverages.

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

"City Manager" means the city of Oakland City Administrator or their designee.

"Dining area" means any enclosed or unenclosed area available to or customarily used by the general public or employees, that is designed, established, or regularly used for consuming food and/or drink.

"Dwelling Unit" includes both enclosed and unenclosed areas of a living unit such as balconies and patios.

"Employee" means any person who is employed by any employer, as defined in this section, in the consideration for direct or indirect monetary wages or profit and any person who volunteers their services for a nonprofit entity.

"Employer" means any person, partnership, corporation, or nonprofit entity which employs the service of one (1) or more persons, and includes the city of Oakland.

"Enclosed" means closed in by a roof and four or more connected walls with appropriate openings for ingress and egress.

"Multi-unit housing complex" means any housing complex with two (2) or more separate units.

"Multi-unit housing common area" means any common area of a multi-unit housing complex accessible to and usable by more than one (1) residence, including, but not limited to, halls and paths, lobbies, laundry rooms, common cooking areas, outdoor dining areas, play areas, swimming pools, and parking lots.

"Nonprofit entity" means any organization exempt from federal income taxation under Section 501 of the Internal Revenue Code or any organization exempt from State Income Taxation under Section 23708 of the California Revenue and Taxation Code.

"Place of employment" means any enclosed area under the control of any employer which employees normally frequent during the course of employment, including, but not limited to, work areas, employee lounges, breakrooms and restrooms, conference and classrooms, cafeterias, hallways, employer-owned vehicles used in employment or for business purposes, hotel and motel lobbies, meeting rooms and banquet rooms, and warehouses. A private residence is not a place of employment unless it is used as licensed health care or a licensed child or adult care facility.

"Recreational area" means any outdoor area, owned or operated by the city of Oakland, open to the general public for recreational purposes, regardless of any fee or age requirement, including, but not limited to: parklands, including portions of parks, such as picnic areas, playgrounds, or sports fields; walking paths; gardens; hiking trails; bike paths; horseback riding trails; athletic fields; skateboard parks; and

amusement parks. For the purposes of this Chapter, "recreational area" does not include outdoor areas of city-owned golf courses.

"Retail tobacco store" means a retail store utilized primarily for the sale of tobacco products and tobacco accessories and in which the sale of other products is merely incidental.

"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, waiting rooms, and cab stands.

"Smoking" means inhaling, exhaling, burning, or carrying any lighted, heated, or ignited cigar, cigarette, pine, weed, or other combustible substance. For purposes of this Chapter, smoking also includes using an electronic device that creates an aerosol or vapor, also known as vaping.

(Ord. No. 13820, § 2, 12-3-2024; Ord. 12837 § 4 (part), 2007; Ord. 12708 §§ 1 (part) and 2, 2005: prior code § 4-10.03)

All facilities owned by the city shall be subject to the provisions of this Chapter.

(Ord. 12837 § 4 (part), 2007; prior code § 4-10.04)

A.

Smoking, except for the legal smoking of cannabis, shall be prohibited in all dwelling units of all multi-unit housing complexes. At the discretion of the owner, or homeowner's association, smoking of cannabis may also be prohibited in dwelling units.

B.

All owners of dwelling units in multi-unit housing complexes are required to disclose all applicable smoking restrictions to prospective tenants and prospective purchasers of the dwelling unit.

C.

This section shall not apply to the following multi-unit housing complexes:

Detached dwelling units on a parcel that do not share any enclosed common areas.

Owner occupied duplexes where no tenants reside in either dwelling unit.

(Ord. No. 13820, § 3, 12-3-2024)

Smoking shall be prohibited in the following enclosed places:

Places of employment;

New and existing multi-housing common areas;

Service areas.

(Ord. No. 13820, § 4, 12-3-2024; Ord. 12837 § 4 (part), 2007; prior code § 4-10.05)

Editor's note— Ord. No. 13820, § 4, adopted Dec. 3, 2024, amended the title of § 8.30.050 to read as herein set out. The former § 8.30.050 title pertained to prohibition of smoking in enclosed places and notices for multi-housing.

Smoking shall be prohibited in the following unenclosed places:

A.

Service areas;

B.

Dining areas;

C.

Recreational areas, except in parking areas used for parking vehicles of persons accessing the recreational area;

D.

Multi-housing common areas, except that the landlord may designate a portion of the outdoor area of the premises as a smoking area as provided in Subsection 1 below.

A designated smoking area:

a.

Must be located at least twenty-five (25) feet from any indoor area where smoking is prohibited;

b.

Must not include and must be at least twenty-five (25) feet from outdoor areas primarily used by children, including, but not limited to, areas improved or designated for play or swimming;

c.

Must be no more than twenty-five percent (25%) of the total outdoor area of the premises of the multi- housing complex;

d.

Must have a clearly marked perimeter;

e.

Must be identified by conspicuous signs; and

f.

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

(Ord. 12837 § 4 (part), 2007)

A.

Smoking shall not be permitted in places of employment and employers shall post "No Smoking" or "Smoke Free" signs in accordance with Section 8.30.090. Employers should promote smoking cessation programs for smoking employees and contact local health organizations for assistance and materials in this effort.

B.

Smoking outside of any enclosed place where smoking is prohibited shall occur at a minimum distance of twenty-five (25) feet from any building entrance, exit, window and air intake vent of the building.

C.

This provision shall not apply to governmental and educational agencies exempted by state or federal law.

(Ord. No. 13820, § 5, 12-3-2024; Ord. 12837 § 4 (part), 2007; Ord. 12708 § 1 (part), 2005: prior code § 4- 10.06)

Notwithstanding any other provisions of this Chapter, any owner, operator, manager or employer or other person who controls any establishment or place of employment or multi-housing complex regulated by this Chapter, may adopt policies relating to smoking which are more restrictive than those provided herein.

(Ord. 12837 § 4 (part), 2007; prior code § 4-10.07)

Notwithstanding any other provision of this Chapter, to the contrary, the following areas shall not be subject to the smoking restrictions of this Chapter:

A.

Enclosed areas of private, detached, single family residences, except those used as licensed child care, adult care, or health care facilities;

B.

Unenclosed areas of private, detached, single family residences, except, during their hours of operation, those used as licensed child care, adult care, or health care facilities;

C.

Retail tobacco stores;

D.

The area designated in a cannabis consumption permit issued pursuant to Oakland Municipal Code Section 5.80.025;

E.

By performers during theatrical productions, if smoking is an integral part of the story.

(Ord. No. 13843, § 4, 5-20-2025; Ord. 12837 § 4 (part), 2007; prior code § 4-10.08)

A.

"No Smoking" or "Smoke Free" signs, with letters of no less than one (1) 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 in every building or other place where smoking is regulated by this Chapter, by the owner, operator, manager or other person having control of such building or other place. In multi-unit housing complexes, signs are not required in dwelling units. However, signs in common areas must state that smoking is prohibited in dwelling units. For purposes of this Chapter, the City Administrator or appropriate designee shall be responsible for the posting of signs in regulated facilities of the City.

B.

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

(Ord. No. 13820, § 6, 12-3-2024; Ord. 12837 § 4 (part), 2007; prior code § 4-10.09)

A.

Enforcement of this Chapter shall be implemented by the City Administrator, or their designee.

B.

Any citizen who desires to register a complaint under this Chapter may initiate enforcement with the City Administrator or their designees.

C.

Any owner, manager, operator or employee of any establishment regulated by this Chapter shall have the right to inform persons violating this Chapter of the appropriate provisions thereof.

D.

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

(Ord. No. 13820, § 7, 12-3-2024; Ord. 12837 § 4 (part), 2007; prior code § 4-10.10)

A.

It is unlawful for any persons to smoke in any area where smoking is prohibited by the provisions of this Chapter.

B.

Any person who violates any provision of this Chapter shall be guilty of an infraction, punishable by:

A fine not exceeding one hundred dollars ($100.00) for a first violation;

A fine not exceeding two hundred dollars ($200.00) for a second violation of this Chapter within one (1) year;

A fine not exceeding five hundred dollars ($500.00) for each additional violation of this Chapter within one (1) year.

C.

Notwithstanding the penalties set forth above, a tenant who violates the prohibition against smoking in the tenant's dwelling unit shall be subject to a fine not exceeding fifty dollars ($50.00). A tenant shall receive a written warning for the first violation prior to issuance of any fine.

(Ord. No. 13820, § 8, 12-3-2024; Prior code § 4-10.11)

No person shall discharge, refuse to hire, or in any manner retaliate against any employee or applicant for employment because such employee or applicant exercises any rights afforded by this Chapter.

No person shall intimidate, harass, or otherwise retaliate against any person who seeks to attain compliance with this Chapter. 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 Chapter.

(Ord. 12837 § 4 (part), 2007; prior code § 4-10.12)

The City Administrator shall engage in a continuing program to explain and clarify the purposes of this Chapter to citizens affected by it, and to guide owners, operators, and managers in their compliance with it.

(Ord. 12837 § 4 (part), 2007; prior code § 4-10.13)

The City Administrator shall annually request other governmental and educational agencies having facilities within the City to establish local operating procedures in cooperation and compliance with this Chapter. The City Administrator shall urge federal, state, county, and special school district agencies to enforce their existing no smoking regulations and to comply voluntarily with this Chapter.

(Ord. 12837 § 4 (part), 2007; prior code § 4-10.14)

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

(Prior code § 4-10.15)