Piedmont Municipal Code Art. II Regulation of Tobacco Products

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

(a) “Business” means any sole proprietorship, partnership, joint venture, corporation, association, or other entity formed for profit-making or non-profit purposes that is open to and accessible to the general public, not including home occupations as defined and regulated under Section 17B of the Piedmont Municipal Code.

(b) “Characterizing Flavor” means a taste or aroma, other than the taste or aroma of tobacco, imparted either prior to or during consumption of a Tobacco Product or any byproduct produced by the Tobacco Product, including, but not limited to, tastes or aromas relating to menthol, mint, wintergreen, fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb, or spice; provided, however, that a Tobacco Product shall not be determined to have a Characterizing Flavor solely because of the use of additives or flavorings or the provision of ingredient information.

(c) “Common Area” means any Enclosed Area of Multiple Dwellings that residents are entitled to enter or use, including, for example, halls, lobbies and courtyards, elevators and stairs, community rooms and playgrounds, gym facilities and swimming pools, parking garages, shared restrooms, shared laundry rooms, shared cooking areas, and shared eating areas.

(d) “Dwelling Unit” means independent living quarters as defined in Chapter 17 of the Piedmont Municipal Code.

(e) “Electronic Smoking Device” means an electronic and/or battery-operated device, the use of which may resemble smoking, which can be used to deliver an inhaled dose of nicotine or other substances. “Electronic Smoking Device” includes any such electronic smoking device, whether manufactured, distributed, marketed, or

Offenses-Miscellaneous sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, vapor cigarette or any other product name or descriptor. “Electronic smoking device” does not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product and is being marketed and sold solely for that approved use in the mitigation, treatment, or prevention of disease.

(f) “Employee” means any Person who is employed or retained as an independent contractor by any Employer or Nonprofit Entity in consideration for direct or indirect monetary wages or profit, or any Person who volunteers his or her services for an Employer or Nonprofit Entity.

(g)
“Employer” means any Business or Nonprofit Entity that retains the service of one or more Employees.

(h) “Enclosed Area” means any covered or partially covered area having more than fifty (50) percent of its perimeter walled or otherwise closed to the outside (for example, a covered porch with more than two walls) irrespective of whether said overhead covering, walls or other vertical boundaries include vents or other openings.

(i) “Flavored Tobacco Product” means any Tobacco Product that imparts a Characterizing Flavor.

(j) “Multiple Dwelling” means a residential structure containing more than one dwelling unit as defined in Chapter 17 of the Piedmont Municipal Code. Multiple Dwelling does not include a single-family home or a single-family home with a detached or attached in-law or second unit.

(k) “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 article.

(l) “Outdoor Dining Area” means an unenclosed area that is open to the general public, or closed to the public for a private function, where food and/or beverages are offered, served, or consumed, regardless of whether compensation is offered or given in exchange. Outdoor dining areas do not include any unenclosed dining area at a private residence.

(m) “Person” means any natural person.

(n) “Place of Employment” means any area under the legal or de facto control of an

Offenses-Miscellaneous Employer that an Employee or the general public may have cause to enter in the normal course of the operations, regardless of the hours of operation, and includes a private residence licensed as family day care home under California law, but does not otherwise include single-family properties. Place of Employment includes schools, preschools and day care centers.

(o) “Public Place” means any place, publicly owned, with the exception of streets, sidewalks or rights of way, which is open to the general public regardless of any fee or age requirement.

(p) “Reasonable Distance” means a distance of twenty (20) feet in any direction from an area in which Smoking is prohibited.

(q) “Recreational Area” means an area that is owned, controlled or used by the City of Piedmont and is 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 parks, picnic areas, playgrounds, sports fields, walking paths, gardens, hiking trails, bike paths, swimming pools, and skateboard parks.

(r) “School Site Buffer Area” means the public rights-of-way adjacent to any property used as a school for the K-12 education of minors from the property line of the school to the nearest curb.

(s) “Service Area” means the reasonable distance area of any publicly or privately owned area 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, casual carpool line, or mobile vendor lines.

(t) “Single Family Dwelling” or “Single Family Residence” means a residential structure containing one dwelling unit as defined in Chapter 17 of the Piedmont Municipal Code. Single Family Dwelling includes a single-family home with an approved detached or attached in-law or second unit.

(u) “Single Family Property” means a residential lot containing a Single Family Dwelling as defined above.

(v) “Smoke” means the gases, or 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 material contains no tobacco or nicotine 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 and marijuana smoke.

Offenses-Miscellaneous

(w) “Smoking” means inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, or pipe, or any other lighted or heated tobacco or plant product intended for inhalation, in any manner or in any form. “Smoking” also includes the use of an electronic smoking device which creates a vapor or aerosol, in any manner or in any form.

(x) “Tobacco Product” means:

(1) Any product containing, made or derived from tobacco or contains nicotine from any source that is intended for human consumption, whether smoked, 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, snus; and

(2) Any electronic device that delivers nicotine and other substances to the person inhaling from the device, including but not limited to an electronic cigarette, cigar, pipe, or hookah;

(3) Notwithstanding any provision of subsections (a) and (b) 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 and is being marketed and sold solely for that approved purpose.

(y) “Tobacco Retailer” means any Person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco, Tobacco Products or Tobacco Paraphernalia.

(z) “Tobacco Retailing” shall mean the doing of any of these things. This definition is without regard to the quantity of Tobacco Products or Tobacco Paraphernalia sold, offered for sale, exchanged, or offered for exchange.

(aa) “Unenclosed Area” means any area that is not an Enclosed Area. (Ord. 755 N.S., 10/2022)

(a) Smoking is prohibited in the Enclosed Areas of the following places within the City of Piedmont, except places where Smoking is already prohibited by state or federal law, in which case those laws apply:

(1)
Places of Employment;

(2) Public Places, except for outdoor unenclosed areas at the Piedmont

Offenses-Miscellaneous Community Hall that are used for private purposes under a rental or lease agreement with the City, provided that the area is more than 20 feet from any entry to the Community Hall; and

(3) Common Areas of Multiple Dwellings

(b)
Any places exempted by the California smokefree workplace law (Labor Code section 6404.5(d)) except as provided below.

(1) Single Family Dwellings and Single Family Properties;

(2) Smoking at theatrical production sites 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. 715 N.S., 12/14)

(a) Smoking is prohibited in the Unenclosed Areas of the following places within the City of Piedmont, except places where Smoking is already prohibited by state or federal law, in which case those laws apply:

(1) Recreational Areas, except for outdoor unenclosed areas that are used for private purposes under a rental or lease agreement with the City;

(2)
Outdoor Dining Areas;

(3) Places of Employment;

(4)
Common Areas of Multiple Dwellings, provided that a Person or Business with legal control over a Common Area may designate a portion of the Unenclosed Area of the Common Area as a designated Smoking area if the area meets all of the following criteria:

a.
the area must be located a Reasonable Distance from any Enclosed Area where Smoking is prohibited by this article or other law; by binding agreement relating to the ownership, occupancy, or use of real property; or by designation of a Person or Business with legal control over the property. In the case of a nonsmoking area created by agreement or designation, this provision does not apply unless the Person or Business designating the Smoking area has actual knowledge of, or has been given notice of, the agreement or designation. A Person or Business with legal control over a designated Smoking area may be obliged to modify, relocate or eliminate that as laws change, as binding agreements are created,

Offenses-Miscellaneous and as nonsmoking areas on neighboring property are established.

b. the area must not include, and must be a Reasonable Distance from, Unenclosed Areas primarily used by children and Unenclosed Areas with improvements that facilitate physical activity including, for example, playgrounds, tennis courts, swimming pools, school campuses, and sandboxes;

c. the area must be completely within an Unenclosed Area; and

d. the area must not overlap with any Enclosed or Unenclosed Area in which Smoking is otherwise prohibited by this article or other provisions of this Code, state law, or federal law; and

(5) Other Public Places, when being used for a public event, including but not limited to a farmers’ market, parade, craft fair, festival, or any other event open to the general public, provided that Smoking is permitted on streets and sidewalks used only as pedestrian or vehicular thoroughfares;

(6) Service Areas;

(7) School Site Buffer Areas.

(b) Nothing in this article prohibits any Person, Business, Employer, or Nonprofit Entity 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. 715 N.S., 12/14)

(a) Except as otherwise exempted or excepted under this Article, smoking in all Unenclosed Areas of public places shall be prohibited within a Reasonable Distance from any doorway, window, or vent into an Enclosed Area in which Smoking is prohibited, except while the Person Smoking is actively passing on the way to another destination and provided Smoke does not enter any Enclosed Area in which Smoking is prohibited.

(b) Smoking in Unenclosed Areas shall be prohibited within a Reasonable Distance from any Unenclosed Areas in which Smoking is prohibited under Sec. 12.3 of this article, except while the Person Smoking is actively passing on the way to another destination and provided Smoke does not enter any Unenclosed Area in which Smoking is prohibited.

(c) The prohibitions in subdivisions (a) and (b) shall not apply to Unenclosed Areas of private residential properties that are not Multi-Unit Residences. (Ord. 715 N.S., 12/14)

Offenses-Miscellaneous

No person, business, tobacco retailer, or any other legal entity, shall sell or offer for sale, or possess with intent to sell or offer for sale, any flavored tobacco product.

(a) Presumptions for flavored tobacco products. There shall be a rebuttable presumption that a tobacco product is a flavored tobacco product if a tobacco retailer, manufacturer, or any employee or agent of a tobacco retailer or manufacturer has:

(1) Made a public statement or claim that the tobacco product imparts a Characterizing Flavor.

(2) Used text and/or images on the tobacco product's labeling or packaging to explicitly or implicitly indicate that the tobacco product imparts a Characterizing Flavor, including, but not limited to, use of descriptive terms such as “sweet” or “spicy” that imply a Characterizing Flavor; or

(3)
Taken action directed to consumers that would be reasonably expected to cause consumers to believe the tobacco product imparts a Characterizing Flavor. (Ord. 755 N.S., 10/2022)

Violations of Sections 12.26 through 12.29 of this Article shall be an infraction. The City Council shall set the fine for violations from time to time by resolution. (Ord. 755 N.S., 10/2022)

Rev. 2022-10-19 (Ordinance 755 N.S.)

Lost, Stolen, Confiscated or Abandoned Property 12A-1