Pleasanton Municipal Code Ch. 9.26 Restrictions on Smoking in Multifamily Rental Apartments

The Centers for Disease Control and Prevention have documented that secondhand smoke causes thousands of deaths from lung cancer and heart disease. The U.S. Surgeon General has concluded that there is no risk-free level of exposure to secondhand smoke. In addition to the health risks posed by secondhand tobacco and marijuana smoke, aerosol and vapors emitted from electronic smoking devices contain chemicals that have been identified as a health hazard.

The city finds that nonsmokers who live in multifamily rental apartments can be exposed to neighbors' secondhand smoke, and that it is in the interest of public health and safety to restrict smoking in multifamily rental apartments.

(Ord. 2164 § 3, 2017)

This chapter shall apply within to all units in multifamily rental apartments and their common areas.

(Ord. 2164 § 3, 2017)

The following words and phrases, whenever used in this chapter, shall be defined as follows:

"Common area"

means every enclosed area or unenclosed area of a multifamily rental apartment where residents of more than one unit are entitled to enter or use, including, but not limited to, halls, paths, lobbies, courtyards, elevators, stairs, community rooms, playgrounds, gym facilities, swimming pools, parking garages and parking lots, restrooms, laundry rooms, cooking areas, and eating areas.

"Electronic smoking device"

means an electronic cigarette or a similar device, including, but not limited to, a device intended to simulate smoking, which permits a person to inhale vapors or aerosols that may or may not contain nicotine.

"Enclosed area"

means an area enclosed by a roof and walls on all sides with appropriate openings for ingress and egress, windows and ventilation.

"Landlord"

means any person who owns property containing a multifamily rental apartment, any person who lets units in a multifamily rental apartment (except a landlord does not include a tenant who sublets a unit), and any person who manages a multifamily rental apartment.

"Multifamily rental apartment"

means, except as specifically excluded below, any residential property containing two or more units with one or more shared or abutting walls, floors, ceilings or shared ventilation systems; where the units are all under common ownership and management; and at least two of the units are leased. A "multifamily rental apartment" does not include any of the following types of residential properties:

Property owned by the state or federal government;

A residential care facility or assisted living facility governed by federal or state community care licensing regulations;

A detached single-family residence;

A detached single-family home with a detached or attached in-law, second units or accessory dwelling unit;

A common interest development;

A hotel or motel;

A mobile home park.

"Nonsmoking area"

means any enclosed area or unenclosed area in which smoking is prohibited by: (1) this chapter or other law; (2) by binding agreement relating to the ownership, occupancy, or use of real property; or (3) by designation of a person with legal control over the area.

"Person"

means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity, including government agencies.

"Smoke"

means any vapors, gases, particles or other by-products 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 igniting or vaporizing material both contains no tobacco or nicotine and the usual purpose of inhalation is solely olfactory such as with the burning of incense. Smoke specifically includes, but is not limited to, gases, particles, vapors or other by-products released by electronic smoking device, tobacco cigarettes, herbal cigarettes, marijuana cigarettes and any other type of cigarette, pipe or other implement for the purpose of inhalation of vapors, gases, particles or other by-products released as a result of combustion or ignition or vaporization.

"Smoking" or "to smoke"

means inhaling, exhaling, burning or carrying any lighted, heated or ignited cigar, cigarette, cigarillo, pipe, hookah, electronic smoking device or paraphernalia; or engaging in an act that generates smoke; or lighting or igniting a pipe, a hookah pipe, a cigar, or a cigarette of any kind including, but not limited to, an electronic cigarette.

"Tobacco" or "nicotine product"

means any substance containing tobacco leaf, including, but not limited to, cigarettes, cigars, pipe tobacco, hookah tobacco, or any other preparation of tobacco; and any electronic cigarette or other electronic device used to generate smoke; 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, but does not include any cessation product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco dependence.

"Unenclosed area"

means any area that is not an enclosed area.

"Unit"

means a personal dwelling space for one or more persons at a multifamily rental apartment, and includes any associated exclusive use enclosed area or unenclosed area, such as, for example, a private balcony, porch, deck, or patio.

(Ord. 2164 § 3, 2017)

A. Beginning 180 days after the effective date of the ordinance codified in this chapter, smoking is prohibited in:

1. All units in multifamily rental apartments;

2. Any exclusive use enclosed area or unenclosed area, such as, for example: a private balcony, porch, deck or patio of all multifamily rental apartments;

3. All unenclosed common areas and enclosed common areas; and

4. Within 25 horizontal or vertical feet from any door, window, opening, air intake system or vent of a unit, any exclusive use enclosed area or unenclosed area of a unit, or any enclosed common area or unenclosed common area of a multifamily rental apartment.

B. Notwithstanding subsection A of this section:

1. This chapter shall not apply to persons who as of the effective date of the ordinance codified in this chapter had an existing lease for a unit in a multifamily rental apartment until the expiration of the current term of that lease, which shall not exceed one year.

2. A person with legal control over a common area may designate a portion of the common area as a designated smoking area provided that at all times the designated smoking area complies with Section 9.26.035.

3. When a person renting a unit provides written documentation sufficient for a landlord to determine that such person needs to smoke medical marijuana for medical or therapeutic purposes and no alternative means of ingestion or delivery are available, such person may smoke medical marijuana in a designated smoking area as provided in Section 9.26.035.

(Ord. 2164 § 3, 2017)

A designated smoking area:

A. Shall be an unenclosed and clearly delineated area, as described in this section;

B. Shall be located at least 25 horizontal and vertical feet from any door, window, opening, air intake system or vent of a unit, any exclusive use enclosed area or unenclosed area of a unit, or any enclosed common area or unenclosed common area of a multifamily rental apartment;

C. Shall have a clearly marked perimeter and be identified by conspicuous signs;

D. Shall have a receptacle designed for disposal of tobacco waste and shall be maintained generally free of tobacco related litter, including, but not limited to, cigarette butts; and

E. Shall not be more than 10 percent of the total square footage of unenclosed area of the multifamily rental apartment project.

(Ord. 2164 § 3, 2017)

Where smoking is prohibited under this chapter:

A. No person shall smoke in any nonsmoking area.

B. No person with legal control over any nonsmoking area shall knowingly permit smoking in any nonsmoking area that is under the person's control.

C. Persons who rent or occupy a unit in a multifamily rental apartment subject to this chapter have a duty to advise and require their invitees and guests to comply with this chapter.

D. No person shall intimidate or harass any person who seeks compliance with this chapter. No person shall intentionally or recklessly expose another person to smoke in response to that person's effort to achieve compliance with this chapter.

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

(Ord. 2164 § 3, 2017)

A. "No smoking" signs 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 at each of the following areas where smoking is prohibited by this chapter:

1. On the outside of each enclosed building of a multifamily rental apartment but only if the building contains six or more units;

2. At all enclosed common areas; and

3. At all unenclosed common areas with improvements that facilitate physical activity including playgrounds and swimming pools.

B. No signs are required by this chapter in any unit.

C. The signs required by this chapter shall be maintained by the landlord.

D. The absence of any sign required by this chapter shall not be a defense to a violation of this chapter.

E. The provisions of this section shall go into effect 180 days after the effective date of the ordinance codified in this chapter.

(Ord. 2164 § 3, 2017)

A. Every lease or other rental agreement for the occupancy of a unit in a multifamily rental apartment entered into, renewed, or continued month-to-month 180 days after the effective date of the ordinance codified in this chapter shall include the following:

1. A provision stating in substance that it is a material breach of the rental agreement for the tenant, or any other person subject to the control of the tenant or present by invitation or permission of the tenant, to: (a) smoke in any common area other than a designated smoking area; (b) smoke in a unit; or (c) violate any law regulating smoking anywhere on the property.

2. A clear description of all areas on the property where smoking is allowed or prohibited.

3. A provision expressly conveying third-party beneficiary status to all tenants and lawful occupants of the multifamily rental apartment as to the smoking provisions of the agreement.

B. Whether or not a landlord complies with subsection A of this section, the provisions required by that subsection shall be implied and incorporated by law into every rental agreement to which subsection A of this section applies and shall become effective as of the earliest possible date on which the landlord could have made the insertions pursuant to subsection A of this section.

C. This chapter shall not create liability in a landlord to any person for a tenant's breach of any smoking provision in a rental agreement for the occupancy of a unit in a multifamily rental apartment if the landlord has fully complied with subsection A of this section.

D. A tenant who breaches the smoking regulations of a rental agreement or knowingly allows another person to do so shall be liable to the landlord and any occupant of the multifamily rental apartment who is exposed to secondhand smoke as a result of that breach.

E. 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. 2164 § 3, 2017)

A. Any person who violates any provision of this chapter may be cited under Chapter 1.24 of this code.

B. This section is not intended to preclude or otherwise limit any other remedy available to the city by law or in equity, including remedies under Chapter 1.16 or 1.28 of this code.

C. Prior to city staff undertaking any enforcement action against a tenant of a unit subject to this chapter, the landlord shall demonstrate to city staff that the landlord has complied with the lease terms in Section 9.26.060, and the landlord shall provide documentation of landlord's actions to achieve a tenant's compliance with this chapter. City staff may reasonably require the landlord to first take enforcement action as allowed by the rental agreement for violating the provisions of this chapter before city staff proceed with any enforcement action.

(Ord. 2164 § 3, 2017)

Any person may bring a civil action in any court of competent jurisdiction, including small claims court, to enforce this chapter against any person who has violated this chapter. Upon proof of a violation, a court shall grant appropriate relief including awarding actual damages (including damages for emotional distress), injunctive relief, court costs and reasonable attorney's fees.

(Ord. 2164 § 3, 2017)

A. This chapter is restrictive only. This chapter establishes no new rights for a person who engages in smoking. Notwithstanding: (1) any provision of this chapter or other provisions of this code; (2) any failure by any person to restrict smoking under this chapter; or (3) any explicit or implicit provision of this code that allows smoking in any place, nothing in this code shall be interpreted to limit any person's legal rights under other laws with regard to smoking, including, for example, rights in nuisance, trespass, property damage, and personal injury or other legal or equitable principles. This chapter is intended and shall be interpreted to be consistent with and at least as stringent as any state statute prohibiting smoking in any unit, common area or other area of a multifamily rental apartment.

B. If any provision of this chapter or the application thereof is held to be preempted, unconstitutional or otherwise invalid by a court of competent jurisdiction, such ruling shall not affect any other provision of this chapter that is not specifically included in such ruling or that can be given effect without the preempted, unconstitutional, or invalid provision or application; and to this end, the provisions of this chapter are declared severable.

(Ord. 2164 § 3, 2017)