Richmond Municipal Code Ch. 9.57 Prohibition of Smoking in and Around Multi-Unit Residences

Footnotes:

--- (9) ---

Editor's note— Ord. No. 24-11 N.S., § 2, adopted Dec. 6, 2011, amended Ch. 9.57 in its entirety to read as herein set out. Former Ch. 9.57, §§ 9.57.010—9.57.080, pertained to similar subject matter, and derived from Ord. No. 23-09 N.S., § 2, 7-21-2009.

For the purposes of this chapter, the following definitions shall govern unless the context clearly requires otherwise:

(a) "Landlord" means any person who owns property let for residential use, who lets residential property, or any person who manages such property, except that "landlord" does not include sublessors.

(b) "Multi-unit residence" means a premises that contains two (2) or more units.

(c) "Multi-unit residence common area" means any enclosed or unenclosed area of a multi-unit residence accessible to and usable by more than one residence, including but not limited to halls and pathways, lobbies, laundry rooms, common eating and cooking areas, play areas, swimming pools, and parking areas.

(d) "Person" means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity and including government agencies.

(e) "Premises" means a piece of land and any improvements upon it such as is usually described in a deed, deed of trust or mortgage. "Premises" includes legally separate but contiguous pieces of land that are owned by the same natural person or by legal persons under common control and, regardless of the form of ownership, includes all owner-occupied units in any case where two units are connected by one or more common walls.

(f) "Private enforcer" means any person, including a legal entity or organization, acting on behalf of its own interests, its members, or the general public, who may bring a civil action to enforce this chapter.

(g) "Reasonable distance" means a distance of at least twenty-five (25) feet in any direction from an area in which smoking is prohibited. This distance should be reasonably sufficient to ensure that occupants of an area in which smoking is prohibited are not exposed to secondhand smoke created by smokers outside the areas.

(h) "Smoking" or to "smoke" means possessing a lighted pipe, lighted cigar, or lighted cigarette of any kind, including, but not limited to, tobacco, or any other weed or plant, or the lighting of a pipe, cigar, or cigarette of any kind, including, but not limited to, tobacco, or any other weed or plant.

(i) "Unit" means: (1) a dwelling space consisting of essentially complete independent living facilities for one or more individuals, including, for example, permanent provisions for living and sleeping, and any private outdoor spaces like balconies and patios; and (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" 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. 24-11 N.S., § 2, 12-6-2011)

(a) Smoking is prohibited in all multi-unit residence common areas except that a person with legal control over a multi-unit residence common area, such as, for example, a landlord or homeowners' association, may designate a portion of the outdoor area of the premises as a smoking area as provided in paragraph (b) below.

(b) A designated smoking area:

(1) Must be located a reasonable distance from any indoor area where smoking is prohibited by this chapter or other law unless 25 feet is not feasible;

(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 twenty-five percent (25%) 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 area in which smoking is otherwise prohibited by this chapter or other provisions of this Code, state law, or federal law.

(Ord. No. 24-11 N.S., § 2, 12-6-2011)

(a) New Multi-Unit Residences. In every new multi-unit residence that receives a certificate of occupancy after the effective date of this chapter, one hundred percent (100%) of the units (including private outdoor spaces associated with such units, such as balconies, patios and decks), shall be non-smoking units by law.

(1) Required Lease Terms. Every lease or other agreement for the occupancy of a unit in a new 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 regulating smoking while on the premises; (ii) smoke in the unit; or (iii) smoke in any multi-unit residence common area in which smoking is prohibited; and

c. A clause stating that all occupants of the multi-unit residence are express third-party beneficiaries of the above required clauses.

(2) The California Apartment Association's Form 34.0, revised 1/07, meets the requirements for lease terms as outlined and is an option for use to comply with this section.

(b) Existing Multi-Unit Residences. In every multi-unit residence existing on the effective date of this chapter, not subject to subsection (a) above, one hundred percent (100%) of the units (including private outdoor spaces associated with such units, such as balconies, patios, and decks), shall by law be non-smoking units by January 1, 2011. A person with legal control over a multi-unit residence, such as, for example, a landlord or homeowners' association, may make units non-smoking prior to January 1, 2011. This provision applies equally to owner-occupied units in a multi-unit residence. Affected home owners' associations shall be responsible for enforcing this provision in the same manner as provisions of said home owner's association rules and regulations.

(1) Required Lease Terms. By January 1, 2011, every lease or other agreement for the occupancy of a unit in an existing multi-unit residence shall include:

a. A clause stating the 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 regulating smoking while on the premises; (ii) smoke in the unit; or (iii) smoke in any multi-unit residence common area in which smoking is prohibited; and

c. A clause stating that all occupants of the multi-unit residence are express third-party beneficiaries of the above required clauses.

(2) The California Apartment Association's Form 34.0, revised 1/07, meets the requirements for lease terms as outlined and is an option for use to comply with this section.

(c) The lease or agreement terms required by subsection (a) and (b) are hereby incorporated by 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 this section and which does not fully comply with subsection (a) or (b).

(d) A tenant who breaches the smoking regulations of a lease or knowingly allows another person to do so shall be liable to: (i) the landlord; and (ii) any 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 the requirements of this chapter.

(e) 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.

(Ord. No. 24-11 N.S., § 2, 12-6-2011)

Every person with legal control over a multi-unit residence, such as, for example, a landlord or homeowners' association, shall maintain a diagram that illustrates the precise location and configuration of the designated smoking area. This diagram shall accompany every lease or other agreement for the occupancy of a unit in a multi-unit residence after January 1, 2011.

(Ord. No. 24-11 N.S., § 2, 12-6-2011)

(a) Smoking is prohibited in any non-smoking area of a multi-unit residence established by this chapter or other law.

(b) No person shall knowingly permit smoking in an area of the premises 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 provided, however, that this prohibition does not apply to a person who is already compelled to act under state or federal law.

(c) 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 non-smoking area.

(d) "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 crossed by a red bar) shall be clearly and conspicuously posted in multi-unit residence common areas, at every entrance and exit, and on every floor near the elevator bank where smoking is prohibited by this chapter or other law. Such signs shall be maintained by the person or persons with legal control over the multi-unit residence common areas and entrances and exits. Signs must be posted in sufficient numbers and locations in the multi-unit residence common areas and at entrances and exits to make areas where smoking is prohibited obvious to a reasonable person. Signs are not required at the individual entrance and exits of each multi-unit residence. The absence of signs shall not be a defense to a violation of any provision of this chapter.

(e) This chapter shall not create additional liability for a landlord for a person's violation of this chapter provided that the landlord has fully complied with the required disclosure, sign posting, and other provisions of this chapter.

(f) The provisions of this chapter are restrictive only and establish no new rights for a smoker.

(g) Notwithstanding any provision of this chapter or other provisions of this Code or failure to restrict smoking under this chapter including any explicit or implicit provision that allows smoking, nothing in this chapter shall operate to limit any person's legal rights under other laws with regard to smoking, including, for example, claims of nuisance, trespass, property damage, and personal injury.

(h) The City Manager or his or her designee shall disseminate annually a brochure discussing the prohibitions and duties associated with this chapter.

(Ord. No. 24-11 N.S., § 2, 12-6-2011)

Notwithstanding any other provision of this chapter, smoking marijuana for medical purposes as permitted by California Health and Safety Code sections 11362.7 et seq. in any unit of a multi-unit residence is not prohibited by this chapter, provided that the marijuana smoke is not reasonably detectable. The City shall only enforce this section if: (1) a complaint is made by a resident of the multi-unit building that the marijuana smoke is detectable to him or her; and (2) the marijuana smoke is also detectable to a police officer. If the marijuana smoke is not detectable by the officer, this subsection does not preclude the resident from taking private enforcement action as provided in Section 9.57.080. Notwithstanding the forgoing, such use of marijuana may be prohibited by other provisions of this Code, state law, or federal law.

(Ord. No. 24-11 N.S., § 2, 12-6-2011)

(a) Each violation of this chapter by a person because of the person's smoking is subject to a minimum infraction fine of $100 for the first offense provided the offense is witnessed by a peace officer as required by state law governing infractions. Other violations of this chapter may, in the sole discretion of the City Attorney, be prosecuted as infractions or misdemeanors when the interests of justice so require. Enforcement of this chapter shall be the responsibility of the City Manager or his or her designee. In addition, any peace officer or code enforcement official may also enforce this chapter.

(b) Violations of this chapter are subject to a civil action brought by the City of Richmond, punishable by civil penalties as set forth in Section 1.04.150 of this Code.

(c) No person shall intimidate, harass, or otherwise retaliate against any person who seeks compliance with this chapter. Moreover, no person shall intentionally or recklessly expose another person to smoke in response to that person's effort to achieve compliance with this chapter. Violation of this subsection shall constitute a misdemeanor.

(d) A violation of this chapter is hereby declared to be a public nuisance.

(e) In addition to other remedies provided by this chapter, or otherwise available at law, the City may elect to remedy any violation of this chapter by the, administrative citations, civil and criminal proceedings, or any combination thereof, as authorized by the City Charter and Sections 1.04.100, 1.04.110, 1.04.160 and 2.62 of this Code.

(Ord. No. 24-11 N.S., § 2, 12-6-2011)

(a) A private enforcer may bring a civil action to enforce this chapter. Upon proof of a violation, a court shall award the following:

(1) Damages in the amount of either:

(i) Upon proof, actual damages; or

(ii) With insufficient or no proof of damages, $500 for each violation of this chapter (hereinafter "statutory damages"). Unless otherwise specified in this chapter, each day of a continuing violation shall constitute a separate violation. Notwithstanding any other provision of this chapter, no private enforcer suing on behalf of the general public shall recover statutory damages based upon a violation of this chapter if a previous claim brought on behalf of the general public by a private enforcer or the City for statutory damages and based upon the same violation has been adjudicated, whether or not the private enforcer was a party to that adjudication.

(2) Exemplary damages, where it is proven by clear and convincing evidence that the defendant is guilty of oppression, fraud, malice, retaliation, or a conscious disregard for the public health.

(b) The private enforcer may also bring a civil action to enforce this chapter by way of a small claims action or a complaint for injunctive relief. Upon proof of a violation in an action for injunctive relief, a court shall issue a permanent injunction requiring the violator(s) to comply with the ordinance section(s) shown to have been violated and to permanently refrain from any actions in violation of the ordinance. The injunction may be both mandatory and prohibitory.

(c) Nothing in this chapter prohibits a private enforcer from bringing a civil action in small claims court to enforce this chapter, so long as the amount in demand and the type of relief sought are within the jurisdictional requirements set forth in California Code of Civil Procedure section 116.220.

(Ord. No. 24-11 N.S., § 2, 12-6-2011)