San Bernardino Municipal Code Ch. 8.97 Smoking Cannabis in Public Places

The purpose of this chapter is to protect the good health and well-being of the residents of the city from the documented negative effects of secondhand cannabis smoke. Smoke-free air is an important component of a healthy community. The Mayor and City Council intend to protect the public health, safety and welfare by providing a secondhand cannabis smoke-free environment in public and private places where non-cannabis smokers may be exposed to secondhand cannabis smoke. The Mayor and City Council further intend to promote secondhand cannabis smoke-free air, recognizing the need to breathe smoke-free air has a priority over the desire to smoke cannabis. This chapter is not intended to interfere with a patient’s right to use medicinal cannabis pursuant to state law, as may be amended, nor does it criminalize cannabis possession or use otherwise authorized by state law.

(Ord. MC-1465, passed 3-7-2018)

Nothing in this chapter shall be construed to allow any conduct or activity relating to the cultivation, distribution, dispensing, sale or consumption of cannabis that is otherwise illegal under local or state law. No provision of this title shall be deemed a defense or immunity to any action brought against any person by the County District Attorney’s office, the Attorney General of the state or the United States. This chapter shall be applicable in the incorporated areas of the city and in all city buildings, whether owned, leased or controlled by the city, and on all city campuses.

(Ord. MC-1465, passed 3-7-2018)

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

BUSINESS. Any sole proprietorship, partnership, limited liability company, joint venture, corporation, association or other entity formed for profit-making purposes or for non-profit charitable, religious, philanthropic, educational, political, social or similar purposes. A government agency is not a BUSINESS within the meaning of this chapter.

CANNABIS. All parts of the plant Cannabis sativa Linnaeus, Cannabis indica or Cannabis ruderalis, or any other strain or varietal of the genus CANNABIS that may exist or be discovered or developed that has psychoactive or medical properties, whether growing or not, including, but not limited to, 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 also means cannabis, as defined by Cal. Health and Safety Code, § 11018 and Cal. Business and Professions Code, § 26001(f), as both may be amended from time to time. Any reference to CANNABIS or CANNABIS PRODUCTS shall include medical and non-medical cannabis and medical and non-medical cannabis products unless otherwise specified. CANNABIS or CANNABIS PRODUCT does not mean industrial hemp, as defined by Cal. Health and Safety Code, § 11018.5, or the weight of any other ingredient combined with CANNABIS to prepare topical or oral administrations, food, drink or other product. 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.

CANNABIS CONCENTRATE. Cannabis that has undergone a process to concentrate one or more active cannabinoids, thereby increasing the product’s potency. Resin from granular trichomes from a cannabis plant is a concentrate for purposes of this chapter. A CANNABIS CONCENTRATE is not considered food, as defined by the Cal. Health and Safety Code, § 109935, or drug, as defined by the Cal. Health and Safety Code, § 109925.

CANNABIS PARAPHERNALIA. Any item designed for the consumption, use or preparation of cannabis or cannabis product.

CANNABIS PRODUCT.

(1) (a) Any product containing, made or derived from cannabis or cannabis products that is intended for human consumption, whether smoked, heated, absorbed, dissolved, inhaled, snorted, sniffed or ingested by any other means, including, but not limited to, cigarettes, cigars, bongs, blunts, pipes; and

(b) Any electronic smoking device.

(2) Notwithstanding any provision of divisions (1)(a) and (1)(b) to the contrary, CANNABIS PRODUCTS includes any component, part or accessory of a cannabis product, whether or not sold separately.

CITY. The City of San Bernardino, a charter city in the State of California.

CITY CAMPUS. Enclosed areas and unenclosed areas under the legal control of the city, including property that is owned, leased or maintained by the city or governed by the Mayor and City Council.

DINING AREA. Any area which is available to or customarily used by the general public or an employee and which is designed, established or regularly used for consuming food or drink.

ELECTRONIC SMOKING DEVICE. An electronic device that can be used to deliver an inhaled dose of cannabis, cannabis oils or other substances, including any component, part or accessory of such a device, whether or not sold separately. ELECTRONIC SMOKING DEVICE 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, vaping pens or any other product name or descriptor.

EMPLOYEE. Any natural person who is employed or retained as an independent contractor by any employer in consideration for direct or indirect monetary wages or profit, or any natural person who volunteers his or her services for an employer.

EMPLOYER. Any business with one or more employees.

ENCLOSED AREA. An area in which outside air cannot circulate freely to all parts of the area, and includes an area that has:

(1) Any type of overhead cover and at least three walls or other vertical constraint to airflow; or

(2) Four walls or other vertical constraints to airflow.

PERSON. Any natural person, business, personal representative, receiver, trustee, assignee or any other legal entity.

PLACE OF EMPLOYMENT. Any area under the legal or de facto control of an employer that an employee or the general public may have cause to enter in the normal course of operations, regardless of the hours of operation.

PROHIBITED SMOKING AREA. A designated portion of an unenclosed area where cannabis smoking is prohibited. Cannabis smoking shall be prohibited within 1,000 feet of any of the following:

(1) Any school (k-12) regardless if it is a public, private or charter school;

(2) Daycare center, as defined in the Cal. Health and Safety Code, § 1596.76;

(3) Youth center, as defined in the Cal. Health and Safety Code, § 11353.1;

(4) Any library, park, bicycle paths or area in which the primary purpose is used for minors; and

(5) Any alcohol rehabilitation center or substance abuse facility.

PUBLIC PLACE. Any place, publicly or privately owned, 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.

RECREATIONAL AREA. Any area that is owned, controlled or used by the city and open to the general public for recreational purposes, regardless of any fee or age requirement. RECREATIONAL AREA includes, but is not limited to, parks, picnic areas, playgrounds, sports fields, walking paths, gardens, hiking trails, bike paths, riding trails, swimming pools, skateboard parks and amusement parks. RECREATIONAL AREA does not include golf courses.

SERVICE AREA. Any publicly or privately owned area 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. SERVICE AREA includes, but is not limited to, areas including or adjacent to information kiosks, automatic teller machines, ticket lines, bus stops or shelters, mobile vendor lines or cab stands.

SMOKE. The gases, oils, 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 or vaporizing material contains no tobacco, cannabis, cannabis oils or nicotine and the purpose of inhalation is solely olfactory, such as SMOKE from incense. SMOKE includes, but is not limited to, tobacco smoke, electronic smoking device vapors and cannabis smoke.

SMOKING. Inhaling, exhaling, burning or carrying any ignited, heated or activated cigar, cigarette, cigarillo, pipe, hookah, electronic smoking device or any plant product intended for human inhalation, including, but not limited to, cannabis or cannabis products.

UNENCLOSED AREA. Any area that is not an enclosed area.

(Ord. MC-1465, passed 3-7-2018)

(A) The city shall enforce the state Smoke-free Workplace Law (Cal. Labor Code, § 6404.5), which prohibits smoking in enclosed places of employment, in all areas subject to this chapter.

(B) In addition, all cannabis smoking and the inhaling of cannabis products are prohibited in the enclosed areas of the following places:

(1) All businesses that are not places of employment and which have a common or shared air space with an enclosed area, such as, without limitation, openings, cracks, air ventilation systems, doorways, hallways and stairways, in which smoking is prohibited by law. Notwithstanding any other provision of this chapter, the fact that cannabis smoke enters one enclosed area from another enclosed area is conclusive proof that the areas share a common or shared air space;

(2) Public places, as defined in § 8.97.030; and

(3) Any area within 50 feet of any door, window, opening or vent into a public place, dining area, service area or recreational area, except for such areas on private residential property.

(Ord. MC-1465, passed 3-7-2018)

Smoking and inhaling of cannabis products are prohibited in the unenclosed areas of the following places, as defined in § 8.97.030:

(A) Dining areas;

(B) Public places;

(C) Recreational areas;

(D) Service areas; and

(E) Places of employment.

(Ord. MC-1465, passed 3-7-2018)

(A) Smoking and inhaling of cannabis products are prohibited in all vehicles leased, owned or operated by the city or any district governed by the city.

(B) Smoking and the use of cannabis or cannabis products are prohibited in all enclosed areas and unenclosed areas of a city campus.

(A) Smoking and inhaling of cannabis in all unenclosed areas is prohibited within 50 feet from any enclosed or unenclosed areas in which smoking is prohibited.

(B) A private property or business owner may authorize a designated smoking area in an unenclosed area of his or her private property.

(Ord. MC-1465, passed 3-7-2018)

(A) A person who owns, manages, operates or otherwise controls the use of any place where cannabis smoking is prohibited by this chapter may not knowingly or intentionally permit cannabis smoking in those places. For purposes of this section, a person has acted knowingly or intentionally if the person has not taken the following actions to prevent cannabis smoking by another person:

(1) Requested that a person who is smoking refrain from cannabis smoking in the prohibited place; and

(2) Requested that a person who is smoking cannabis leave the prohibited place if the person refuses to stop smoking in the prohibited place after being asked to stop. This section does not require physically ejecting a person from a place or taking steps to prevent smoking under circumstances that would involve risk of physical harm.

(B) No person shall intimidate, harass or otherwise retaliate against any person who seeks compliance with this section. Moreover, no person shall intentionally or recklessly expose another person to cannabis smoke in response to that person’s effort to achieve compliance with this section.

(Ord. MC-1465, passed 3-7-2018)

(A) No employer or business doing business with the city and within the city shall knowingly or intentionally permit cannabis smoking or inhaling in an area which is under the employer’s or business’s control and in which cannabis smoking is prohibited.

(B) No person shall litter or dispose of cannabis packaging or cannabis products waste within the boundaries of an area in which cannabis smoking or cannabis products is prohibited except into a waste receptacle or ash can.

(C) No person, employer or business shall intimidate or threaten or effect any reprisal against another person for the purpose of retaliating against that person for seeking to obtain compliance with this chapter.

(Ord. MC-1465, passed 3-7-2018)

A person, employer or business that has legal or de facto control of an area in which cannabis smoking, or the use of cannabis products is prohibited by this chapter shall post a clear, conspicuous and unambiguous “no smoking and no vaping” or “smoke-free” sign at each point of ingress to the area, and in at least one other conspicuous point within the area. The signs will have letters of no less than one inch in height and shall include the international “no smoking and no vaping” symbol (consisting of a pictorial representation of a burning cigarette, cannabis leaf and e-cigarette enclosed in a red circle with a red bar across it). Signs posted on the exterior of buildings to comply with this section shall include the reasonable distance requirement set forth in § 8.97.070. At least one sign with a city phone number to be determined by the Director of Community Development and Housing and made available on the Department’s website which complaints can be directed must be placed conspicuously in each place in which cannabis smoking is prohibited. The Department of Community Development and Housing shall be responsible for providing appropriate signs in public facilities controlled by the city. Notwithstanding this section, the presence or absence of signs shall not be a defense to a charge of cannabis smoking or the use of cannabis products in violation of any other provision of this chapter.

(Ord. MC-1465, passed 3-7-2018; Ord. MC-1625, passed 2-21-2024)

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

(Ord. MC-1465, passed 3-7-2018)

It is not the intention of this chapter to regulate any conduct where the regulation of such conduct has been preempted by the state.

(Ord. MC-1465, passed 3-7-2018)

Each and every violation of the provisions of this chapter is deemed unlawful and a public nuisance.

(Ord. MC-1465, passed 3-7-2018)

Each and every violation of this chapter shall constitute a separate violation and shall be subject to all remedies and enforcement measures authorized by the city.

(Ord. MC-1465, passed 3-7-2018)

Any person causing, permitting, aiding, abetting, suffering or concealing a violation of this chapter shall be guilty of a misdemeanor, and may, in the discretion of the City Attorney, be prosecuted as a misdemeanor and, upon conviction, be subject to a fine not to exceed $1,000 or imprisonment in the city or county jail for a period of not more than six months, or by both such fine and imprisonment. The City Attorney, in his or her sound discretion, may prosecute a violation of this chapter as an infraction, rather than a misdemeanor, or reduce or agree to the reduction of a previously filed misdemeanor to an infraction. Any person convicted of an infraction under the provisions of this chapter shall be punished by a fine not exceeding $100 for the first violation, a fine not exceeding $200 for a second violation within one year and a fine not exceeding $500 for a third and subsequent violations within one year. A fourth violation of this chapter within one year shall be charged as a misdemeanor and may not be reduced to an infraction.

(Ord. MC-1465, passed 3-7-2018)

The remedies provided herein are not to be construed as exclusive remedies. The city is authorized to pursue any proceedings or remedies provided by law or equity.

(Ord. MC-1465, passed 3-7-2018)