San Fernando Municipal Code Ch. 24 Prohibition of Smoking in Multi-Unit Housing

This chapter protects the public from nonconsensual exposure to secondhand smoke in and around their homes by prohibiting smoking in certain locations of multi-unit housing. Exposure to secondhand smoke has been proven to cause adverse health effects including, but not limited to, cancer, cardiovascular disease, respiratory infections, asthma, and ear and nasal problems. The intent and purpose of prohibiting smoking at the identified locations is to protect the public health, safety, and welfare by reducing the number of locations in the City of San Fernando where exposure to secondhand smoke can occur.

(Ord. No. 1710, § II.1, 6-6-2022)

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

Common area means every enclosed area and unenclosed area of a multi-unit housing that residents of more than one unit are entitled to access, enter or use, including, but not limited to, lobbies, hallways, pathways, lobbies, courtyards, elevators, stairwells, laundry rooms, community rooms, restrooms or offices, entryways, playgrounds, gym facilities, swimming pool areas, parking garages/structures, parking lots, grassy or landscaped areas, walking paths, cooking areas, sitting areas and eating areas.

Common interest development means:

(1) A community apartment project as defined in California Civil Code § 4105, or any successor legislation;

(2) A condominium project as defined in California Civil Code § 4125, or any successor legislation;

(3) A planned development as defined in California Civil Code § 4175, or any successor legislation; and

(4) A stock cooperative as defined in California Civil Code § 4190, or any successor legislation.

Designated smoking area shall mean an area where smoking is permitted, as designated by a landlord, HOA or other person with legal control of the premises, and has been established in accordance with the provisions of this chapter.

Detached unit means a unit in a multi-unit housing that is completely detached from other structures and contains no shared common wall, floor or ceiling with an adjacent unit.

Electronic smoking device means any device that may be used to deliver any aerosolized or vaporized substance to the person inhaling from the device, including, but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah.

Enclosed area means all space between a floor and a ceiling that is bounded by walls, doorways, or windows, whether open or closed, covering more than 50 percent of the combined surface area of the vertical planes constituting the perimeter of the area. A wall includes any retractable divider, garage door, or other physical barrier, whether temporary or permanent.

Homeowners' association or HOA means an organization or entity established for the purpose of managing or maintaining a common interest development. A homeowners' association shall also mean "association" as defined in California Civil Code § 4080, or any successor legislation.

Landlord means any person or agent of a person who owns, manages, or is otherwise legally responsible for a unit in a multi-unit residence that is leased to a residential tenant. For purposes of this chapter, a tenant who sublets their unit (e.g., a sublessor) is not a landlord.

Multi-unit housing means a residential property containing two or more units, including, but not limited to, apartment buildings, common interest developments, senior and assisted living facilities, and long-term health care facilities.

For purposes of this chapter the definition of multi-unit housing does not include the following:

(1) A hotel or motel that meets the requirements of California Civil Code § 1940(b)(2);

(2) A mobile home park;

(3) A single-family home, except if used as a health care facility subject to licensing requirements; and

(4) A single-family home with an attached or detached accessory dwelling unit, junior accessory dwelling unit or second primary dwelling unit (Senate Bill 9 urban dwelling unit) permitted pursuant to California Government Code §§ 65852.1, 65852.2, 65852.21 or 65852.22 or an ordinance of the city adopted pursuant to those sections, except where one or more of the units is used as a health care facility subject to licensing requirements.

New lease means any lease or rental agreement that allows a person to occupy a unit that is entered into on or after July 7, 2022.

Nonsmoking area means enclosed or unenclosed area of a multi-unit housing in which smoking is prohibited by:

(1) This chapter or other law;

(2) Binding agreement relating to the ownership, occupancy, or use of real property; or

(3) 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.

Smoking means:

(1) Inhaling, exhaling, or burning, any tobacco, nicotine, cannabis, or plant product, whether natural or synthetic;

(2) Carrying any lighted, heated, or activated tobacco, nicotine, marijuana, or plant product, whether natural or synthetic, intended for inhalation; or

(3) Using an "electronic smoking device."

Smoking does not include the use of traditional, sacred tobacco as part of a lawfully recognized religious, spiritual, or cultural ceremony or practice.

Unenclosed area means any area that is not an enclosed area.

Unit means a personal dwelling space, even one lacking cooking facilities or private plumbing facilities, and includes any associated exclusive-use area, such as a private balcony, porch, deck, or patio. "Unit" includes, without limitation, an apartment; a condominium; a townhouse; a room in a senior facility; a room in a long-term health care facility, assisted living facility, community care facility, or hospital; a room in a hotel or motel; a dormitory room; a room in a single-room occupancy facility; a room in a homeless shelter; a mobile home; a camper vehicle or tent; a single-family home; and an accessory dwelling unit, junior accessory dwelling unit or second unit. Unit includes a new unit and an existing unit.

(1) New unit means a unit that is issued a certificate of occupancy after July 7, 2022, or any unit that is leased or rented for residential use for the first time after July 7, 2022.

(2) Existing unit means a unit in existence on or before July 7, 2022.

(Ord. No. 1710, § II.2, 6-6-2022)

(a) Effective as of July 7, 2022, smoking is prohibited anywhere on the premises of a multi-unit housing as follows:

(1) In all new units and existing units governed by a new lease, together with any associated outdoor exclusive-use unenclosed areas such as a private balcony, deck, porch or patio.

(b) Two years from July 7, 2022, smoking is prohibited anywhere on the premises of a multi-unit housing as follows:

(1) In all units, together with any associated outdoor exclusive-use areas such as balconies, decks, or patios; and

(2) In all common areas and other outdoor areas except for a designated smoking area established in compliance with subsection (d).

(c) Notwithstanding subsections (a) and (b), smoking is permitted inside the enclosed area of a detached unit, as of July 7, 2022. This exception does not apply to and smoking is not allowed in any outdoor exclusive-use unenclosed areas such as balconies, decks or patios associated with a detached unit. This subsection (c) shall remain in effect until July 7, 2027 and as of that date is repealed.

(d) Notwithstanding subsection (b), as of two years from July 7, 2022, smoking is permitted in a designated smoking area that meets all the following conditions:

(1) Must not be an enclosed area.

(2) Must be at least 25 feet from any indoor area, doorway, or window, and outdoor recreation area such as a tennis court, swimming pool, and picnic area, or outdoor area primarily used by children such as a playground.

(3) Must be no more than ten percent of the total unenclosed area of the property.

(4) Must have a clearly marked perimeter.

(5) Must be identified by conspicuous signs. The signs shall have letters of no less than one inch in height and shall be installed and maintained by the landlord or homeowner association with legal control over the designated smoking area.

(6) If the requirements set forth in this subsection (d) cannot be satisfied due to unique circumstances affecting a multi-unit housing, the director of community development or designee may approve a smoking area that meets the requirements of this chapter to the extent practicable or, if in his or her judgment such an area cannot be designed, the director of community development or designee may exempt the landlord or HOA from the designated smoking area requirement.

(e) No person with legal control over a multi-unit housing shall permit smoking anywhere on the premises, except as provided in subsections (c) and (d).

(f) No person with legal control over a common area in which smoking is prohibited by this chapter or other law shall knowingly permit the presence of ashtrays, ashcans, or other receptacles designed for or primarily used for disposal of smoking waste within the area.

(Ord. No. 1710, § II.3, 6-6-2022)

(a) After July 7, 2022, every lease or other rental agreement for the occupancy of a unit in a multi-unit housing, entered into, renewed, or continued month-to-month, shall be amended to include the following provisions:

(1) A clause providing that as of July 7, 2022, for new units and existing units governed by a new lease, and as of July 7, 2024, for all units, it is a material breach of the agreement to smoke or allow smoking in designated nonsmoking areas and units, including exclusive-use areas such as balconies, porches, or patios. Such clause shall be substantially consistent with the following:

"Tenant agrees and acknowledges that the premises to be occupied by tenant and members of tenant's household have been designated as a smoke-free living environment. As of July 7, 2022, for new units and existing units governed by a new lease, or July 7, 2024, for all units, tenant, members of tenant's household, and any guests under control of the tenant will not smoke anywhere:

a. In the unit rented by tenant, including any associated balconies, decks, or patios, other than the enclosed areas of a detached unit; or

b. In the common areas of the property, other than a designated smoking area.

As of July 7, 2027, for all units, tenant, members of tenant's household, and any guests under control of the tenant will not smoke anywhere on the premises.

Tenant acknowledges that a breach of the smoke-free policy may render tenant liable to landlord for the costs to repair tenant's unit due to damage from smoke odors or residue. A breach of the smoke-free policy is a breach of the lease and grounds for immediate enforcement action, including potential termination of the lease by the landlord.

Tenant will inform tenant's guests of the smoke-free policy. Tenant will also promptly give landlord a written statement of any incident where tenant observes smoking not allowed by this policy or believes smoke is migrating into the tenant's unit from sources outside the tenant's unit."

(2) A clause providing that it is a material breach of the agreement for tenant to violate any law regulating smoking while anywhere on the property, or to knowingly and intentionally allow any other person subject to the control of the tenant to engage in such behavior. Such clause shall be substantially consistent with the following:

"It is a material breach of this agreement for tenant to violate any law regulating smoking while anywhere on the property. Moreover, it is a material breach of this agreement for tenant to knowingly or intentionally allow any other person subject to the control of the tenant to violate any law regulating smoking while anywhere on the property."

(3) A clause expressly conveying third-party beneficiary status to all occupants of the multi-unit housing as to the smoking provisions of the lease or other rental agreement. Such clause shall be substantially consistent with the following:

"Tenant agrees that other tenants of the rental community are third-party beneficiaries of tenant's smoke-free policy agreement with landlord. A tenant may sue another tenant for an injunction to prohibit smoking or for damages but does not have the right to evict another tenant. Any lawsuit between tenants does not create a presumption that the landlord breached this lease."

(b) Whether or not a landlord complies with subsection (a) above, the clauses required by those subsections shall be implied and incorporated by law into every agreement to which subsection (a) applies as of July 7, 2022, for new units and existing units governed by a new lease, or July 7, 2024 for all units.

(c) A tenant who breaches, or knowingly and intentionally allows any other person subject to the control of the tenant to breach, a smoking provision of a lease or other rental agreement for the occupancy of a unit in a multi-unit housing shall be liable for the breach to (i) the landlord; and (ii) any occupant of the multi-unit housing who is exposed to smoke or who suffers damages as a result of the breach.

(d) 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. No. 1710, § II.4, 6-6-2022)

The following requirements apply to multi-unit housing other than units in a common interest development that are not being rented:

(1) On or before July 7, 2022, every landlord shall deliver to a tenant of each new unit or existing unit, as applicable, a copy of this chapter and a written notice clearly stating:

a. All new units and existing units governed by a new lease are designated nonsmoking units and smoking is prohibited in any such unit, including any associated private balcony, porch, deck, or patio, with the exception of enclosed areas of a detached unit, as of July 7, 2022;

b. All units are designated nonsmoking units and smoking is prohibited in any unit, including any associated private balcony, porch, deck, or patio, with the exception of enclosed areas of a detached unit, as of July 7, 2024; and

c. All common areas with the exception of Designated Smoking Areas in compliance with section 24-2(d) are designated nonsmoking and smoking is prohibited as of July 7, 2024; and

d. The entire premises, including all units, any associated private balcony, porch, deck, or patio, and all common areas, are designated nonsmoking and smoking is prohibited anywhere on the premises effective as of July 7, 2027.

(2) As of July 7, 2022, every landlord shall provide prospective tenants with written notice clearly stating that:

a. All units are designated nonsmoking and smoking is prohibited in any unit, including any associated private balcony, porch, deck, or patio, with the exception of enclosed areas of a detached unit, as of July 7, 2024; and

b. All common areas, with the exception of Designated Smoking Areas in compliance with section 24-2(d) are designated nonsmoking and smoking is prohibited as of July 7, 2024; and

c. The entire premises, including all units, any associated private balcony, porch, deck, or patio, and all common areas, are designated nonsmoking and smoking is prohibited anywhere on the premises effective as of July 7, 2027.

(3) As of July 7, 2024, the person or persons with legal control over common areas shall post and maintain clear and unambiguous "No Smoking" signs at entrances and exits, in common areas, and in conspicuous places adjoining the property grounds. In addition, as of July 7, 2024, the person or persons with legal control over the multi-unit housing shall post and maintain signs in sufficient numbers and locations in the multi-unit housing to indicate that smoking is prohibited in all units. The absence of signs shall not be a defense to a violation of any provision of this chapter. "No Smoking" signs are not required inside or on doorways of units.

(4) Landlords with knowledge of violations shall take reasonable steps to investigate and enforce the regulations, including a written notice to the resident of the landlord's knowledge of the violation, a request to cease the violation, and the course of action to be taken if the violation is not corrected. The landlord shall also provide resources provided by the City and/or County of Los Angeles to assist with nicotine dependence, such as referrals to quitline or online resources.

(Ord. No. 1710, § II.5, 6-6-2022)

The following requirements apply to common interest developments:

(1) On or before July 7, 2022, the HOA shall provide to all owners of units a copy of this chapter and a written notice clearly stating that:

a. All new units are designated nonsmoking and smoking is prohibited in any new unit, including any associated private balcony, porch, deck, or patio, with the exception of enclosed areas of a detached unit, as of July 7, 2022;

b. All units are designated nonsmoking and smoking is prohibited in any unit, including any associated private balcony, porch, deck, or patio, with the exception of enclosed areas of a detached unit, as of July 7, 2024; and

c. All common areas, with the exception of designated smoking areas in compliance with section 24-2(d) are designated nonsmoking and smoking is prohibited as of July 7, 2024;

d. The entire premises, including all units, any associated private balcony, porch, deck, or patio, and all common areas, are designated nonsmoking and smoking is prohibited anywhere on the premises effective as of July 7, 2027.

(2) As of July 7, 2022, every seller or lessor of a unit shall provide prospective buyers or renters, a copy of this chapter and a written notice clearly stating that:

a. All units are designated nonsmoking and smoking is prohibited in any unit, including any associated private balcony, porch, deck, or patio, with the exception of enclosed areas of a detached unit, as of July 7, 2024; and

b. All common areas, with the exception of designated smoking areas in compliance with section 24-2(d) are designated nonsmoking and smoking is prohibited as of July 7, 2024; and

c. The entire premises, including all units, any associated private balcony, porch, deck, or patio, and all common areas, are designated nonsmoking and smoking is prohibited anywhere on the premises effective as of July 7, 2027.

(3) As of July 7, 2024, the HOA, or any person having legal ownership or control over common areas, shall post and maintain clear and unambiguous "No Smoking" signs in sufficient numbers and locations in the common interest development to make it obvious to a reasonable person that smoking is prohibited throughout the common interest development. The absence of signs shall not be a defense to a violation of any provision of this chapter.

(4) HOAs with knowledge of violations shall take reasonable steps to investigate and enforce the regulations, including a written notice to the resident of the HOA's knowledge of the violation, a request to cease the violation, and the course of action to be taken if the violation is not corrected. The HOA shall also distribute resources provided by the City and/or County of Los Angeles to assist with nicotine dependence, such as referrals to a quitline or other online resources.

(Ord. No. 1710, § II.6, 6-6-2022)

(a) The provisions of this chapter shall be liberally construed to protect the public health to the maximum effect possible. Notwithstanding (i) any provision of this chapter or of this Code, (ii) any failure by any person to restrict smoking under this chapter, or (iii) 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 rights in nuisance, trespass, property damage, and personal injury or other legal or equitable principles.

(b) Any violation of this chapter is hereby declared to be a public nuisance.

(c) Nonconsensual exposure to smoke from smoking occurring on or drifting into residential property is a nuisance.

(Ord. No. 1710, § II.7, 6-6-2022)

(a) The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity.

(b) Enforcement of this chapter shall be the responsibility of city manager or his/her designee. In addition, any peace officer or code enforcement official also may enforce this chapter.

(c) Any violation of this chapter shall be punishable by administrative citation, or infraction, and subject to fines pursuant to chapter 1, articles II and III of this Code.

(d) A violation of this chapter shall not constitute a misdemeanor; and no violation of any provision of this chapter shall be prosecuted by the city attorney or city prosecutor as a misdemeanor; or remedied by a civil action, including, but not limited to, administrative or judicial nuisance abatement proceedings, civil code enforcement proceedings, and suits for injunctive relief.

(e) Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter.

(f) No person shall intimidate, harass, or otherwise retaliate against any person who seeks compliance with this chapter.

(g) Any person acting for the interests of itself, its members, or the general public may bring a civil action in any court of competent jurisdiction, including small claims court, to enforce this chapter. Upon proof of the violations, a court shall grant all appropriate relief including awarding actual or statutory damages including court costs and attorney fees, and issuing an injunction or conditional judgement.

(h) Enforcement of this chapter is at the sole discretion of the city. Under no circumstances shall the city have any responsibility or obligation to enforce or seek any legal redress, at law or in equity, for any violation of this chapter. Nothing in this chapter shall create a right of action in any person against the city or its agents to compel public enforcement of this chapter against private parties.

(Ord. No. 1710, § II.8, 6-6-2022)