Chapter 4-12 — SMOKING POLLUTION CONTROL

Note: Editor's Note: The majority of Chapter 4-12, consisting of Sections 4-12-100 through 4-12-1000 has been preempted by State law. See California State Labor Code, Section 6404.5.

Editor's Note: Ordinance No. 2009-011 repealed and replaced Chapter 4-12 in its entirety.

Article 1

General(Legislative History: Ordinance No. 88-022, 9/6/88; Ordinance No. 2009-011, 12/7/09 (Sections 4-12-100, 4-12-105); Ordinance No. 2014-017, 10/20/14 (Section 4-12-105))

The intent of this Chapter is to provide for the public health, safety, and welfare by discouraging the inherently dangerous behavior of tobacco use around non-tobacco users; by protecting children from exposure to smoking and tobacco while they play; by reducing the potential for children to associate smoking and tobacco with a healthy lifestyle; and by affirming and promoting the family atmosphere of the City's public places.

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

"Business" means any sole proprietorship, partnership, joint venture, corporation, association, or other entity formed for profit-making purposes or that has an employee, as defined in this section.

"Dining area" means any area available to or customarily used by the general public, that is designed, established, or regularly used for consuming food or drink.

"Employee" means any person who is employed; retained as an independent contractor by any employer, as defined in this section; or any person who volunteers his or her services for an employer, association, nonprofit, or volunteer entity.

"Employer" means any person, partnership, corporation, association, nonprofit or other entity who employs or retains the service of one or more persons, or supervises volunteers.

"Enclosed" means:

(1) Any covered or partially covered space having more than 50% of its perimeter area walled in or otherwise closed to the outside such as, for example, a covered porch with more than two walls; or

(2) Any space open to the sky (hereinafter "uncovered") having more than 75% of its perimeter area walled in or otherwise closed to the outside such as, for example, a courtyard;

(3) Except that an uncovered space of 3000 square feet or more is not enclosed, such as, for example, a field in an open-air arena.

"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 public agency is not a nonprofit entity within the meaning of this section.

"Place of employment" means any area under the legal or de facto control of an employer, business or nonprofit entity that an employee or the general public may have cause to enter in the normal course of operations, but regardless of the hours of operation, including, for example, indoor and outdoor work areas, construction sites, vehicles used in employment or for business purposes, taxis, employee lounges, conference and banquet rooms, bingo and gaming facilities, long-term health facilities, warehouses, enclosed common areas of multi- family housing buildings, and private residences that are used as child care or health care

facilities subject to licensing requirements regardless of their hours of operation.

"Playground" means any park or recreational area designed in part to be used by children that has play or sports equipment installed or has been designated or landscaped for play or sports activities, or any similar facility located on public or private school grounds, or on City grounds.

"Public place" means any place, public or private, open to the general public regardless of any fee or age requirement, including, for example, bars, restaurants, clubs, stores, shopping malls, stadiums, parks, play-grounds, taxis, and buses.

"Reasonable distance" means a distance that ensures that occupants of an area in which smoking is prohibited are not exposed to secondhand smoke created by smokers outside the area. This distance shall be a minimum of 20 feet.

"Recreational area" means any area, public or private, open to the public for recreational purposes regardless of any fee requirement, including, for example, parks, gardens, sporting facilities, stadiums, and playgrounds.

"Service area" means any area designed to be or regularly used by one or more persons to receive or wait to receive a service, enter a public place, or make a transaction whether or not such service includes the exchange of money including, for example, automated teller machines (ATMs), bank teller windows, telephones, ticket lines, bus stops, and cab stands.

"Significant tobacco retailer" means any tobacco retailer that derives 75% or more of gross sales receipts from the sale or exchange of tobacco products and tobacco paraphernalia.

"Smoke" means the gases, 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 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 electronic cigarette vapors. The term "smoke" also includes vapor generated through the use of an electronic cigarette in any manner or in any form.

"Smoking" means engaging in an act that generates smoke, such as for example: possessing a lighted pipe, lighted hookah pipe or shisha pipe, an operating electronic cigarette, a lighted cigar, or a lighted cigarette of any kind; or lighting or igniting of a pipe, cigar, hookah pipe, cigarette of any kind, or any other weed or plant.

"Tobacco product" means any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco.

Article 2

Prohibition of Smoking in Public Places, Places of Employment, and Certain other Areas(Legislative History: Ordinance No. 88-022, 9/6/88; Ordinance No. 2009-011, 12/7/09 (Sections 4-12-200—4-12-210))

Smoking shall be prohibited in the following enclosed places within the City of San Leandro except in places listed in Section 4-12-210, and except in such places in which smoking is already prohibited by State or Federal law in which case the State or Federal law applies:

(a) Public places;

(b) Places of employment;

(c) Enclosed areas adjacent to an enclosed area in which smoking is prohibited by any other
section of this code, State law, or Federal law and that have a common or shared air space
such as, without limitation, openings, cracks, air ventilation systems, doorways, hallways,
and stairways. Notwithstanding any other provision, the fact that smoke enters one
enclosed area from another enclosed area is conclusive proof that the areas share a common
or shared air space;

(d) Enclosed areas that have a common or shared ventilation, air conditioning or heating
system with an enclosed area in which smoking is prohibited. Notwithstanding any other
provision, the fact that smoke enters one enclosed area from another enclosed area is
conclusive proof that the areas share a common or shared air space.

Smoking shall be prohibited in the following unenclosed places within the City of San Leandro, except in such places in which smoking is already prohibited by State or Federal law in which case the State or Federal law applies:

(a) Places of employment;

(b) Service areas;

(c) Public places, including dining areas;

(d) Ticket, boarding, and waiting areas of transit depots and bus stops;

(e) City and private parks, playgrounds, athletic facilities, and golf practice facilities (i.e.,
driving range and practice putting/chipping greens);

(f) The sites of public events including, but not limited to, for example, sports events,
entertainment, speaking performances, ceremonies, pageants, farmers' markets, festivals,
carnivals, and fairs.

(a) Unless otherwise prohibited by law, smoking is permitted in the following enclosed places:

(1) Significant tobacco retailers, if at all times minors are prohibited from entering the
store;

(2) Private residential units, except those used as a child care or health care facility
subject to licensing requirements; and

(3) Up to 25% of hotel and motel guest rooms, if the hotel or motel permanently
designates particular guest rooms as nonsmoking rooms such that 75% or more of its
guest rooms are nonsmoking and ashtrays and matches are permanently removed
from such nonsmoking rooms. Permanent "No Smoking" signage shall be posted in
nonsmoking rooms.

(b) Unless otherwise prohibited by law, smoking is permitted in the following unenclosed
places:

(1) Eighteen hole Tony Lema Golf Course and nine hole Marina Golf Course.

Article 3
Reasonable Smoking Distance Required(Legislative History: Ordinance No. 88-022, 9/6/88;
Ordinance No. 2009-011, 12/7/09 (Sections 4-12-300, 4-12-305))

Smoking in unenclosed areas shall be prohibited within a reasonable distance from:

(a) Any entrance, window, opening, crack, or vent into an enclosed area in which smoking is prohibited, except while actively passing on the way to another destination and so long as smoke does not enter any enclosed area in which smoking is prohibited, except that bars are exempt from the outside reasonable distance requirements of this section, provided that the smoke does not enter adjacent areas in which smoking is prohibited by law or by the owner, lessee, or licensee of the adjacent property.

(b) Any unenclosed area in which smoking is prohibited under Section 4-12-205 except while actively passing on the way to another destination.

Smoking shall be prohibited on public property within 300 feet of the property line of a primary or secondary school.

Article 4

Duties of Person, Employer, Business or Nonprofit Entity(Legislative History: Ordinance No. 88-022, 9/6/88; Ordinance No. 2009-011, 12/7/09 (Sections 4-12-400, 4-12-405); Ordinance No. 2014-017, 10/20/14 (Section 4-12-400))

(a) No person, owner, landlord, employer, business, or nonprofit entity shall knowingly permit smoking in an area which is under the legal or de facto control of the person, owner, landlord, employer, business, or nonprofit entity and in which smoking is prohibited by law and the person, owner, landlord, employer, business or nonprofit entity is not otherwise compelled to act under State or Federal law.

(b) Notwithstanding any other provision of this Chapter, any owner, landlord, employer, business, nonprofit entity, or other person who controls any property, establishment, or place of employment regulated by this Chapter may declare any part of such area in which smoking would otherwise be permitted to be a nonsmoking area.

(c) Notwithstanding any other provision of this Chapter, any owner, landlord, manager, employer, business, nonprofit entity, or other person who controls any property, establishment, or place of employment regulated by this Chapter may adopt policies relating to smoking which are more restrictive than those provided herein, or declare such property, establishment or place of employment regulated by this Chapter as entirely nonsmoking.

"No Smoking" or "Smoke Free" 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 with a red bar across it) shall be clearly, sufficiently and conspicuously posted in every enclosed and unenclosed place in which smoking is prohibited by this Chapter, by the person, employer, business, or nonprofit entity that has legal or de facto control of such place. For purposes of this Chapter, the City Manager or designee shall be responsible for the posting of signs in regulated facilities owned or leased in part by the City. Notwithstanding this provision, the presence or absence of signs shall not be a defense to the violation of any other provision of this Chapter.

Article 5

Enforcement and Penalties(Legislative History: Ordinance No. 88-022, 9/6/88; Ordinance No. 2009-011, 12/7/09 (Sections 4-12-500—4-12-510))

(a) Violations of this Chapter may, in the discretion of the District Attorney, be prosecuted as infractions or misdemeanors.

(b) Violations of this Chapter are subject to a civil action brought by the City Attorney,
punishable by a civil fine not to exceed One hundred dollars for the first violation; Two
hundred dollars for the second violation within one year; and Five hundred dollars for each
additional violation of this Article within one year. Each day such violation continues shall
constitute a separate offense.

(c) Any person who smokes in an area where smoking is prohibited is guilty of trespass and, if
the area is accessible by the public or any employee during the normal course of operations,
such smoking constitutes a public nuisance.

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

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

(f) Enforcement of this Chapter shall be the responsibility of the San Leandro Police
Department.

(a) Any person acting for the interests of itself, its members, or the general public (hereinafter "the 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, Two hundred fifty dollars 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 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) Restitution of the gains obtained in violation of this Chapter.

(3) Exemplary damages, where it is proven by clear and convincing evidence that the
defendant is guilty of oppression, fraud, malice, 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
conditional judgment or an injunction. Upon proof of a violation, a court shall issue a
conditional judgment or an injunction.

(c) Notwithstanding any legal or equitable bar against a private enforcer seeking relief on its
own behalf, a private enforcer may bring an action to enforce this Chapter solely on behalf
of the general public. When a private enforcer brings an action solely on behalf of the
general public, nothing about such an action shall act to preclude or bar the private enforcer
from bringing a subsequent action based upon the same facts but seeking relief on its own
behalf.

(d) Nothing in this Chapter shall prohibit the 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 of small claims court as set forth
in California Code of Civil Procedure Section 116.220.

Secondhand smoke constitutes a nuisance. Notwithstanding any other provisions of this chapter, a private citizen may bring a legal action to abate secondhand smoke as a nuisance.

Article 6

(Reserved)(Legislative History: Ordinance No. 88-022, 9/6/88; Ordinance No. 2009-011, 12/7/ 09 repealed Article 6 (Section 4-12-600))

Article 7

(Reserved)(Legislative History: Ordinance No. 88-022, 9/6/88; Ordinance No. 2009-011, 12/7/ 09 repealed Article 7 (Section 4-12-700))

Article 8

(Reserved)(Legislative History: Ordinance No. 88-022, 9/6/88; Ordinance No. 2002-032, 12/9/ 02 (Section 4-12-800); Ordinance No. 2009-011, 12/7/09 repealed Article 8 (Section 4-12-800))

Article 9

(Reserved)(Legislative History: Ordinance No. 88-022, 9/6/88; Ordinance No. 2009-011, 12/7/ 09 repealed Article 9 (Section 4-12-900))

Article 10

(Reserved)(Legislative History: Ordinance No. 89-07, 3/6/89, (4-12-1005); Ordinance No. 2009-011, 12/7/09 repealed Article 10 (Sections 4-12-1000, 4-12-1005))