San Rafael Municipal Code Ch. 9.04 Clean Indoor and Outdoor Air and Health Protection

This chapter shall be known as the City of San Rafael Clean Indoor and Outdoor Air and Health Protection Ordinance.

(Ord. No. 1908, § 1, 10-15-2012)

The city council finds and declares that the purposes of this chapter are:

A. To protect the public health, safety and general welfare;

B. To guarantee the right of nonsmokers to breathe smoke-free air, and to recognize that the need to breathe smoke-free air has priority over the desire to smoke;

The city council further finds that it is within the City of San Rafael's basic police power to implement and enforce the provisions of this chapter.

(Ord. No. 1908, § 1, 10-15-2012)

As used in this chapter, the following words and phrases shall be construed as defined in this section, unless the context or use of such words or phrases clearly indicates a different meaning or construction intended in the particular case:

"Bar" means an area which is devoted to the serving of alcoholic beverages for consumption by patrons on the premises and in which the serving of food is incidental to the consumption of such beverages. Although a restaurant may contain a bar, the term "bar" shall not include the restaurant dining area.

"Business" means any sole proprietorship, joint venture, corporation or other form of business entity formed for profit making purposes.

"City" means the City of San Rafael.

"City manager" means the city manager of the City of San Rafael.

"Common area" means every indoor or outdoor area of a multi-family residence that residents of more than one unit of that multi-family residence are entitled to enter and/or use, including, but not limited to, halls and paths, lobbies and courtyards, elevators and stairs, community rooms and playgrounds, gym facilities and swimming pools, parking garages and parking lots, shared restrooms, shared laundry rooms, shared cooking areas, and shared eating areas.

"Designated smoking area" means an area meeting the requirements of Section 9.04.090 of this chapter where smoking is permitted, as designated by an employer, landlord, or other person with legal control of the premises.

"Dining area" means any area, including streets and sidewalks, that 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.

"Duplex" for purposes of this chapter means one structure on a single lot containing two (2) dwelling units with a shared wall, each of which is functionally separate from the other.

"Electronic smoking device" means an electronic device which can be used to deliver an inhaled dose of nicotine, or other substances, including any component, part, or accessory of such a device, whether or not sold separately.

"Employee" means any person who is employed by any employer in consideration for direct or indirect monetary wages or profit, and any person who volunteers his or her services for an employer.

"Employer" means any person, partnership, corporation, including a municipal corporation, business, or non-profit entity, which employs the services of one or more individual persons or utilizes volunteers.

"Enclosed area" means all space between a floor and ceiling which is enclosed on all sides by solid walls or windows (exclusive of door or passage ways) that extend from the floor to the ceiling.

"Landlord" means any person who owns property let for residential use, any person who lets residential property, and any person who manages such property, except that "landlord" does not include a master tenant who sublets a unit as long as the master tenant sublets only a single unit of a multi-family residence.

"Multi-family residence" for purposes of this chapter means residential property containing three (3) or more units with one (1) or more shared walls, floors or ceilings, including for example, rental complexes, residential cooperatives or condominium complexes, senior citizen residences, assisted living complexes and skilled nursing facilities. "Multi-family residence" does not include the following specifically excluded types of housing:

A. A hotel or motel that meets the requirements set forth in California Civil Code section 1940(b)(2);

B. A mobile home park;

C. A campground;

D. A marina or port;

E. A single-family home; and

F. A single-family home with a detached in-law or second unit when permitted pursuant to California Government Code sections 65852.1, 65852.150, or 65852.

"New unit" means a unit that is issued a certificate of occupancy/final inspection more than one hundred eighty (180) days after November 14, 2012 and also means a unit that is leased or rented for residential use for the first time more than one hundred eighty (180) days after November 14, 2012.

"Non-profit entity" means any corporation, unincorporated association or other entity created for charitable, philanthropic, educational, character-building, political, social, religious or other similar purposes, the net proceeds from the operations 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 "non-profit entity" within the meaning of this section.

"No smoking sign" means a sign containing the words "no smoking" or the international "no smoking" symbol (consisting of a pictorial representation of a burning cigarette in a red circle or red heart with a red bar across it).

"Open space" means any lot or area of land or water essentially unimproved and set aside, dedicated, designated or reserved for public or private use or enjoyment, or for the use and enjoyment of owners and occupants of land adjoining or neighboring such open space.

"Person" means any individual, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee, or any other legal entity.

"Place of employment" means 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 operation, regardless of the hours of operation, including, but not limited to, indoor, vehicles used in employment or for business purposes, taxis, employee cafeterias, lounges and restrooms, conference and banquet rooms—or other dining areas, warehouses, long-term health care facilities, and lobbies and hallways. A private residence is not a "place of employment" unless it is used as a day services center or a child care or health care facility licensed by the State of California.

"Premises" means a piece of land and any improvements upon it such as is usually described in a deed, deed of trust or mortgage, and includes legally separate but contiguous pieces of land that are owned by the same natural person or by legal persons under common control.

"Public event" means an event which is open to and may be attended by the general public, including but not limited to such events as farmers' markets, parades, craft fairs, festivals, concerts, performances or other exhibitions, regardless of any fee or age requirement.

"Public place" means any place, publicly or privately owned, which is open to the general public regardless of any fee or age requirement.

"Recreation area" means any area that is publicly or privately owned and open to the general public for recreational purposes, regardless of any fee or age requirement. The term "recreation area" includes, but is not limited to, parks, picnic areas, playgrounds, sports fields and courts, golf courses, walking paths, gardens, hiking trails, bike paths, horseback riding trails, swimming pools, spas, roller- and ice-skating rinks, skateboard parks, amusement parks, sports arenas, and beaches.

"Service area" means any publicly or privately owned area, including streets and sidewalks, that is designed to be used or is regularly used by one or more persons to wait for or receive a service or make a transaction, whether or not such service or transaction involves the exchange of money. The term "service area" includes, but is not limited to, the San Rafael Transit Center, information kiosks, automatic teller machines (ATMs), ticket lines, bus stops or shelters, mobile vendor lines, cab stands, or enclosed lobbies or vestibules.

"Smoke" means the gases and particles released into the air by combustion when the apparent or usual purpose of the combustion is human inhalation of the resulting combustion products, including, but not limited to, tobacco smoke.

"Smoking" means inhaling, exhaling, burning, or carrying any lighted, heated, or ignited cigar, cigarette, cigarillo, pipe, hookah, or electronic smoking device intended for human inhalation.

"Sports arena" means enclosed or unenclosed sports pavilions, gymnasiums, health spas, swimming pools, roller and ice rinks, baseball stadiums, bowling alleys and other similar places where members of the general public assemble either to engage in physical exercise, participate in athletic competition, or witness sports events.

"Undeveloped property" is any privately owned parcel or area of land or water which is essentially an unimproved natural landscape area.

"Unenclosed area" means any area that is not an enclosed area, as defined in this section.

"Unit" for the purpose of this chapter means a personal dwelling space, even where lacking cooking facilities or private plumbing facilities, and includes any associated exclusive-use enclosed area or unenclosed area, such as, for example, a private balcony, porch, deck, or patio. "Unit" includes, but is not limited to, an apartment; a condominium; a townhouse; a room in a long-term health care facility, assisted living facility, or hospital; a hotel or motel room; a room in a single room occupancy ("SRO") facility; a room in a homeless shelter; a mobile home; a camper vehicle or tent; a single-family home; and an in-law or second unit.

(Ord. No. 1908, § 1, 10-15-2012; Ord. No. 1938, §§ 1, 2, 4-18-2016; Ord. No. 2008, § 2, 5-16-2022)

All city-owned vehicles, including jitneys and buses and other means of public transit under the authority of the city, and all enclosed facilities owned and controlled by the city, including jails, and any board, council, commission and agency of the city shall be subject to the provisions of this chapter.

(Ord. No. 1908, § 1, 10-15-2012)

A. Enclosed areas. Smoking shall be prohibited in the enclosed areas of the following places within the city limits of the City of San Rafael except in places listed in subsection C. below, 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:

1. Places of employment.

2. Public places.

3. Recreation areas.

4. Common areas.

B. Unenclosed areas. Smoking shall be prohibited in the unenclosed areas of the following places within the city limits of the City of San Rafael except in such places in which smoking is already prohibited by state or federal law in which case the state or federal law applies:

1. Public places, including public plazas.

2. Within twenty feet (20') of a working road or building and construction crew.

3. Recreation areas.

4. Open space.

5. Service areas.

6. Dining areas.

7. Common areas, provided that a person with legal control over a common area may designate a portion of the unenclosed area of the common area as a designated smoking area if the area meets all of the criteria set out in Section 9.04.090.

8. Public events, provided that the event sponsor may designate a portion of the unenclosed area of the public place being use for the event as a designated smoking area if the designated smoking area is at least twenty feet (20') from any portion of the public place established for the preparation, service or consumption of food or drink, and at least one hundred feet (100') from any portion of the public place established as a play area for children or a place to gather to witness a concert or similar exhibition; and provided further that smoking is permitted on streets and sidewalks being used in a traditional capacity as pedestrian or vehicular thoroughfares, unless otherwise prohibited by this chapter or other law.

9. Sidewalks and other pedestrian areas and public places in Downtown San Rafael accessible to the general public.

a. For the purposes of this section, Downtown San Rafael means the area defined by Hetherton Street between Mission Avenue and Second Street, Second Street between Hetherton and the beginning of Miracle Mile, Fourth Street from the beginning of the Miracle Mile to H Street, H Street between Fourth Street and Mission Avenue, and Mission Avenue between H Street and Hetherton Street.

b. This prohibition applies to sidewalks along public and private streets, pedestrian alleys, walkways providing access from parking lots and structures to stores or sidewalks, and all other pedestrian paths or areas that are accessible to the general public within and around the perimeter of the area defined in subsection (a) above.

C. Unless otherwise prohibited by law, smoking is not prohibited in the following enclosed areas:

1. Smoking is not prohibited in up to twenty percent (20%) of guestroom accommodations in a hotel, motel, or similar transient lodging establishment if the hotel or motel permanently designates particular guestrooms as nonsmoking rooms such that eighty percent (80%) or more of guestrooms are permanently nonsmoking and ashtrays and matches are permanently removed from such nonsmoking rooms. Permanent "No Smoking" signage shall be posted in nonsmoking guestrooms.

2. Smoking at theatrical production sites, as part of the production and not by members of the audience, is not prohibited by this subsection if smoking is an integral part of the story and the use of a fake, prop, or special effect cannot reasonably convey the idea of smoking in an effective way to a reasonable member of the anticipated audience.

3. Smoking inside a retail tobacco store is not prohibited if:

a. The retail tobacco store does not sell edible products, including, for example, food, water, or drinks, or allow such products to be consumed on the business premises;

b. The retail tobacco store prohibits minors from entering the store at all times; and

c. The premises of the retail tobacco store are an independent freestanding building unattached to any other structure or use.

4. Smoking inside a detached, single-family home is not prohibited, except those used as a day services center or a child care or health care facility licensed by the State of California;

5. Smoking inside private vehicles is not prohibited.

D. Notwithstanding any other provisions of this section, nothing in this chapter prohibits any person, landlord, employer, or non-profit entity with legal control over any property or facility from declaring the entire property or facility as nonsmoking and prohibiting smoking on any part of such property or facility, even if smoking is not otherwise prohibited in that area.

(Ord. No. 1908, § 1, 10-15-2012; Ord. No. 1938, § 3, 4-18-2016)

A. In all unenclosed areas where smoking is otherwise permitted, smoking shall nevertheless be prohibited within twenty feet (20') from any doorway, window, opening, crack, or vent into an enclosed area in which smoking is prohibited.

B. In all unenclosed areas where smoking is otherwise permitted, smoking shall nevertheless be prohibited within twenty feet (20') from any unenclosed areas in which smoking is prohibited under Section 9.04.050(B) of this chapter.

C. The prohibitions in subdivisions A and B of this section shall not apply to unenclosed areas of private residential properties that are not duplexes or multi-family residences.

D. Smoking is prohibited in unenclosed areas of a duplex or multi-family residence, including exclusive-use areas such as balconies, porches, decks, and patios, within twenty feet (20') from any doorway, window, opening, or other vent into an enclosed area where smoking is prohibited by this chapter or other law, or by binding agreement relating to the ownership, occupancy, or use of real property, or by designation of a person with legal control over the property.

(Ord. No. 1908, § 1, 10-15-2012; Ord. No. 1938, § 4, 4-18-2016)

A. All new units of a duplex or multi-family residence are hereby designated nonsmoking units, including any associated exclusive-use enclosed areas or unenclosed areas, such as, for example, a private balcony, porch, deck, or patio.

B. All units of a duplex or multi-family residence that are not new units, including any associated exclusive-use enclosed areas or unenclosed areas, such as, for example, a private balcony, porch, deck, or patio, are hereby designated nonsmoking units as of November 14, 2013.

C. Smoking in a designated nonsmoking unit is a violation of this chapter.

(Ord. No. 1908, § 1, 10-15-2012; Ord. No. 1938, § 5, 4-18-2016; Ord. No. 2055, div. 1, 11-17-2025)

A. Every lease or other rental agreement for the occupancy of a new or existing unit in a duplex or multi-family residence entered into, renewed, or continued month-to-month after November 14, 2012, shall include the provisions set forth in subsection B below on the earliest possible date when such an amendment is allowable by law when providing the minimum legal notice.

B. Every lease or other rental agreement for the occupancy of a new or existing unit in a duplex or multi-family residence entered into, renewed, or continued month-to-month after November 14, 2012, shall be amended to include the following provisions:

1. A clause providing that as of November 14, 2013, it is a material breach of the agreement to allow or engage in smoking in the unit. Such a clause might state, "It is a material breach of this agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to engage in smoking in the unit as of November 14, 2013."

2. A clause providing that it is a material breach of the agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to engage in smoking in any common area of the property other than in a designated outdoor smoking area. Such a clause might state, "It is a material breach of this agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to engage in smoking in any common area of the property, except in an outdoor designated smoking area, if one exists."

3. A clause providing that it is a material breach of the agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to violate any law regulating smoking while anywhere on the property. Such a clause might state, "It is a material breach of this agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to violate any law regulating smoking while anywhere on the property."

4. A clause expressly conveying third-party beneficiary status to all occupants of the multi-family residence as to the smoking provisions of the agreement. Such a clause might state, "Other occupants of the property are express third-party beneficiaries of those provisions in this agreement that concern smoking. As such, other occupants of the property may seek to enforce such provisions by any lawful means, including by bringing a civil action in a court of law."

C. Whether or not a landlord complies with subsections A and B above, the clauses required by those subsections shall be implied and incorporated by law into every agreement to which subsections A or B apply and shall become effective as of the earliest possible date on which the landlord could have made the insertions pursuant to subsections A or B.

D. A tenant who breaches a smoking provision of a lease or other rental agreement for the occupancy of a unit in a duplex or multi-family residence, or who knowingly permits any other person subject to the control of the tenant or present by invitation or permission of the tenant, shall be liable for the breach to:

1. The landlord; and

2. Any occupant of the premises who is exposed to smoke or who suffers damages as a result of the 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. No. 1908, § 1, 10-15-2012)

A. Multi-family residences, duplexes, places of employment, city owned or controlled public place, and public events may designate an outdoor area where smoking is permitted if the area meets all of the following criteria:

1. The area is located at least twenty feet (20') from any unit or enclosed area where smoking is prohibited by this chapter or other law; by binding agreement relating to the ownership, occupancy, or use of real property; or by designation of a person with legal control over the premises. A designated smoking area may require modification or elimination as laws change, as binding agreements are created, and as nonsmoking areas on neighboring premises are established.

2. The area does not include, and is at least one hundred feet (100') from, unenclosed areas primarily used by children and unenclosed areas with improvements that facilitate physical activity including, for example, playgrounds, swimming pools, and school campuses;

3. The area includes no more than ten (10) percent of the total unenclosed area of the multi-family residence for which it is designated;

4. The area has a clearly marked perimeter;

5. The area is identified by conspicuous signs;

6. The area is completely within an unenclosed area; and

7. The area does not overlap with any enclosed or unenclosed area in which smoking is otherwise prohibited by this chapter or other provisions of this Code, state law, or federal law.

8. Notwithstanding anything in this section to the contrary the city manager may in his or her discretion establish a designated smoking area in any publicly owned or operated public place in any appropriate location in or on a city owned or controlled public place.

B. Multi-family properties with ten (10) units or more, located within one thousand (1,000) feet from an undeveloped property or open space must implement a designated area that meets existing standards. If no such area can be found to meet the criteria for designated smoking area, the property must be posted with signage indicating the property as a smoke-free zone without a designated smoking area and advising that violation is subject to enforcement under this Code. After April 1, 2023, all multi-family properties with more than ten (10) units within one thousand (1,000) feet of undeveloped land or open space must have a designated smoking area or proper signage posted.

(Ord. No. 1908, § 1, 10-15-2012; Ord. No. 2008, § 2, 5-16-2022)

A. Smoking in a common area, on or after November 14, 2012, other than in a designated smoking area established pursuant to Section 9.04.050(B)(5), is a violation of this chapter.

B. Smoking in a new unit of a duplex or a multi-family residence, on or after November 14, 2012, is a violation of this chapter.

C. Smoking in a unit of a duplex or a multi-family residence that is not a new unit, on or after November 14, 2013, is a violation of this chapter.

(Ord. No. 1908, § 1, 10-15-2012)

A. No person, landlord, or employer shall knowingly permit smoking in an area which is under his or her legal or de facto control and in which smoking is prohibited by this chapter, unless otherwise required by state or federal law.

B. Section 9.12.034 of this Municipal Code prohibits littering citywide. Therefore, no person shall dispose of used smoking or tobacco product waste in or upon any street, sidewalk or other public place within the City of San Rafael.

C. A person, landlord, or employer who has legal or de facto control of premises in which smoking is prohibited by this chapter shall post on those premises a clear, conspicuous and unambiguous "No Smoking" or "Smoke-free" sign at each point of ingress to the area where smoking is prohibited, and in at least one other conspicuous point within that area. "No Smoking" signs are not required inside or at doorways of designated nonsmoking units, except in hotel or motel guestrooms as required in 9.04.050(C)(1). The signs shall not exceed five (5) square feet in area; shall have letters of no less than one inch in height and shall include 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). Signs posted on the exterior of buildings to comply with this section shall include any buffer zone requirement set forth in Section 9.04.060. At least one sign with the County of Marin phone number where complaints can be directed must be conspicuously posted in each place in which smoking is prohibited. For purposes of this section, the city manager or his/her designee shall be responsible for the posting of signs required in facilities owned or leased in whole or in part by the city, in such locations as may be determined by and in the sole discretion of the city manager or his/her designee. Notwithstanding this provision, the presence or absence of signs shall not be a defense to a charge of smoking in violation of any other provision of this chapter.

D. No person, landlord, or employer shall intimidate, threaten any reprisal, or effect any reprisal, for the purpose of retaliating against another person who seeks to attain 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.

(Ord. No. 1908, § 1, 10-15-2012)

A. Any violation of this chapter shall be, and the same is hereby declared to be, unlawful and a public nuisance, and shall be enforceable pursuant to Chapters 1.40, 1.42, 1.44, or 1.46 of this Code, or by any other judicial and administrative penalties and remedies available to the city under state law. Each instance of smoking in violation of this chapter shall constitute a separate violation. For violations other than for smoking, each day of a continuing violation of this chapter shall constitute a separate violation. The remedies provided by this chapter are not intended to preclude any other remedy available at law or in equity.

B. Any person acting for the interests of itself, its members, or the general public (hereinafter "private enforcer") may bring a private action, including for declaratory or equitable relief, in any court of competent jurisdiction, including small claims court, to enforce this section against any person who has violated this section. The private enforcer must produce documentation substantiating the violation of the city's smoking ordinance, which could include resident complaints, inspection reports, and/or enforcement actions by local public health or code enforcement officers. A court shall grant all appropriate relief, including: (1) awarding damages; and (2) issuing an injunction or a conditional judgment. Under section 116.220(a)(5) of the California Code of Civil Procedure, small claims courts are expressly authorized to award an injunction or a conditional judgment for actions brought under this section. Except as otherwise provided, enforcement of this section is at the sole discretion of the city. Nothing in this section shall create a right of action in any person against the city or its agents to compel public enforcement of this section against private parties.

(Ord. No. 1908, § 1, 10-15-2012; Ord. No. 2042, div. 1, 9-16-2024; Ord. No. 2055, div. 1, 11-17-2025)

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

(Ord. No. 1908, § 1, 10-15-2012)