Santa Clara County Municipal Code Ch. VIII Restrictions on the Use of Tobacco Products and Electronic Smoking…

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Editor's note— Sec. 1 of Ord. No. NS-625.8, adopted June 24, 2014, amended the title of Ch. VIII, from Smoking Pollution Control in Multi-Unit Residences to Restrictions on the Use of Tobacco Products and Electronic Smoking Devices in Multi-Unit Residences.

This chapter is adopted to protect the public health, safety, and welfare by:

(1) Protecting users of tobacco products and electronic smoking devices, as well as non-users, from such products and exposure to emissions therefrom;

(2) Preventing youth from accessing such products, becoming addicted to nicotine and becoming users of such products; and

(3) Preventing the normalization of smoking behavior generally.

(Ord. No. NS-625.6, 11-9-10; Ord. No. NS-625.8, § 2, 6-24-14)

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

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

(b) Common interest complex means a "condominium project," a "community apartment project," a "stock cooperative," or a "planned development," as such terms are defined by Civil Code Section 1351.

(c) Electronic smoking device means an electronic and/or battery-operated device that can deliver an inhalable dose of nicotine to the user. "Electronic smoking device" includes any product meeting this definition, regardless of whether it is manufactured, distributed, marketed or sold as an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, electronic hookah, electronic vape, vaporizer, or any other product name or descriptor.

(d) Enclosed area means any area that is "enclosed," as such term is as defined in Section B13-81(e) of Division B13 of this Code.

(e) Existing unit means any unit that is not a new unit.

(f) Hotel is as defined in Section B13-81(f) of Division B13 of this Code.

(g) 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-unit residence.

(h) Multi-unit residence means a common interest complex or rental complex that is located within the unincorporated area of the County and contains two or more units. A multi-unit residence does not include property owned by the state or federal government or the following specifically excluded types of housing:

(1) A hotel;

(2) A mobile home park;

(3) A marina or port;

(4) A detached, single-family home; and

(5) A detached, single-family home with a detached or attached in-law or second unit when permitted pursuant to Government Code sections 65852.1, 65852.150, 65852.2 or an ordinance of the County adopted pursuant to those sections.

(i) New unit means a unit that is issued a certificate of occupancy after June 7, 2011, and also means a unit that is let for residential use for the first time after June 7, 2011.

(j) Nonsmoking area means any enclosed area or unenclosed area of a multi-unit residence in which smoking or the use of electronic smoking devices is prohibited by:

(1) This chapter or other law;

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

(3) By designation of a person with legal control over the area.

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

(l) Rental complex means a property for which 50 percent or more of units are let by or on behalf of the same landlord.

(m) Smoke is as defined in Section B13-81(j) of Division B13 of this Code.

(n) Smoking is as defined in Section B13-81(l) of Division B13 of this Code.

(o) Unenclosed area means any area that is not an enclosed area. Unenclosed areas include balconies, porches, decks and patios.

(p) Unit means a personal dwelling space, even where lacking cooking facilities or private plumbing facilities, and includes any associated exclusive-use enclosed area, such as, for example, a private balcony, porch, deck, or patio. "Unit" includes without limitation: 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 facility; a room in a homeless shelter; a mobile home; a camper vehicle or tent; a single-family home; a room in a single-family home; and an in-law or second unit. Unit includes a new unit.

(Ord. No. NS-625.6, 11-9-10; Ord. No. NS-625.8, § 3, 6-24-14)

(a) Except as provided in subsections (b) and (c), smoking and the use of electronic smoking devices is prohibited in all common areas.

(b) A person with legal control over a common area, such as a landlord or homeowners' association, may designate a portion of the common area as a designated area for smoking and/or the use of electronic smoking devices ("designated smoking area"). A designated smoking area:

(1) Shall be an unenclosed area;

(2) Shall be located at least 30 feet in any direction from any operable doorway, window, opening or other vent into an enclosed area that is located at a multi-unit residence and is a nonsmoking area;

(3) Shall have a clearly marked perimeter; and

(4) Shall be identified by conspicuous signs.

(c) The smoking and electronic smoking device prohibition in subsection (a) shall not apply to a person who is smoking or using an electronic smoking device in an unenclosed area while actively traveling on the way to another destination.

(d) No person with legal control over a common area in which smoking or the use of electronic smoking devices is prohibited by this chapter or other law shall knowingly permit the presence of ash trays, ash cans, or other receptacles designed for or primarily used for disposal of smoking waste within the common area.

(Ord. No. NS-625.6, 11-9-10; Ord. No. NS-625.8, § 4, 6-24-14)

(a) Smoking is prohibited in any new unit of a multi-unit residence.

(b) Beginning 14 months after the effective date of this ordinance [Ord. No. NS-625.6], smoking is prohibited in any existing unit of a multi-unit residence.

(Ord. No. NS-625.6, 11-9-10)

(a) No person shall engage in smoking or use of an electronic smoking device, as applicable, in any nonsmoking area.

(b) No person with legal control over any nonsmoking area shall permit smoking or use of an electronic smoking device, as applicable, in any nonsmoking area.

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

(Ord. No. NS-625.6, 11-9-10; Ord. No. NS-625.8, § 5, 6-24-14)

"No smoking" signs 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 at every enclosed building and unenclosed area where smoking and/or the use of electronic smoking devices is prohibited by this chapter or other law. Such signs shall:

(1) Make clear, where applicable, that the prohibition includes use of an electronic smoking device;

(2) Be subject to the approval of the County's Public Health Department; and

(3) Be maintained by the person or persons with legal control over the common areas.

The absence of signs shall not be a defense to a violation of any provision of this chapter.

(Ord. No. NS-625.6, 11-9-10; Ord. No. NS-625.8, § 6, 6-24-14)

(a) Every lease or other rental agreement for the occupancy of a new unit or existing unit in a multi-unit residence entered into, renewed, or continued month-to-month shall include the following:

(1) A clause providing that it is a material breach of the agreement for the tenant, or any other person subject to the control of the tenant or present by invitation or permission of the tenant, to:

(i) Smoke or use an electronic smoking device in any common area of the property other than a designated smoking area;

(ii) Smoke in a new unit;

(iii) Smoke in an existing unit after February 9, 2012; or

(iv) Violate any law regulating smoking or use of electronic smoking devices anywhere on the property.

(2) A clear description of all areas on the property where smoking or the use of electronic smoking devices is allowed or prohibited.

(3) A clause expressly conveying third-party beneficiary status to all tenants of the multi-unit residence as to provisions of the agreement concerning smoking and the use of electronic smoking devices. Such clause shall provide that any tenant of the multi-unit residence may sue another tenant to enforce these provisions of the agreement but that no tenant shall have the right to evict another tenant for a breach of any such provision of the agreement.

(b) Whether or not a landlord complies with subsection (a) above, the clauses required by that subsection shall be implied and incorporated by law into every agreement to which subsection (a) applies and shall become effective as of the earliest possible date on which the landlord could have made the insertions pursuant to subsection (a).

(c) This chapter shall not create liability in a landlord to any person for a tenant's breach of any provision concerning smoking or the use of electronic smoking devices in a lease or other rental agreement for the occupancy of a unit in a multi-unit residence if the landlord has fully complied with this section.

(d) Failure to enforce any lease or rental agreement 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. NS-625.6, 11-9-10; Ord. No. NS-625.8, § 7, 6-24-14)

(a) Infractions. Any person who violates any provision of this chapter shall be guilty of an infraction, punishable by:

(1) A fine not exceeding $100.00 for a first violation.

(2) A fine not exceeding $200.00 for a second violation.

(3) A fine not exceeding $500.00 for each additional violation within one year.

(b) Misdemeanors. Any person who violates any provision of this chapter in excess of three times within one year, shall be deemed guilty of a misdemeanor.

(c) Each day that a violation of this chapter continues shall constitute a separate violation of this chapter.

(d) The County Executive or designee is authorized to institute and pursue, in the name of the County, pursuant to the provisions of Government Code Section 25132, civil actions for the recovery of fines for violations of this chapter.

(e) In addition to other remedies provided by this chapter or by other law, any violation of this chapter may be remedied by a civil action brought by the County, including, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.

(Ord. No. NS-625.6, 11-9-10)

The provisions of this chapter are restrictive only. This chapter establishes no new rights for a person who engages in smoking or the use of electronic smoking devices and shall not limit application of Chapter V of Division B13 of this Code. Notwithstanding (i) any provision of this chapter or other provisions of this Code; (ii) any failure by any person to restrict smoking or the use of electronic smoking devices under this chapter; or (iii) any explicit or implicit provision of this Code that allows smoking or the use of electronic smoking devices in any place, nothing in this Code shall be interpreted to limit any person's legal rights under other laws with regard to smoking or the use of electronic smoking devices, including, for example, rights in nuisance, trespass, property damage, and personal injury or other legal or equitable principles.

(Ord. No. NS-625.6, 11-9-10; Ord. No. NS-625.8, § 8, 6-24-14)