Sonoma County Municipal Code § 32-17 Smoking prohibited in common areas except designated smoking areas

(a) Findings. The board of supervisors of the county finds that:

(1) Smoking is the primary cause of fire-related injuries and deaths in the home, as evidenced by the following:

(a) Cigarettes, cigars, pipes and other smoking materials are the leading cause of fire deaths in the United States and produced an estimated one hundred forty thousand seven hundred (140,700) smoking-related fires, seven hundred twenty (720) deaths, one thousand five hundred eighty (1,580) injuries, and $530 million in direct property damage in 2007.

(b) One (1) in four (4) fatalities from home fires caused by smoking is not the smoker whose cigarette started the fire; smokers' neighbors and friends account for twenty-five (25) percent of all fire deaths (not including the fire deaths of the smokers responsible for starting the fires) caused by smoking.

(c) Smoking at a residence where long-term oxygen therapy takes place is very dangerous as oxygen is a fire accelerant. In a study of fatalities resulting from residential fires caused by smoking during long-term oxygen therapy, twenty-seven (27) percent of the fatalities occurred in multifamily dwellings.

(d) The United States Fire Administration recommends people smoke outdoors.

(2) Nonsmokers who live in multi-unit dwellings can be exposed to neighbors' secondhand smoke, as evidenced by the following:

(a) Secondhand smoke can seep under doorways and through wall cracks, open windows, open doorways and heating, ventilation and air conditioning systems.

(b) The United States Surgeon General has concluded that eliminating smoking in indoor spaces is the only way to fully protect nonsmokers from secondhand smoke exposure and that separating smokers from nonsmokers, cleaning the air, and ventilating buildings cannot completely prevent secondhand smoke exposure.

(3) Most Californians do not smoke and a majority favor limitations on smoking in multi-unit residences, as evidenced by the following:

(a) In 2008, approximately eighty-seven (87) percent of Californians and ninety-one (91) percent of California women were non-smokers.

(b) Sixty-nine (69) percent of California voters surveyed in 2008 favored limiting smoking in outdoor common areas of apartment buildings, and seventy-eight (78) percent supported laws that create nonsmoking sections in apartment buildings, where all the apartments, balconies and patios in that section would be smoke-free.

(c) Sixty-two (62) percent of California renters surveyed in 2004 believed there was a need for laws to limit smoking in apartment buildings.

(4) There is no constitutional right to smoke.

(b) Purpose. This article is adopted to (1) protect the public health, safety and welfare by discouraging the inherently dangerous behavior of smoking around non-tobacco users by protecting children from exposure to smoking where they live and play and by protecting the public from nonconsensual exposure to secondhand smoke in and around their homes and (2) to strike a reasonable balance between the need of persons who smoke and the need of nonsmokers to breathe smoke-free air, and to recognize that, where these needs conflict, the need to breathe smoke-free air has priority.

(Ord. No. 5947, § 1, 9-13-2011.)

The following words and phrases, whenever used in this article, shall be construed as defined in this section, unless it is apparent from the context that they have a different meaning.

"Common area" means every enclosed area or unenclosed area of a multi-unit residence that residents of more than one (1) unit of that multi-unit residence are entitled to enter or use, including but not limited to halls, paths, lobbies, courtyards, elevators, stairwells, community rooms, playgrounds, gym facilities, swimming pools, parking garages, parking lots, shared restrooms, shared laundry rooms, common cooking areas and shared eating areas.

"Enclosed area" means all space between a floor and ceiling where the space is closed in on all sides by solid walls or windows that extend from the floor to the ceiling. An enclosed area may have openings for ingress and egress, such as doorways or passageways. An enclosed area includes all areas within that space, such as hallways and areas screened by partitions that do not extend to the ceiling or are not solid.

"Existing unit" means any unit that is not a new unit.

"Landlord" means any person who owns property rented 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.

"Multi-unit residence" means a building that contains two (2) or more attached dwelling units, including but not limited to apartments, condominiums, senior citizen housing, except the following specifically excluded types of housing:

(a) A mobile home park;

(b) A marina or port;

(c) A single-family home;

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

"New unit" means a unit that is issued an occupancy clearance more than one hundred eighty (180) days after the effective date of this ordinance and also means a unit that is rented for residential use for the first time more than one hundred eighty (180) days after the effective date of this chapter.

"Nonsmoking area" means any enclosed area or unenclosed area of a multi-unit residence or multi-unit residence common area in which smoking 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.

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

"Smoke" means the gases or particles released into the air as a result of combustion, when the apparent or usual purpose of the combustion is human inhalation of the byproducts, except when the combusting material contains no tobacco or nicotine and the purpose of inhalation is solely olfactory, such as, for example, smoke from incense.

"Smoking" means inhaling, exhaling, burning or carrying any lighted cigar, cigarette, pipe, hookah or tobacco plant.

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

"Unit" 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 the following: an apartment, a condominium, a townhouse and a room in a homeless shelter.

(Ord. No. 5947, § 1, 9-13-2011.)

(a) Smoking is prohibited in all common areas, except that 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 smoking area provided that at all times the designated smoking area complies with subsection (b) below.

(b) A designated smoking area shall:

(1) Be in an unenclosed area;

(2) Be located at least twenty-five (25) feet in any direction from any operable doorway, window, vent or other opening into an enclosed area;

(3) Be clearly identified by conspicuous signs; and

(4) Be located at least twenty-five (25) feet from unenclosed areas that are frequently used by children, including but not limited to, locations such as playgrounds and swimming pools.

(c) No person with legal control over a common area in which smoking is prohibited by this article 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 area.

(Ord. No. 5947, § 1, 9-13-2011.)

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

(b) Beginning fourteen (14) months after the effective date of this chapter, smoking is prohibited in any existing unit of a multi-unit residence.

(Ord. No. 5947, § 1, 9-13-2011.)

(a) No person shall engage in smoking in any nonsmoking area.

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

(1) Requested that a person who is smoking refrain from smoking; and

(2) Requested that a person who is smoking leave the place if the person refuses to stop smoking after being asked to stop.

This article 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.

(c) No person shall intimidate, harass, or otherwise retaliate against any person who seeks compliance with this article. Moreover, no person shall intentionally or recklessly expose another person to smoke in response to that person's effort to achieve compliance with this article. Violation of this subsection shall constitute a misdemeanor.

(Ord. No. 5947, § 1, 9-13-2011.)

"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 building and unenclosed area where smoking is prohibited by this article or other law. Such signs are not required at the individual entrance and exit of each multi-unit residence. Such signs shall 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 article.

(Ord. No. 5947, § 1, 9-13-2011.)

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

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

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

(3) A fine not exceeding five hundred dollars ($500.00) for each additional violation within one (1) year.

(b) Misdemeanors. Any person who violates any provision of this article in excess of three (3) times within one (1) year shall be deemed guilty of a misdemeanor.

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

(d) The director of the department of health services, or his/her 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 violation of this article.

(e) In addition to other remedies provided by this article or by other law, any violation of this article 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. In any such action, the county may seek reimbursement for the costs of any investigation, inspection or monitoring survey which led to the establishment of the violation, and for the reasonable costs of preparing and bringing administrative action under this article. The foregoing remedy shall be deemed nonexclusive, cumulative and in addition to any other remedy the county may have at law or in equity, including but not limited to injunctive relief to prevent violations of this article.

(Ord. No. 5947, § 1, 9-13-2011.)

The county health officer, or his/her designee, in conjunction and coordination with, where feasible, appropriate health or safety oriented community-based organizations and coalitions, shall engage in a continuing program to explain and clarify the purposes of this chapter to citizens affected by it, and to guide business owners, operators and managers in their compliance with it.

(Ord. No. 5947, § 1, 9-13-2011.)

It is not the intent of this chapter to regulate smoking where such regulation has been preempted by state or federal laws. If the board of supervisors, or its designee, determines that a provision included herein has been preempted by federal or state law, that preempted provision shall be automatically rescinded from this chapter. Such rescission shall not affect the validity of the remaining portions of this chapter.

(Ord. No. 5947, § 1, 9-13-2011.)