Temple City Municipal Code Art. C Secondhand Smoke Control

This article may be referred to as the city's COMPREHENSIVE SECONDHAND SMOKE CONTROL ORDINANCE. (Ord. 12-964)

A. Purpose: The purposes of this article are to:

1. Protect the public health, safety, and general welfare by prohibiting smoking in public places and in the interior common areas of multi-family residential housing under circumstances where one or more persons will be exposed to secondhand smoke;

2. Ensure a cleaner and more hygienic environment for the city, its residents, its guests, and its natural resources;

3. Strike a reasonable balance between the needs of persons who smoke and the needs of nonsmokers, including children, to breathe smoke free air, by recognizing the threat to public health and the environment that smoking causes, and by acknowledging that, when these needs conflict, the need to breathe smoke free air must prevail; and

4. Recognize the right of city residents, workers, and visitors to be free from unwelcome secondhand smoke.

B. Findings: The city council hereby finds, determines, and declares that:

1. It is estimated that only fifteen percent (15%) of a cigarette's smoke is inhaled by the smoker, while eighty five percent (85%) is released into the air for others to breathe;

2. Extensive medical and scientific research confirms that tobacco smoke is harmful to smokers and nonsmokers alike, triggering eye, nose, throat, and sinus irritation; hastening lung disease, including emphysema; and causing heart disease and lung cancer;

3. In 1992, the United States surgeon general reported that involuntary smoking by inhaling secondhand smoke (also called "environmental tobacco smoke") can cause lung cancer in healthy nonsmokers and poses a significant public health hazard;

4. In 2006, the United States surgeon general concluded that a risk free level of exposure to secondhand smoke does not exist, and neither separating smokers from nonsmokers nor installing ventilation systems effectively eliminates secondhand smoke;

5. The United States environmental protection agency ("U.S. EPA") has classified secondhand smoke as a group A carcinogen, the most dangerous class of carcinogen;

6. The United States centers for disease control and prevention ("CDC") has concluded that secondhand smoke contains approximately seventy (70) cancer causing chemicals;

7. The CDC has concluded that secondhand smoke causes approximately three thousand (3,000) lung cancer deaths per year among adult nonsmokers in the United States, and that even brief exposure can damage cells in ways that set the cancer process in motion;

8. The CDC has found that secondhand smoke causes children to suffer from lower respiratory tract illness, such as bronchitis and pneumonia; exacerbates childhood asthma; and increases the risk of acute chronic middle ear infections in children;

9. The California environmental protection agency has concluded that secondhand smoke causes coronary heart disease in nonsmokers;

10. The California air resources board has put secondhand smoke in the same category as the most toxic automotive and industrial air pollutants by categorizing it as a toxic air contaminant for which no safe level of exposure exists;

11. Secondhand smoke is especially hazardous to particular groups, including those with chronic health problems, the elderly, and children;

12. Inside buildings, tobacco smoke contributes significantly to indoor air pollution;

13. The aesthetic impacts and odors of secondhand smoke pose a nuisance and annoyance to nonsmokers when in close proximity to people who are smoking;

14. Smoking in parks or recreational facilities endangers children and other users by exposing them to secondhand smoke;

15. Within parks and recreational facilities, discarded cigarette and cigar butts (which do not readily decompose) pose a particularly hazardous risk to small children who sometimes ingest the butt or who handle it while it is still hot;

16. Discarding a lighted cigarette or cigar butt onto the ground in a city park or recreational facility not only has the potential to cause a fire, but also is a major source of litter and pollution, by washing into storm drains and then ultimately contaminating the ocean;

17. In outdoor dining areas; outdoor service areas; outdoor gathering and event areas; enclosed common areas of multi-unit residential housing complexes; in proximity to entrances/exits, windows, and vents of buildings open to the public, smoking endangers the health of nonsmokers who are in the same area;

18. Neither the United States constitution nor the California constitution gives a person a constitutional right to smoke;

19. The consumption of controlled substances in certain enclosed and unenclosed areas of the city poses a risk to the health, safety, and welfare of the public, including, but not limited to, in many of the same manners as the consumption of tobacco products. (Ord. 12-964)

The following definitions shall govern construction of this article unless the context clearly requires otherwise:

CITY BUILDING OR STRUCTURE: Any building or structure (as these terms are defined by the Temple City building code) that the city of Temple City or the Temple City community redevelopment agency (or successor agency thereto) owns, controls, operates, occupies, manages, or maintains.

CITY PARK: A minipark, neighborhood park, community park, regional park, bikeway, trail, greenbelt, developed or undeveloped park land, open space land, open space parcel, or open space area that the city or the Temple City community redevelopment agency (or successor agency thereto) owns, controls, operates, occupies, manages, or maintains. It shall also include all buildings, structures, facilities, fields, or equipment within said city park.

CITY PARKING LOT OR STRUCTURE: A parking lot or structure that the city or the Temple City community redevelopment agency (or successor agency thereto) owns, controls, operates, occupies, manages, or maintains.

CITY RECREATIONAL FACILITY: An indoor or outdoor area, location, place, site, lot, building, structure, facility, or complex that is open to the general public for one or more recreational or sport activities or purposes, regardless of a fee for admission or use, that the city or the Temple City community redevelopment agency (or successor agency thereto) owns, controls, operates, occupies, manages, or maintains. It shall also include all buildings, structures, facilities, fields, or equipment within said city facility.

CITY VEHICLE: Any vehicle that is owned, leased or rented by the city, as well as any vehicle that a city employee drives, operates, or has control over in connection with said person's employment with the city.

ELECTRONIC SMOKING DEVICE: An electronic or battery operated device that delivers vapors for inhalation. This term shall include every variation and type of such devices whether they are manufactured, distributed, marketed or sold as an electronic pipe, an electronic hookah, or any other product name or descriptor.

ENCLOSED AREA: A. Any covered or partially covered area having more than fifty percent (50%) of its perimeter walled or otherwise closed to the outside (for example, a covered porch with more than 2 walls) irrespective of whether said walls or other vertical boundaries include vents or other openings; or

B. Any space open to the sky (hereinafter, "uncovered") having more than seventy five percent (75%) of its perimeter walled or otherwise closed to the outside (for example, a courtyard), irrespective of whether said walls or other vertical boundaries include vents or other openings.

1. An uncovered space of three thousand (3,000) square feet or more (for example, a field in an open air arena) is not an "enclosed area" as defined in this article.

ENCLOSED COMMON AREA: Any "enclosed area" of a multi-unit residential housing complex accessible to and usable by residents of more than one unit, including, but not limited to, hallways, enclosed stairwells, lobby areas, elevators, laundry rooms, enclosed common cooking areas, playrooms, enclosed fitness rooms, enclosed swimming pools, and enclosed parking areas.

LANDLORD: Any person other than a sublessor who owns real property leased as residential property, who lets residential property, or who manages such property.

MARIJUANA: The same definition as set forth in the "California uniform controlled substances act" 1

.

MULTI-UNIT RESIDENTIAL HOUSING COMPLEX: A premises that contains two (2) or more units rented or available to be rented and not occupied by a landlord of the premises. Multi-unit residence does not include a condominium as that term is defined in the city's zoning code.

NONPROFIT ENTITY: 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 of the entity and not to private gain. A public agency is not a nonprofit entity within the meaning of this definition.

OUTDOOR DINING AREA: A. An unenclosed area that is open to the general public, or closed to the public for a private function, where food and/or beverages are offered, served, or consumed, regardless of whether compensation is offered or given in exchange;

1. Outdoor dining area shall include, but shall not be limited to:

a. A restaurant, or a bar, or both;

b. A standing area;

c. A seating area;

d. A patio area.

2. Outdoor dining area does not include any unenclosed dining area at a private residence.

OUTDOOR PUBLIC EVENT: An activity, ceremony, event, fair, function, gathering, meeting, pageant, or program - whether athletic, civic, cultural, charitable, community, entertainment, intellectual, recreational, or social - that:

A. Is open to the general public;

B. Takes place outside of an enclosed building or structure; and

C. A person, employer, business, nonprofit entity, or the city sponsors, hosts, organizes, or operates.

OUTDOOR SEATING AREA: Bleachers, benches, or seats located outside of an enclosed building or structure - regardless of whether permanently or temporarily affixed - that is provided for an audience, viewers, spectators, or participants of an event that is adjacent to, in front of, facing, or opposite said event.

PRIVATE ENFORCER: As defined in subsection 3-2C-7B of this article.

PUBLIC PLACE: Any area, location, place, site, property, lot, building, structure, facility, or complex - public or private - open to the general public regardless of any fee or age requirement, including, but not limited to, streets, sidewalks, plazas, bars, restaurants, clubs, stores, stadiums, polling places, parks, playgrounds, restrooms, elevators, taxis, and buses.

PUBLIC TRANSIT STATION OR STOP: An enclosed or unenclosed platform, sidewalk, shelter, bench, or area where people wait for public transportation, such as a train, shuttle, or taxicab. It shall also include, but shall not be limited to, any ancillary area such as restrooms, kiosk area, storage locker area, and pedestrian path or walkway.

REASONABLE DISTANCE: A distance of twenty feet (20').

RECREATIONAL AREA: Any public or private area open to the public for recreational purposes whether or not any fee for admission is charged, including, without limitation, parks, gardens, sporting facilities, stadiums, and playgrounds.

SERVICE AREA: Any area - public or private - designated for one or more persons to wait for a transaction, entry, exit, or service of any kind, regardless of whether such service involves the exchange of money. Service area includes, but shall not be limited to, any area designated for lines or waiting for ATM machines; banks; information kiosks; restaurants and other food service venues; vending machines; tickets or admission to a theater or event; waiting areas at car washes and vehicle service establishments; and valet pick up areas.

SMOKING OR TO SMOKE: Possessing or to possess a lighted tobacco product, lighted tobacco paraphernalia, lighted marijuana, or any other lighted weed or plant (including, but not limited to, a lighted pipe, lighted hookah pipe, lighted cigar, or lighted cigarette of any kind), an electronic smoking device of any kind, or the lighting or emitting or exhaling the smoke or vapor of a tobacco product, tobacco paraphernalia, marijuana product, or any other weed or plant (including, but not limited to, a pipe, a hookah pipe, cigar, marijuana product, electronic cigarette or cigarette of any kind).

TOBACCO PRODUCT: 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.

UNENCLOSED AREA: Any area which is not an enclosed area.

UNIT:

A. A dwelling space consisting of essentially complete independent living facilities for one or more persons, including, for example, permanent provisions for living and sleeping, and any associated private outdoor spaces such as balconies and patios; and

B. Senior citizen housing and single room occupancy hotels, as defined in California Health And Safety Code section 50519(b)(1), even where lacking private cooking or plumbing facilities. "Unit" does not include lodging in a hotel or motel that meets the requirements set forth in California Civil Code section 1940(b)(2). (Ord. 14-994)

A. Smoking is prohibited in the following areas within the city of Temple City:

1. City Property: Except as otherwise provided by this article or by state or federal law, no person shall smoke or otherwise permit, allow, or suffer smoking in any city building or structure, city park or recreational facility, city parking lot or structure, or city vehicle.

2. Public Areas: Except as otherwise provided by this article or by state or federal law, no person shall smoke or otherwise permit, allow, or suffer smoking within any of the following areas:

a. Enclosed public place;

b. Service area;

c. Outdoor dining area;

d. Outdoor public event;

e. Outdoor seating area;

f. Public transit station or stop.

3. Enclosed Common Areas Of Multi-Unit Residential Housing Complex: Except as otherwise provided by this article or by state or federal law, no person shall smoke or otherwise permit, allow, or suffer smoking within any enclosed common area of any multi- unit residential housing complex.

B. Nothing in this section shall be deemed to authorize or allow smoking in any area where smoking is prohibited by state or federal law. (Ord. 12-964)

A. Except as otherwise provided by this article or by state or federal law, no person shall smoke or otherwise permit, allow, or suffer smoking within twenty feet (20') of the property line of any real property on which a public or private institution of learning for children (including preschool, kindergarten, and grades 1 - 12) exists, except when the smoking occurs within a private residence located adjacent to, or within a twenty foot (20') distance from said institution.

B. Except as otherwise provided by this article or by state or federal law, no person shall smoke or otherwise permit, allow, or suffer smoking within twenty feet (20') of any area in which smoking is prohibited under section 3-2C-3 of this article except while actively passing on the way to another destination and provided smoke does not enter any unenclosed area in which smoking is prohibited.

C. Except as otherwise provided by this article or by state or federal law, no person shall smoke or otherwise permit, allow, or suffer smoking within twenty feet (20') of any entrance, window, or air intake vent to an enclosed area in which smoking is prohibited under section 3-2C-3 of this article except while actively passing on the way to another destination and provided smoke does not enter any unenclosed area in which smoking is prohibited.

D. Nothing in this section shall be deemed to authorize or allow smoking in any area where smoking is prohibited by state or federal law. (Ord. 12-964)

A. Disposal Of Waste: No person shall dispose of used smoking or tobacco product within any area in which smoking is prohibited, including within any reasonable distance required by this article.

B. Smoker's Waste Receptacles: Except as otherwise provided by this article or by state or federal law, no person, employer, or nonprofit entity shall cause the presence or placement of a smoker's waste receptacle (for example, ashtrays or ashcans) within any area in which smoking is prohibited by law, including within any reasonable distances required by this article. Notwithstanding the foregoing, the presence of ash receptacles in violation of this subsection shall not be a defense to a charge of smoking in violation of any provisions of this article.

C. Signs: "No Smoking" or "Smoke Free" signs, with letters of not less than one inch (1") 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) or any alternative signage approved by the city manager shall be conspicuously posted by the person, employer, business, or nonprofit entity who or which has legal or de facto control of such place at each entrance to a public place in which smoking is prohibited by this article has occurred, or is likely to occur. The city manager shall post signs at each entrance to a public place in which smoking is prohibited by this article that is owned or controlled by the city. Signage required by this subsection shall not be subject to title 9, chapter 1, article L, "Signs", of this code. Notwithstanding the requirements of this section, the presence or absence of signs shall not be a defense to the violation of any other provision of this article.

D. Required Lease Terms:

1. Every lease or other rental agreement for the occupancy of a unit within a multi-unit residential housing complex entered into, renewed, or continued month to month on or after July 1, 2013, shall include:

a. A clause stating that smoking is prohibited within any enclosed common area, and a reference to subsection 3-2C-3A3 of this article;

b. A clause stating that it is a material breach of the lease or agreement to cause, permit, aid, abet, or conceal smoking within any interior common area of the multi-unit residential housing complex; and

c. A clause stating that all lawful occupants of the units in the multi-unit residential housing complex are third party beneficiaries of the clauses required by subsections D1a and D1b of this section.

2. The lease or agreement terms required by subsection D1 of this section are incorporated by force of law into any lease or other agreement for the occupancy of a unit in a multi-unit residential housing complex made on or after the effective date of this section which lease does not fully comply with subsection D1 of this section.

E. Intimidation: No person shall intimidate, threaten, or effect a reprisal, or retaliate against another person who seeks to attain compliance with one or more of this article's provisions.

F. Private Regulations: Nothing in this article prohibits any person, employer, or nonprofit entity with legal control over any property from prohibiting smoking on any part of such property, even if smoking is not otherwise prohibited in that area. (Ord. 12-964)

A. Any person who causes, permits, aids, abets, suffers, or conceals a violation of any provision of this article shall be guilty of a misdemeanor offense punishable in accordance with title 1, chapter 2 of this code.

B. The city council declares that nonconsensual exposure to secondhand smoke constitutes a public nuisance, and that the uninvited presence of secondhand smoke on real property is a nuisance and a trespass.

C. The remedies provided by this article are cumulative and in addition to any other remedy available at law or in equity.

D. The city prosecutor, city attorney, any peace officer, any city code enforcement officer, or any other city official designated by the city manager may enforce this article. (Ord. 12-964)

A. The city attorney or city prosecutor may bring a civil action to enforce this article and to obtain the remedies specified below or otherwise in equity or at law.

B. Any person acting for the interest of himself, herself, or of its members, or of the general public (hereinafter, "private enforcer") may bring a civil action to enforce this article with the remedies specified below, if both of the following requirements are met:

1. The action is commenced more than sixty (60) days after the private enforcer has given written notice of the alleged violation of this article to the city attorney and to the alleged violator; and

2. No person acting on behalf of the city or the state has commenced or is prosecuting an action regarding the violation(s) which was or were the subject of the notice on the date the private action is filed.

C. A private enforcer shall provide a copy of his, her, or its action to the city attorney within seven (7) calendar days of filing it.

D. Upon settlement or judgment of any action brought pursuant to subsection G of this section, the private enforcer shall give the city attorney a notice of that settlement or judgment and of the final disposition of the case. No private enforcer may settle such an action, unless the city attorney or the court determines the settlement to be reasonable in light of the purposes of this article and any settlement in violation of this requirement may be set aside upon motion to a court of competent jurisdiction by the city attorney or city prosecutor.

E. Upon proof of a violation of this article, the court shall award the following:

1. Damages in the amount of either:

a. Actual damages according to proof;

b. Two hundred fifty dollars ($250.00) for each violation of this article (hereinafter, "statutory damages") where insufficient or no proof of actual damages has been proved. Unless otherwise specified in this article, each day of a continuing violation shall constitute a separate violation. Notwithstanding any other provision of this article, no private enforcer suing on behalf of the general public shall recover statutory damages based upon a violation of this article 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 earlier adjudication.

2. Restitution to the appropriate party or parties of the gains obtained by way of violation of this article.

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 and safety.

4. Attorney fees and costs reasonably incurred by a prevailing party. In any action brought on behalf of the city, attorney fees are not recoverable by any person as a prevailing party unless the city manager, or a designee thereof, or an attorney for, and on behalf of, the city, elects in writing to seek recovery of the city's attorney fees at the initiation of that individual action or proceeding. Failure to make such an election precludes any entitlement to, or award of, attorney fees in favor of any person or the city.

a. Provided that the city has made an election to seek attorney fees, an award of attorney fees to a person shall not exceed the amount of reasonable attorney fees incurred by the city in that action or proceeding.

F. Upon proof of at least one violation of this article, a private enforcer, the city attorney, city prosecutor, any peace officer or code enforcement official may obtain an injunction against further violations of this article or as, to small claims court actions, a judgment payable on condition that a further violation of this article occur within a time specified by the court.

G. Notwithstanding any legal or equitable bar, a private enforcer may bring an action to enforce this article solely on behalf of the general public. When a private enforcer does so, nothing about such an action shall act to preclude or bar the private enforcer from bringing a subsequent action on his, her, or its own behalf based upon the same facts.

H. Nothing in this article shall prohibit a private enforcer from bringing a civil action in small claims court to enforce this article, as long as the amount in demand and the relief sought are within the jurisdiction of small claims court. (Ord. 12-964)

If any section, subsection, paragraph, sentence, clause or phrase of this article is declared by a court of competent jurisdiction to be unconstitutional or otherwise invalid, such decision shall not affect the validity of the remaining portions of this article. The city council declares that it would have adopted this article, and each section, subsection, sentence, clause, phrase or portion thereof, irrespective of the fact that any one or more sections, subsections, phrases, or portions be declared invalid or unconstitutional. (Ord. 12-964)