Tiburon Municipal Code Ch. 28 Smoking and Tobacco Regulations

Footnotes:

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Editor's note— Ord. No. 531 N.S., §§ 2, 3, adopted July 20, 2011, repealed the former Ch. 28, §§ 28-1—28-14, and enacted a new Ch. 28 as set out herein. The former Ch. 28 pertained to similar subject matter and derived from Ord. No. 386 N.S., § 2(part).

(a) The town council finds that:

(1) The Surgeon General reports more than four hundred ninety thousand people die in the United States from smoking-related diseases and exposure to secondhand smoke every year, making commercial tobacco use the nation's leading cause of preventable death, and in 2018, commercial tobacco-related disease and death cost the United States six hundred billion dollars ($600,000,000,000.00) in healthcare spending and lost productivity.

(2) The World Health Organization estimates that commercial tobacco kills eight million seven hundred thousand people per year and one million three hundred thousand of those people are those who do not use tobacco products, including infants and children, and that commercial tobacco causes over one trillion four hundred billion dollars ($1,400,000,000,000.00) in economic damage globally each year.

(3) Given current trends, five million six hundred thousand of today's Americans who are younger than eighteen years of age are projected to begin using tobacco products regularly and then die prematurely from a commercial tobacco-caused illness later in their life;

(4) Commercial tobacco use is the number one cause of preventable death in California and continues to be an urgent health issue as it can cause disease in nearly all organs of the body, is responsible for eighty-seven percent of lung cancer deaths, thirty-two percent of coronary heart disease deaths, and seventy-nine percent of all cases of chronic obstructive pulmonary disease in the United States.

(5) Commercial tobacco use among priority populations in California contributes to health disparities and creates significant barriers to health equity.

(6) Reliable scientific studies, including studies by the Surgeon General of the United States and studies commissioned and assessed by the U.S. Environmental Protection Agency have shown that breathing sidestream or secondhand smoke is a significant health hazard to nonsmokers; particularly to children and teens, elderly people, individuals with cardiovascular disease, and individuals with impaired respiratory function;

(7) Health hazards induced by exposure to environmental tobacco smoke include lung and other forms of cancer, respiratory infection, decreased respiratory function, decreased exercise tolerance, broncho-constriction and bronco-spasm, and that the most common cause of premature death from environmental tobacco smoke is heart disease;

(8) Reliable scientific studies assessed by the U.S. Environmental Protection Agency have found that sidestream and secondhand tobacco smoke causes the death of at least fifty three thousand nonsmokers annually and is a leading cause of premature death and disability among nonsmokers;

(9) Nonsmokers with allergies, respiratory diseases and those who suffer other ill effects of breathing sidestream or secondhand tobacco smoke may experience a loss of job productivity or may be forced to take periodic sick leave because of adverse

(10) Persons, particularly employees, have a right to a smoke-free environment if they desire;

(11) Tobacco smoke is a leading cause of fires, and cigarette and cigar burns and ash stains on merchandise and fixtures cause economic losses to businesses;

(12) Secondhand smoke can seep under doorways and through wall cracks and through ventilation systems;

(13) State law prohibits smoking in virtually all indoor places of employment reflecting the state policy to protect against the dangers of exposure to secondhand smoke;

(14) A local ordinance that authorizes residential rental agreements to include a prohibition on smoking of tobacco products within the common areas of multi-unit residences is not prohibited by state law;

(15) California law declares that anything which is injurious to health or obstructs the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance.

(16) Research indicates that residing near a tobacco retailer is associated with increased youth initiation and reduced cessation among people who smoke who are trying to quit.

(17) Youth are particularly vulnerable to nicotine addiction. Research indicates that:

a. In California in 2023, approximately seven point three percent of high school students reported current use of commercial tobacco, of which eighty-five point six percent used flavored products.

b. In 2023, five point nine percent of California high school students reported current use of vapes, of which eighty-nine point one percent used flavored vapes.

c. Ever use of electronic smoking devices among California high school students was eighteen point three percent in 2023.

d. Each year in California, thirty-eight thousand seven hundred children under the age of eighteen try cigarettes for the first time.

e. In 2023, Marin County youth reported smoking cigarettes at a rate three times the California state average.

f. Seventeen percent of 11th grade students in Marin County report that they currently vape.

(18) Vaping products contain highly addictive nicotine as well as other harmful substances and cartridges contain as much nicotine as a pack of cigarettes per cartridge.

(19) Flavored vaping products are designed, flavored and marketed to attract adolescents and frequently these young smokers move to smoking cigarettes.

(20) The greatest impact on reducing adolescent vaping would be to prohibit the sale of products within the community thereby reducing access to a dangerous additive nicotine product.

(21) California retailers continue to sell tobacco products to underage consumers, as unlawful sales to underage individuals jumped from seventeen point nine percent in 2019 to twenty-seven point seven percent in 2022.

(22) In addition to the harm caused by predatory marketing to youth resulting in lifetime addiction, the harms of ongoing commercial tobacco use take a particularly deadly toll on older people who use commercial tobacco. Older people who smoke have been targeted by the tobacco industry, including in couponing and giveaway campaigns in nursing homes, and product development to address their fears of disease, which was an impetus for tobacco industry development of filters and light/low-tar cigarettes. Quitting smoking even after the age of fifty is associated with dramatic improvements in life expectancy, adding four to seven years of life expectancy. Comprehensive commercial tobacco sales bans are critical to help older people who use commercial tobacco to avoid the imminent threat of disabling diseases and early death.

(23) Nicotine is a highly addictive neurotoxin, one that can cause many harmful effects. For example, nicotine use by youth can alter brain chemistry and interfere with brain circuits responsible for learning and attention, nicotine can damage DNA, nicotine consumption can promote tumor growth, and second hand smoke and aerosols can force non-users to absorb nicotine involuntarily.

(24) Eighty-seven percent of nonsmokers showed detectable levels of cotinine (a metabolite of nicotine) in their blood, the most likely source of which is secondhand smoke exposure.

(25) Accordingly, the town council finds and declares that the purposes of this chapter are:

a. To protect public health, safety and general welfare by prohibiting tobacco smoking in certain public places and in places of employment; and

b. To guarantee the right of nonsmokers to breathe air free of toxins from combustion of tobacco, tobacco product, tobacco-like product, spices or any other plant or herbal materials to the extent that local regulation of sources of combustion of those materials is allowed by law and to recognize that the need to breathe air free of the toxins produced by smoking has priority over the desire to smoke.

c. To end commercial tobacco sales in Tiburon to protect the health, safety and welfare of our residents due to the devastating health, environmental, and economic consequences.

d. The town council further finds it is within its basic police power to implement and enforce the provisions of this chapter.

(Ord. No. 531 N.S., § 3, 7-20-2011; Ord. No. 589 N.S., 9-2-2020; Ord. No. 614 N.S. , § 1(Exh. 1), 11-5-2025)

The following words and phrases, whenever used in this chapter, shall be construed as defined in this section:

"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 only incidental to the consumption of such beverages.

"Business" means any sole proprietorship, joint venture, corporation or other business entity formed for profit-making purposes, including retail establishments where goods or services are sold, as well as professional corporations and other entities where legal, medical, dental, engineering, architectural or other professional services are delivered.

"Child care facility" means any family day care regulated by Sections 1597.30 through 1597.621 of the California Health and Safety Code (or successor sections thereto) and any day care center for children regulated by Section 1596.90 et seq. of the California Health and Safety Code (or any successor section thereto). It does not include foster homes or residential care facilities.

"Characterizing Flavor" means a distinguishable taste or aroma or both, other than the taste or aroma of tobacco, imparted by a Tobacco Product or any byproduct produced by the Tobacco Product. Characterizing Flavors include but are not limited to, tastes or aromas related to any fruit, chocolate, vanilla, honey, candy cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb or spice. A tobacco Product shall not be determined to have a Characterizing Flavor solely because of the use of additives or flavorings or the provision of ingredient information. Rather it is the presence of a distinguishable taste or aroma, or both, as described in the first sentence of this definition, that constitutes a Characterizing Flavor.

"Constituent" Any ingredient, substance, chemical, or compound, other than tobacco, water, or reconstituted tobacco sheet that is added by the manufacturer to a tobacco product during the processing, manufacture, or packing of the tobacco product.

"Common area" means every enclosed area and 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, for example, halls, paths, lobbies, courtyards, elevators, stairs, community rooms, playgrounds, gym facilities, swimming pools, parking garages, parking lots, restrooms, laundry rooms, cooking areas, and eating areas.

"Common interest complex" means a multi-unit residence that is a condominium project, a community apartment project, a stock cooperative, or a planned development as defined by California Civil Code section 4100, or successor sections thereto.

"Delivery sale" means the sale of any tobacco product to any person for personal consumption and not for resale when the sale is conducted by any means other than an in-person, over-the-counter sales transaction in any retail establishment that sells tobacco products. Delivery sale includes the sale of any tobacco product when the sale is conducted by telephone, other voice transmission, mail, the internet, or app-based service. Delivery sale includes delivery by licensees or third parties by any means, including curbside pickup or via shipment by a common carrier.

"Department" means any agency or person designated by the Town to enforce or administer the provisions of this chapter.

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

"Electronic smoking device" means an electronic and/or battery-operated device that can be used to deliver an inhaled dose of nicotine, or other substances, including a component, part, or accessory of such a device, whether or not sold separately. "Electronic Smoking Device" includes any such device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or descriptor. "Electronic Smoking Device" does not include any nicotine cessation product that has been authorized by the U.S. Food and Drug Administration to be marketed and for sale as "drugs," "devices," or "combination products," as defined in the Federal Food, Drug, and Cosmetic Act.

"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 a nonprofit entity.

"Employer" means any person, partnership, corporation, including a municipal corporation, or nonprofit entity, which employs the services of one or more individual persons.

"Enclosed area" means an area in which outside air cannot circulate freely to all parts of the area, and includes an area that has:

(1) Any type of overhead cover, whether or not that cover includes vents or other openings, and at least three walls or other vertical constraint to airflow including, but not limited to, vegetation of any height, whether or not those boundaries include vents or other openings; or

(2) Four walls or other vertical constraints to airflow including, but not limited to, vegetation that exceeds six feet in height, whether or not those constraints include vents or other openings.

"Flavored Tobacco" means any tobacco product that contains a constituent that imparts a characterizing flavor

"Health department" means the County of Marin Health Department.

"Landlord" means any person who owns real property leased as residential property, any person who lets residential property, or any person who manages such property, except that "landlord" does not include sublessors.

"Minor" means any individual who is less than twenty-one years old.

"Multi-unit residence" means, for purposes of this chapter, a premises containing two or more units, including, but not limited to, a common interest complex, except the following specifically excluded types of housing as defined in chapter 16 of this Code:

(1) A single-family dwelling, including enclosed areas and unenclosed areas on its premises;

(2) A detached two-family dwelling, including enclosed areas and unenclosed areas on its premises;

(3) A mobile home park unit, including enclosed and unenclosed areas on its premises.

"Nicotine" means any form of the chemical nicotine, including any salt or complex, regardless of whether the chemical is naturally or synthetically derived. Nicotine also includes nicotine analogs.

"Nicotine analog" means a substance with a chemical structure that is substantially similar to the chemical structure of nicotine, and:

(1) has an addictive effect that is substantially similar to the addictive effect of nicotine; or

(2) has, or is represented as having, an effect on the human body that is substantially similar to that of nicotine.

Any communication by, or on behalf of, the manufacturer, distributor, or retailer of a tobacco product that indicates that the product contains a nicotine analog, as defined, constitutes presumptive evidence that the product contains a nicotine analog.

"Nonprofit entity" means any corporation, unincorporated association or other entity created for charitable, philanthropic, educational, character-building, political, social 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 "nonprofit entity" for purposes of this chapter.

"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).

"Opening" means and shall include any main entrances, exits, operable windows, and ventilation intake systems.

"Person" means any natural person, 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 actual 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 and outdoor work areas, construction sites, vehicles used in employment or for business purposes, taxis, employee lounges and restrooms, conference and banquet rooms, employee cafeterias, warehouses, long-term care facilities, and lobbies and hallways. A private residence is not a place of employment unless it is used as a child care or residential health care facility.

"Premises" means a piece of land and any improvements upon it such as is usually described in a deed, deed of trust or mortgage; including 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 open to the public, including, but not limited to, sports events, entertainment, speaking performances, ceremonies, pageants, parades, fairs and farmers' markets.

"Public park" means any parkland open to the public that is owned by the town and is designated "parks and recreation" on the zoning map of the town.

"Public place" means any place, publicly or privately owned, which is open to the general public regardless of any fee or age requirement, including, but not limited to: bars, restaurants, clubs, stores, stadiums, parks, playgrounds, taxis, buses, bus shelters, public transportation facilities, hotels and motels, bed and breakfast facilities, fairs, farmers' markets, theaters, sidewalks and streets. "Public place" does not mean within private vehicles in or on public places.

"Reasonable distance" means a distance of at least twenty-five feet in any direction from an area in which smoking is prohibited.

"Recreational 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 "recreational area" includes, but is not limited to, parks, open spaces, picnic areas, playgrounds, sports fields, tennis courts, walking paths, gardens, hiking trails, bike paths, riding trails, swimming pools, marinas, and amusement parks.

"Restaurant" means any coffee shop, cafeteria, sandwich stand, private and public school cafeteria, including any associated outdoor eating area, and any other eating establishment which gives or offers for sale food to the public, guests or employees, as well as kitchens in which food is prepared on the premises for serving elsewhere, including catering facilities.

"Retail tobacco store" means a retail store utilized primarily for the sale of tobacco products, tobacco paraphernalia, or smoking products, and in which the sale of other products is merely incidental.

"Sale" or "Sell" means any transfer, exchange, barter, gift, offer for sale, or distribution for a commercial purpose, in any manner or by any means whatsoever.

"Self-service merchandising" means open display of tobacco products or tobacco paraphernalia in a manner that is accessible to the general public without the assistance of the retailer or employee of the retailer. This includes point-of-sale tobacco promotional products (such as tobacco industry tee shirts, caps, key chains, give-aways), to which the public has access without the assistance of an employee. A vending machine is a form of self-service displays.

"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 information kiosks, automatic teller machines (ATMs), ticket lines, bus stops or shelters, transit shelters, ferry terminals, mobile vendor lines, or taxi cab stands.

"Smoking" means engaging in an act that produces gas, particles, vapor or smoke by means of combustion, electrical ignition or vaporization, where the apparent or usual purpose of said act is the human inhalation of the byproducts. "Smoking" does not include acts where (a) the combustion or vaporization material contains no tobacco or nicotine and (b) the purpose is solely olfactory, such as producing smoke from incense. "Smoking" does include the use of a lighted pipe, lighted cigar or lighted cigarette, lighted hookah, electronic smoking device or other device of any kind containing tobacco, tobacco product, tobacco-like product, marijuana, spices, or any other plant or herbal materials to the extent that local regulation of such lighted device, product or material is allowed by law.

"Tobacco paraphernalia" means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the smoking, preparation, storing, or consumption of tobacco, marijuana, or other similar products.

"Tobacco product" means:

(1) Any product containing, made, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, snuff, flavored tobacco; and

(2) Any electronic smoking device as defined in this section and any substances that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine and whether or not sold separately; or

(3) Notwithstanding any provision of subsections (1) and (2) to the contrary, "tobacco product" includes any component, part, or accessory of a tobacco, nicotine, or nicotine analog product, whether or not sold separately. "Tobacco product" does not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where such product is marketed and sold solely for such an approved purpose.

"Tobacco retailer" means any person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco, tobacco products, tobacco paraphernalia, or smoking products within the corporate limits of the Town of Tiburon. "Tobacco retailing" shall mean the doing of any of the above. This definition is without regard to the quantity of tobacco, tobacco products, or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange.

"Tobacco vending machine" means any machine, appliance, or other mechanical device operated by currency, token, debit card, credit card, or any other form of payment that is designed or used for vending purposes, including, but not limited to, machines or devices that use remote control locking mechanisms.

"Town" means the Town of Tiburon.

"Town manager" means the Town Manager of the Town of Tiburon, or his or her designee.

"Town open space" means any open space land or easement owned by the town and designated as "open space" on the zoning map of the town.

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

"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, but is not limited to, an apartment; an attached two-family dwelling; 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 dwelling; and an accessory dwelling unit or guest house appurtenant to a single-family dwelling.

"Vendor-assisted" means only a store employee has access to the tobacco product and assists the customer by supplying the product. The customer does not take possession of the product until it is purchased.

(Ord. No. 531 N.S., § 3, 7-20-2011; Ord. No. 553 N.S., § 2.I(A), (B), 9-17-2014; Ord. No. 571 N.S., § 2(A)—(H), 5-17-2017; Ord. No. 579 N.S., § 2(B)—(M), 7-18-2018; Ord. No. 589 N.S., 9-2-2020; Ord. No. 614 N.S. , § 1(Exh. 1), 11-5-2025)

Smoking and use of tobacco products is prohibited in all town-owned, town-leased, and town-operated vehicles, including jitneys and buses and other means of public transit under the authority of the town, and in all enclosed residential and non-residential facilities, buildings, or structures owned, leased, occupied and/or controlled by the town.

(Ord. No. 531 N.S., § 3, 7-20-2011; Ord. No. 571, § 2(I), 5-17-2017; Ord. No. 579 N.S., § 2(A), (N), 7-18-2018; Ord. No. 589 N.S., 9-2-2020)

(a) Smoking and the use of tobacco products are prohibited in the enclosed areas of the following places within the town:

(1) Public places; and

(2) Multi-unit residences and common areas; and

(3) Dining areas; and

(4) Service areas.

(b) Smoking and the use of tobacco products are prohibited in all other enclosed areas except as provided below:

(1) Inside private vehicles when no minors are present;

(2) Inside private single-family dwellings, except when used as a child care facility or a health care facility;

(3) Inside detached accessory structures appurtenant to private single-family dwellings, including accessory dwelling units;

(4) Inside private detached two-family dwellings and detached accessory structures appurtenant thereto;

(5) Inside retail tobacco stores, only if:

(A) The retail tobacco store does not sell edible products, including, for example, food, water, or drinks, and does not allow such products to be consumed on the premises; and

(B) The retail tobacco store prohibits minors from entering the store at all times.

(6) Inside an enclosed place of employment that employs only the owner and no other employees or any other independent contractors routinely spending time performing work in the enclosed areas, provided that:

(A) The place of employment is not a public place, and

(B) The enclosed area containing the place of employment does not share a ventilation system with any other enclosed place of employment or public place.

(Ord. No. 531 N.S., § 3, 7-20-2011; Ord. No. 579 N.S., § 2(A), (O), 7-18-2018; Ord. No. 589 N.S., 9-2-2020)

(a) Smoking and the use of tobacco products are prohibited in the unenclosed areas of the following places within the town:

(1) Recreational areas;

(2) Service areas;

(3) Public places, including streets and sidewalks open to the public;

(4) Dining areas;

(5) Bars;

(6) Common areas of multi-unit residences.

(b) Notwithstanding subsection (a) above, multi-unit residences, places of employment, town-owned or controlled public places, and public events may designate an unenclosed area where smoking or use of tobacco products is permitted if the area meets all of the following criteria:

(1) The area is located a reasonable distance, as defined in this chapter, 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 nearby premises are established;

(2) The area does not include, and is at least one hundred feet 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 twenty-five percent of the total unenclosed area of a multi-unit residence if located within the premises of a multi-unit residence;

(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.

(c) Nothing in this section prohibits any person or nonprofit entity with legal control over any property from prohibiting smoking and tobacco product use on any part of such property, even if smoking or the use of tobacco products is not otherwise prohibited in that area.

(Ord. No. 531 N.S., § 3, 7-20-2011; Ord. No. 571, § 2(J), (K), 5-17-2017; Ord. No. 579 N.S., § 2(A), (P), 7-18-2018; Ord. No. 589 N.S., 9-2-2020)

(a) Each employer having an enclosed place of employment located within the town shall adopt, implement, make known and maintain a written smoking policy that shall contain the following requirements:

Smoking is prohibited in all enclosed facilities within a place of employment without exception. This includes common work areas, auditoriums, classrooms, conference and meeting rooms, private offices, elevators, hallways, medical facilities, cafeterias, employee lounges, stairs, restrooms, nonpersonal vehicles and all other enclosed facilities.

(b) The smoking policy shall be communicated to all employees within thirty days of its adoption, and at least annually thereafter.

(c) All employers shall comply with these nonsmoking provisions and shall be responsible for their implementation in their places of employment.

(d) "No Smoking" signs shall be conspicuously posted at building entrances and in employee lounges, cafeterias and lunchrooms.

(e) All employers shall supply a written copy of the smoking policy to any existing or prospective employee.

(f) Places of employment exempt from the prohibition on smoking in other sections of this chapter shall also be exempt from this section.

(Ord. No. 531 N.S., § 3, 7-20-2011; Ord. No. 589 N.S., 9-2-2020)

(a) With respect to all existing units of multi-unit residences in which smoking was not prohibited by this chapter prior to August 17, 2018, said units shall become subject to the provisions of this chapter sixty days following August 17, 2018.

(b) Notwithstanding subsection (a) above to the contrary, each and every unit of a multi-unit residence, the occupancy of which becomes available for the first time on or after August 17, 2018, shall be subject to and controlled by this chapter.

(c) The homeowners association, or its duly-appointed management agent, for each common interest complex subject to this chapter shall, within sixty days of August 17, 2018:

(1) Establish a smoke-free policy that meets or exceeds the applicable provisions of this chapter with respect to the indoor or outdoor areas of the entire premises;

(2) Notify all owners and residents within the common interest complex of the smoke-free policy, including a provision that explains that violations will be treated in the same way as noise pollution or other rules;

(3) Post signs at the parking lot entrances that notify owners, residents, their visitors and contractors about the smoke-free policy; and

(4) Establish a process for addressing complaints, similar to that used for violations of other homeowner association policies.

(Ord. No. 531 N.S., § 3, 7-20-2011; Ord. No. 553 N.S., § 2.II., 9-17-2014; Ord. No. 579 N.S., § 2(A), (Q), 7-18-2018; Ord. No. 589 N.S., 9-2-2020)

(a) Required lease terms. Every lease or other agreement for the occupancy of a unit in a new or existing multi-unit residence shall, consistent with provisions of section 28-7, include all of the following:

(A) A clause stating that smoking is prohibited in the unit;

(B) A clause stating that it is a material breach of the lease or agreement to 1) violate any law regulating smoking while on the premises; 2) smoke in any unit; 3) smoke in a common area of the premises except in an unenclosed designated smoking area, provided that one lawfully exists pursuant to section 28-5(b);

(C) A clause stating that all lawful occupants of the multi-unit residence are express third-party beneficiaries of the above-required clauses.

(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) above applies.

(c) A tenant who breaches a smoking or tobacco product use provision of a lease or other agreement or knowingly allows another person to do so shall be liable to:

(1) The landlord; and

(2) To any lawful occupant of the multi-unit residence who is exposed to secondhand smoke as a result of that breach. A landlord shall not be liable to any person for a tenant's breach of smoking or tobacco product use provisions if the landlord has fully complied with the requirements of this chapter.

(d) Failure to enforce any smoking or tobacco product use provision of a lease or other agreement on one or more occasions shall not constitute a waiver of the lease or agreement provisions required by this section and shall not prevent future enforcement of any such smoking regulation on another occasion.

(e) Disclosure of designated smoking area. Every landlord shall maintain a diagram that illustrates the precise location and configuration of any designated smoking area. This diagram shall accompany every new lease, lease renewal, lease extension, or other agreement for the occupancy of a unit in a multi-unit residence.

(f) "No smoking" 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 crossed by a red bar) shall be clearly and conspicuously posted in the common areas of multi-unit residences, at every entrance and exit, and on every floor near an elevator or common stairwell. Such signs shall be maintained by the landlord. The absence of signs shall not be a defense to a violation of any provision of this chapter.

(g) This section shall not create additional liability for a landlord for a person's violation of this chapter provided that the landlord has fully complied with the required disclosure, sign posting, and other provisions of this section and section 28-5(b).

(h) Failure to enforce any smoking provision required by this section 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. 579 N.S., § 2(A), (R), 7-18-2018; Ord. No. 589 N.S., 9-2-2020)

Editor's note— 579 N.S., § 2(A), (R), adopted July 18, 2018, repealed the former § 28-8, and enacted a new § 28-8 set out herein. The former § 28-8 pertained to smoking not prohibited; owner option to prohibit and derived from Ord. No. 531 N.S., § 3, 7-20-2011; Ord. No. 571, § 2(L), 5-17-2017.

(a) No person or nonprofit entity shall knowingly permit smoking or the use of tobacco products in an area which is under the legal or de facto control of that person or nonprofit entity and in which smoking or the use of tobacco products is prohibited by law.

(b) No person or nonprofit entity shall knowingly or intentionally permit the presence or placement of ash receptacles, such as, for example, ash trays or ash cans, within an area under the legal or de facto control of that person or nonprofit entity and in which smoking or the use of tobacco products is prohibited by law, including, without limitation, within a reasonable distance as defined in this chapter from any area in which smoking or the use of tobacco products is prohibited. Notwithstanding the foregoing, the presence of ash receptacles in violation of this chapter shall not be a defense to a charge of smoking or the use of tobacco products in violation of any provision of this chapter.

(c) No person shall dispose of used smoking or tobacco product waste within the boundaries of an area in which smoking or tobacco product use is prohibited, including within a reasonable distance as defined in this chapter.

(d) Each instance of smoking or the use of tobacco products in violation of this chapter shall constitute a separate violation. For violations other than for smoking or the use of tobacco products in violation of this chapter, each day of a continuing violation of this chapter shall constitute a separate violation.

(Ord. No. 579 N.S., § 2(A), (S), 7-18-2018; Ord. No. 589 N.S., 9-2-2020)

Editor's note— 579 N.S., § 2(A), (R), adopted July 18, 2018, repealed the former § 28-9, and enacted a new § 28-9 set out herein. The former § 28-9 pertained to duty of person, employer, business or nonprofit entity and derived from Ord. No. 531 N.S., § 3, 7-20-2011.

(a) The person, employer, business or non-profit entity with legal or actual control of a building or area where smoking is prohibited by this chapter shall clearly and conspicuously post "No Smoking" signs at the entrances of every building, as well as in other areas under their control where smoking is prohibited under this chapter. However, where an entire building or premises is non-smoking, only entrances need be signed, provided that they are signed to that effect.

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

(Ord. No. 531 N.S., § 3, 7-20-2011; Ord. No. 571, § 2(M), 5-17-2017; Ord. No. 589 N.S., 9-2-2020; Ord. No. 614 N.S. , § 1(Exh. 1), 11-5-2025)

(a) It shall be unlawful for any person to sell or offer for sale a tobacco product in the Town.

(b) The delivery sale of tobacco products is prohibited in the Town. It will be a violation of this chapter for any retailer or any of the retailer's agents or employees to engage in the delivery sale of tobacco products or to knowingly or recklessly sell or provide tobacco products to any person that intends to engage in the sale of the tobacco product in the Town.

(Ord. No. 614 N.S. , § 1(Exh. 1), 11-5-2025)

Editor's note— Ord. No. 614 N.S. , § 1(Exh. 1), adopted November 5, 2025, repealed the former § 28-11, and enacted a new § 28-11 as set out herein. The former § 28-11 pertained to sale of tobacco products regulated and derived from Ord. No. 531 N.S., § 3, 7-20-2011; Ord. No. 571, § 2(N), 5-17-2017; Ord. No. 579 N.S., § 2(T), (U), 7-18-2018; Ord. No. 589 N.S., 9-2-2020.

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

(b) Each incident of smoking or use of tobacco products or other conduct in violation of this chapter shall be subject to enforcement pursuant to chapter 31 of this Code.

(c) The health department officer shall require, while an establishment is undergoing otherwise mandatory inspections, certification from the owner, manager, operator or other person having control of such establishment that all requirements of this chapter have been complied with.

(d) Violations of this chapter are subject to a civil action brought by the town, punishable by a civil fine not less than two hundred fifty dollars and not exceeding one thousand dollars per violation.

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

(f) Any violation of this chapter is hereby declared to be a nuisance.

(g) In addition to other remedies provided by this chapter, this code, or by other law, any violation of this chapter may be remedied by a civil action brought by the town attorney, including, but not limited to, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.

(h) Any person acting for the interests of itself, its members, or the general public (hereinafter "private enforcer") may bring a civil action in any court of competent jurisdiction, including small claims court, to enforce this chapter against any person who has violated this chapter two or more times. Upon proof of the violations, a court shall grant all appropriate relief, including awarding damages and/or issuing an injunction or a conditional judgment.

(i) Except as otherwise provided, enforcement of this chapter is at the sole discretion of the town. Nothing in this chapter shall create a right of action in any person against the town or its agents to compel public enforcement of this chapter against private parties.

(j) The purposes of this chapter are to restrict and/or prohibit smoking and use of tobacco products for the benefit of the public health, safety and welfare. This chapter establishes no new rights for a person who engages in smoking or the use of tobacco products. Notwithstanding (1) any provision of this chapter or other provisions of this code; (2) any failure by any person to restrict smoking or use of tobacco products under this chapter; or (3) any explicit or implicit provision of this chapter that allows smoking or use of tobacco products in any place; nothing in this chapter shall be interpreted to limit any person's legal rights to seek redress or recovery of damages under other laws as a result of smoking or use of tobacco products, including, for example, rights in nuisance, trespass, property damage, and personal injury or other legal or equitable principles.

(Ord. No. 531 N.S., § 3, 7-20-2011; Ord. No. 579 N.S., § 2(A), (V), 7-18-2018; Ord. No. 589 N.S., 9-2-2020)

(a) It is unlawful for any person or non-profit entity who owns, manages, operates or otherwise controls the use of any premises or areas subject to regulation under sections 28-3, 28-4, 28-5, 28-6, 28-7, 28-8, 28-9, 28-10, 28-11, or 28-14 of this chapter to fail to comply with any of its provisions.

(b) It is unlawful for any person to smoke or use tobacco products in any area where smoking or use of tobacco products is prohibited under provisions of this chapter.

(c) Any person, non-profit entity, business, or owner, manager or operator of any establishment subject to this chapter who violates any provision of this chapter, other than section 28-11, shall be deemed guilty of an infraction and upon conviction shall be subject to payment of a fine not less than two hundred fifty dollars ($250.00) and not exceeding one thousand dollars ($1,000.00) per violation.

(d) Violations of section 28-11 shall be a misdemeanor.

(e) For the purposes of the civil remedies permitted under this chapter and state law, each day on which a tobacco product is offered for sale in violation of this chapter, and each individual tobacco product that is sold, or offered for sale in violation of this chapter, shall constitute a separate violation of this chapter.

(f) Tobacco products offered for sale in violation of this chapter are subject to seizure by the Department and will be forfeited after the retailer or any other owner of the tobacco products seized is given reasonable notice and an opportunity to demonstrate that the tobacco products were not offered for sale in violation of this chapter. The decision by the Department may be appealed pursuant to the procedures set forth in this chapter. Retailers are responsible for the costs associated with proper transportation, storage, and disposal of all forfeited tobacco products in compliance with relevant state and federal laws after all internal appeals have been exhausted and the time in which to seek judicial review pursuant to California Code of Civil Procedure section 1094.6 or other applicable law has expired without the filing of a lawsuit or, if such a suit is filed, after judgment in that suit becomes final.

(Ord. No. 531 N.S., § 3, 7-20-2011; Ord. No. 579 N.S., § 2(A), (W), 7-18-2018; Ord. No. 589 N.S., 9-2-2020; Ord. No. 614 N.S. , § 1(Exh. 1), 11-5-2025)

No person or employer shall discharge, refuse to hire or in any manner retaliate against any employee or applicant for employment because such employee or applicant exercises any right to a smoke-free environment afforded by this chapter.

(Ord. No. 531 N.S., § 3, 7-20-2011; Ord. No. 589 N.S., 9-2-2020)

The town manager or his/her designee will engage in a continuing educational program to explain and clarify the purposes and requirements of this chapter, as well as a guide to owners, operators and managers with compliance. However, lack of such education shall be no defense to a violation of this chapter.

(Ord. No. 531 N.S., § 3, 7-20-2011; Ord. No. 589 N.S., 9-2-2020)

The town manager or his/her designee may annually request other governmental and educational agencies having facilities within the town to establish local operating procedures in cooperation and compliance with this chapter. This includes urging all federal, state, county and school district agencies to update their existing smoking control regulations to be consistent with current health findings regarding environmental tobacco smoke.

(Ord. No. 531 N.S., § 3, 7-20-2011; Ord. No. 589 N.S., 9-2-2020)

It is the intent of the town to supplement applicable state and federal law and not to duplicate or contradict such law, and this chapter shall be construed in a manner consistent with that intention. This chapter shall not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws.

(Ord. No. 531 N.S., § 3, 7-20-2011; Ord. No. 589 N.S., 9-2-2020)