Chapter 7.13 — SMOKING IN PUBLIC AND PLACES OF EMPLOYMENT

The following words and phrases, whenever used in this chapter shall have the meanings defined in this section unless the context clearly requires otherwise:

"Business" means any sole proprietorship, partnership, joint venture, corporation, association, or other entity formed for profit-making purposes.

"Common area" means every area of a multiunit residence that residents of more than one unit of that multiunit residence are entitled to enter or use, including, for example, halls and paths, lobbies and courtyards, elevators and stairs, community rooms and playgrounds, gym facilities and swimming pools, parking garages and parking lots, shared restrooms, shared laundry rooms, shared cooking areas, and shared eating areas.

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

"Employee" means any person who is employed or retained as an independent contractor by any employer or nonprofit entity in consideration for direct or indirect monetary wages or profit, or any person who volunteers his or her services for an employer or nonprofit entity.

"Employer" means any business or nonprofit entity that retains the service of one or more employees.

"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 boundaries of any height whether or not those boundaries include vents or other openings; or

2. Four walls or other vertical boundaries that exceed six feet in height whether or not those boundaries include vents or other openings.

"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 multiunit residence.

"Multiunit residence" means property containing two or more units, except the following specifically excluded types of housing:

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

• A mobilehome park;

• A single-family home; and

4. A single-family home with a detached or attached in-law or second unit when permitted pursuant to California Government Code Sections65852.1, 65852.150, 65852.2 or an ordinance of the City adopted pursuant to those sections.

"New unit" means a unit that is issued a certificate of occupancy and/or final inspection more than one hundred eighty days after December 23, 2010 and also means a unit that is let for residential use for the first time more than one hundred eighty days after December 23, 2010.

"Nonprofit entity" means 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 or purposes of the entity and not to private gain. A government agency is not a nonprofit entity within the meaning of this chapter.

"Person" means any natural person, business, cooperative association, nonprofit entity, personal representative, receiver, trustee, assignee, or any other legal entity including government agencies.

"Place of employment" means any area under the legal or de facto control of an employer that an employee or the general public may have cause to enter in the normal course of the operations, regardless of the hours of operation, and includes a private residence that is licensed as family day care home or that should be licensed as family child care home under California law.

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

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

"Recreational area" means any area that is owned or operated by the City of Union City 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, picnic areas, playgrounds, sports fields, golf courses, walking paths, gardens, hiking trails, bike paths, horseback riding trails, swimming pools, roller- and ice-skating rinks, and skateboard parks.

"Rental complex" means a multiunit residence with two or more units and for which fifty percent or more of units are let by or on behalf of the same landlord.

"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 receive a service, wait to receive a service or to make a transaction, whether or not such service or transaction includes 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, mobile vendor lines or cab stands.

"Smoke" means the gases, particles, or vapors released into the air as a result of combustion, electrical ignition or vaporization, when the apparent or usual purpose of the combustion, electrical ignition or vaporization is human inhalation of the by-products, except when the combusting or vaporizing material contains no tobacco or nicotine and the purpose of inhalation is solely olfactory, such as, for example, smoke from incense. The term "smoke" includes, but is not limited to, tobacco smoke, electronic cigarette vapors, and marijuana smoke.

"Smoking" means engaging in an act that generates smoke, such as for example: possessing a lighted pipe, lighted hookah pipe, an operating electronic cigarette, a lighted cigar, or a lighted cigarette of any kind; or lighting or igniting of a pipe, cigar, hookah pipe, or cigarette of any kind.

"Unenclosed area" means any area that is not an enclosed area.

"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; 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 singlefamily home; and an in-law or second unit.

(Ord. 740-10 § 2, 2010)

• A. Smoking is prohibited in the enclosed areas of the following places within the City of Union City, except places where smoking is already prohibited by State or Federal law, in which case those laws apply:

  1. Places of employment;

  2. Public places; and

  3. Multiunit residence common areas.

• B. Smoking is prohibited in the unenclosed areas of the following places within the City of Union City, except places where smoking is already prohibited by State or Federal law, in which case those laws apply:

  1. Recreational areas, including a parking lot or any other area designated or primarily used for parking vehicles of persons accessing a recreational area, provided that the City Manager or designee may establish a portion of the unenclosed area of the recreational area as the designated smoking area if it meets all of the criteria set forth in subsection C;

  2. Service areas;

  3. Dining areas;

  4. Places of employment;

  5. Public places, when being used for a public event, including a farmers' market, parade, craft fair, festival, or any other event which may be attended by the general public, provided that smoking is permitted on streets and sidewalks being used in a traditional capacity as pedestrian or vehicular thoroughfares, unless otherwise prohibited by this chapter or other law; and

  6. Rental complex common areas, provided that a person with legal control over a multiunit residence common area, such as, for example, a landlord, may establish a portion of the unenclosed area of the rental complex common area as the designated smoking area if the area meets all of the criteria set forth in subsection C.

• C. Where a designated smoking area is allowed pursuant to this section, it must meet all of the following criteria:

  1. The area must be located a reasonable distance from any 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 property. In the case of a nonsmoking area created by agreement or designation, this provision does not apply unless the person designating the smoking area has actual knowledge of, or has been given notice of, the agreement or designation. A designated smoking area may require modification or elimination as laws change, as binding agreements are created, and as nonsmoking areas on neighboring property are established.

2. The area must not include, and must be a reasonable distance from, unenclosed areas primarily used by children and unenclosed areas with improvements that facilitate physical activity including, for example, playgrounds, tennis courts, and swimming pools;

3. The area must be no more than ten percent of the total unenclosed area of the area for which it is designated;

• The area must have a clearly marked perimeter;

• The area must be identified by conspicuous signs;

• The area must be completely within an unenclosed area; and

7. The area must 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.

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

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

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

• E. Nothing in this chapter prohibits any person, landlord, employer, homeowners' association, 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. 740-10 § 2, 2010)

• A. Smoking in all unenclosed areas shall be prohibited within a reasonable distance from any doorway, window, opening, crack, or vent into an enclosed area in which smoking is prohibited, except while actively passing on the way to another destination and provided smoke does not enter any enclosed area in which smoking is prohibited.

• B. Smoking in unenclosed areas shall be prohibited within a reasonable distance from any unenclosed areas in which smoking is prohibited under Section 7.13.020 of this chapter, 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. The prohibitions in subsections A and B shall not apply to unenclosed areas of private residential properties that are not multiunit residences.

• (Ord. 740-10 § 2, 2010)

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

• B. All units of a rental complex that are not new units, including any associated exclusive-use enclosed areas or unenclosed areas, such as, for example, a private balcony, porch, deck, or patio, are hereby designated nonsmoking units as of December 23, 2010.

• C. At least sixty days before June 21, 2011, the landlord of a rental complex shall provide tenants of units that are not new units with the following:

  1. A written notice clearly stating that all units, including the tenant's unit, are designated nonsmoking units and that smoking in a unit will be illegal as of February 23, 2012; and

  2. A copy of this chapter.

• D. Smoking in a new unit, on or after December 23, 2010, is a violation of this chapter.

• E. Smoking in a designated nonsmoking unit which is not a new unit, on or after February 23, 2012, is a violation of this chapter.

• F. Nothing in this chapter prohibits any person, landlord, homeowners' association, or other entity with legal control over a multiunit residence from prohibiting smoking on any part of such property, even if smoking is not otherwise prohibited in that area.

• (Ord. 740-10 § 2, 2010)

• A. Every lease or other rental agreement for the occupancy of a unit in a rental complex, including, for example, new units and existing units, entered into, renewed, or continued month-to-month after December 23, 2010, shall include the provisions set forth in subsection B on the earliest possible date when such an amendment is allowable by law when providing the minimum legal notice.

• B. Every lease or other rental agreement for the occupancy of a unit in a rental complex, including, for example, new units and existing units, entered into, renewed, or continued month-to-month after December 23, 2010, shall be amended to include the following provisions:

  1. A clause providing that as of February 23, 2012, it is a material breach of the agreement to allow or engage in smoking in the unit. Such a clause might state, "It is a material breach of this agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to engage in smoking in the unit as of February 23, 2012."

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

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

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

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

• D. A tenant who breaches a smoking provision of a lease or other rental agreement for the occupancy of a unit in a rental complex, or who knowingly permits any other person subject to the control of the tenant or present by invitation or permission of the tenant, shall be liable for the breach to: (1) the landlord; and (2) any occupant of the rental complex who is exposed to smoke or who suffers damages as a result of the breach.

• E. This chapter shall not create additional liability in a landlord to any person for a tenant's breach of any smoking provision in a lease or other rental agreement for the occupancy of a unit in a rental complex if the landlord has fully complied with this section and Section 7.13.040.

• F. Failure to enforce any smoking provision required by this chapter shall not affect the right to enforce such provision in the future, nor shall a waiver of any breach constitute a waiver of any subsequent breach or a waiver of the provision itself.

• (Ord. 740-10 § 2, 2010)

• A. The provisions of this chapter are restrictive only and establish no new rights for a person who engages in smoking. Notwithstanding: (1) any provision of this chapter or other provisions of this Code; (2) any failure by any person to restrict smoking under this chapter; or (3) any explicit or implicit provision of this Code that allows smoking in any place, nothing in this Code shall be interpreted to limit any person's legal rights under other laws with regard to smoking, including, for example, rights in nuisance, trespass, property damage, and personal injury or other legal or equitable principles.

• B. Notwithstanding any other provision of this chapter, smoking marijuana for medical purposes as permitted by California Health and Safety Code Sections11362.7 et seq., is not prohibited by this chapter.

• C. For all purposes within the jurisdiction of the City of Union City, nonconsensual exposure to smoke occurring on or drifting into residential property is a nuisance, and the uninvited presence of smoke on residential property is a nuisance and a trespass. Any person bringing a civil action to enforce the nuisance provision contained in this section need not prove an injury different in kind or in degree from injury to others to prove a violation of this chapter.

• (Ord. 740-10 § 2, 2010)

• A. No person, landlord, employer, or nonprofit entity shall knowingly permit smoking in an area which is under the legal or de facto control of the person, landlord, employer or nonprofit entity and in which smoking is prohibited by law, unless otherwise required by State or Federal law.

• B. No person, landlord, employer, 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 the person, landlord, employer or nonprofit entity and in which smoking is prohibited by law, including, without limitation, within a reasonable distance required by this chapter from any area in which smoking is prohibited. 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 provision of this chapter.

• C. A person, landlord, employer, or nonprofit entity that has legal or de facto control of an area in which smoking is prohibited by this chapter shall post a clear, conspicuous and unambiguous "No Smoking" or "Smoke free" sign at each point of ingress to the area, and in at least one other conspicuous point within the area. No smoking signs are not required inside or at doorways of designated nonsmoking units. The signs shall have letters of no less than one inch in height and shall include the international "No Smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it). Signs posted on the exterior of buildings to comply with this section shall include the reasonable distance requirement set forth in Section 7.13.030. For purposes of this section, the City Manager or designee shall be responsible for the posting of signs in regulated facilities owned or leased in whole or in part by the City. Notwithstanding this provision, the presence or absence of signs shall not be a defense to a charge of smoking in violation of any other provision of this chapter.

• D. No person, landlord, employer, or nonprofit entity shall intimidate, threaten any reprisal, or effect any reprisal, for the purpose of retaliating against another person who seeks to attain compliance with this chapter. Moreover, no person shall intentionally or recklessly expose another person to smoke in response to that person's effort to achieve compliance with this chapter.

• E. Each instance of smoking in violation of this chapter shall constitute a separate violation. For violations other than for smoking, each day of a continuing violation of this chapter shall constitute a separate violation.

• (Ord. 740-10 § 2, 2010)

• A. Criminal Prosecution. Each incident of smoking in violation of this chapter is an infraction subject to a one hundred dollar fine or otherwise punishable pursuant to Section 1.16.030 of this Code. Other violations of this chapter may, in the discretion of the City Prosecutor, be prosecuted as infractions or misdemeanors when the interests of justice so require. Enforcement of this chapter shall be the responsibility of the Police Chief or designee. In addition, any peace officer or code enforcement official also may enforce this chapter.

• B. Civil Enforcement by the City.

  1. Fines. Violations of this chapter are subject to a civil action brought by the City of Union City, punishable by a civil fine not less than two hundred fifty dollars and not exceeding one thousand dollars per violation.

  2. Injunctions, Nuisance Abatement and Code Enforcement. 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 City Attorney, including, but not limited to, administrative or judicial nuisance abatement proceedings, code enforcement proceedings, and suits for injunctive relief.

• C. Civil Enforcement by Private Citizens. Any person acting for the interests of itself, its members, or the general public may bring a civil action to enjoin a violation of this chapter by a landlord, employer, business, or non-profit entity or to enjoin repeat violations of this chapter by an individual.

• D. General Provisions.

  1. Cumulative Remedies. The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity.

  2. Violations. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter.

  3. Nuisances. Any violation of this chapter is hereby declared to be a nuisance.

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

• (Ord. 740-10 § 2, 2010)

CHAPTER 7.16 PROPERTY MAINTENANCE

Note: Prior ordinance history: Ords. 315-89, 548-99, 618-03, 646-05 and 712-08.