HomeMy WebLinkAboutOrd 42-08 Muni Code Smoking PollutionORDINANCE N0.42-08
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
AN ORDINANCE OF THE CITY OF DUBLIN AMENDING
CHAPTER 5.56 OF THE DUBLIN MUNICIPAL CODE
RELATING TO SMOKING POLLUTION CONTROL
WHEREAS, smoking has been shown to pose health risks to smokers; and
WHEREAS, secondhand smoke and its residual contaminants have been shown to pose health risks to both
smokers and non-smokers; and
WHEREAS, the City Council of the City of Dublin wishes to preserve and improve the health of it
residents by reducing the possibility of exposure to secondhand smoke and its contaminates by providing
housing for non-smokers within the City's apartment rental housing complexes.
NOW, THEREFORE, the City Council of the City of Dublin does hereby ordain as follows:
Section 1. Sections 5.56.020, 5.56.040, and 5.56.050 of the Dublin Municipal Code are amended as
follows and Section 5.56.055 is added to the Dublin Municipal Code:
5.56.020 Findings and Purpose.
A. The City Council finds that:
1. Numerous studies have found that tobacco smoke is a major contributor to indoor air pollution; and
2. Reliable studies have shown that breathing secondhand smoke is a significant health hazard for certain
population groups, including elderly people, individuals with cardiovascular disease, and individuals with
impaired respiratory function, including asthmatics and those with obstructive airway disease; and
3. Health hazards induced by breathing secondhand smoke include lung cancer, respiratory infection,
decreased exercise tolerance, decreased respiratory function, bronchoconstriction, and bronchospasm; and
4. Nonsmokers with allergies, respiratory diseases and those who suffer other ill effects of breathing
secondhand smoke may experience a loss of job productivity or may be forced to take periodic sick leave
because of adverse reactions to same; and
5. Numerous studies have shown that a majority of both non-smokers and smokers desire to have
restrictions on smoking in public places, places of employment, and multi-unit housing; and
6. Smoking is the number one cause of preventable home fire deaths across the nation; and
7. Cigarette butts pose a health threat to young children when ingested, which may result in vomiting,
lethargy, nausea, and gagging; and
8. Cigarette butts are a major and persistent source of litter; and
9. Nearly 87% of Californians do not smoke; and
10. A local ordinance that authorizes residential rental agreements to include a prohibition on smoking of
tobacco products within rental units is not prohibited by state law; and
B. Accordingly, the City Council finds and declares that the purposes of this chapter are:
1. To protect the public health and welfare by prohibiting smoking in public places except in designated
smoking areas, and by regulating smoking in places of employment; and
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2. To strike a reasonable balance between the needs of smokers and the need of non-smokers to breathe
smoke-free air, and to recognize that, where these needs conflict, the need to breathe smoke-free air shall have
priority; and
3. To provide for the public health, safety, and welfare by discouraging the inherently dangerous behavior
of smoking around non-tobacco users; by protecting children from exposure to smoking where they live and
play; and by protecting the public from nonconsensual exposure to secondhand smoke in and around their
homes.
5.56.040 Definitions.
The following words and phrases, whenever used in this chapter, shall be construed as defined in this section:
"Bar" means an area that is devoted to the serving of alcoholic beverages for consumption by guests on the
premises and in which the service of food is incidental to the consumption of beverages and in which persons
younger than twenty-one (21) years of age are at all times excluded.
"Business" means any sole proprietorship, partnership, joint venture, corporation or other business entity
formed for profit-making purposes, including private residences that are licensed to provide child care, adult
care, and other health care related services, 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.
"Dining area" means any area containing a counter or table upon which meals are served or any area
designed, established, or regularly used for consuming meals.
"City sponsored event" means an event which the City of Dublin plans, administers, coordinates, and
finances, and which is held upon property owned by the City of Dublin.
"Community Park" means Dougherty Hills Dog Park, Dublin Heritage Center, Dublin Historic Park, Dublin
Sports Grounds, Dublin Swim Center, Emerald Glen Park, Fallon Sports Park, Shannon Park, and any new .park
constructed after the effective date of this Ordinance that is greater than eight (8) acres in size.
"Employee" means any person who is employed by any employer or hired as an independent contractor 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 or nonprofit entity, including a municipal
corporation, who employs the services of one or more persons.
"Enclosed" means closed in by roof and four walls with appropriate openings for ingress and egress.
"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.
"Multi-Unit Residence" means a Premises that contains sixteen (16) or more Units for rent
"Multi-Unit Residence Common Area" means any outdoor area of a Multi-Unit Residence accessible to and
usable by residents of different Units, including but not limited to play areas, common cooking and eating areas,
swimming pools, common courtyards, paths and walkways, and parking areas.
"Nonprofit entity" means any corporation, unincorporated association or other entity created for charitable,
educational, political, social or other similar purposes, the net proceeds from the operations of which are
committed to the promotion of the objects or purposes of the organization and not to private financial gain. A
public agency is not a nonprofit entity within the meaning of this section.
"Park recreation area" means any and all children's play areas, playgrounds, swimming areas, sports fields,
sports courts, skate parks, and picnic areas.
"Person" means any natural person, partnership, cooperative association, corporation, personal
representative, receiver, trustee, assignee, or any other legal entity.
"Place of employment" means any area under the control of a public or private employer that employees may
have cause to enter during the normal course of employment, including, but not limited to, work areas, vehicles,
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employee lounges and restrooms, conference rooms and classrooms, cafeterias and hallways, except that a
private residence is not a place of employment unless it is used as a child care or a 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, and includes legally separate but contiguous pieces of land that are owned by the same
person or by multiple persons owning and operating the land under common control.
"Public place" means any area in which the public is invited or in which the public is permitted, including,
but not limited to: banks, educational facilities, health facilities, public transportation facilities, reception areas,
restaurants, retail food production and marketing establishments, retail stores, theaters and waiting rooms.
"Reasonable distance" means a distance that ensures that occupants of an area in which smoking is prohibited
are not exposed to secondhand smoke created by smokers outside the area. Except as otherwise provided in this
Chapter, this distance shall be a minimum of twenty (20) feet unless the application of the twenty (20) foot
minimum would place the smoker in a potentially unsafe location, in which case a "reasonable distance" shall
be a location closer than twenty feet which does not place the smoker in a potentially unsafe location.
"Restaurant" means any coffee shop, cafeteria, tavern, sandwich stand, soda fountain, private or public
school cafeteria, and any other eating establishment, organization, club, boardinghouse or guest house, which
gives or offers food for sale to the public, guests, patrons, members or employees.
"Retail tobacco store" means a retail store utilized primarily for the sale of tobacco products and accessories.
"Secondhand smoke" means the tobacco smoke created by burning or carrying any lighted pipe, cigar, or
cigarette of any kind, and the smoke exhaled by an individual who engages in smoking.
"Self-service display" means the 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.
"Smoking" means the consumption of tobacco by inhaling, exhaling, burning or carrying any lighted pipe,
cigar or cigarette of any kind.
"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 or ingestion of tobacco products.
"Tobacco product" means 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.
"Tobacco retailer" means any person who sells, offers for sale, or does or offers to exchange far any form of
consideration tobacco, tobacco products, or tobacco paraphernalia. "Tobacco retailing" -shall mean the doing of
any of these things. This definition is without regard to the quantity of tobacco, tobacco products, or tobacco
paraphernalia sold, offered for sale, exchanged, or offered for exchange.
"Unit" means: (1) a dwelling space consisting of complete independent living facilities for one or more
persons, including, for example, permanent provisions for living and sleeping, and any private outdoor spaces
like balconies and patios; and (2) 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 facilities or private
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).
"Vending machine" means any electronic or mechanical device or appliance the operation of which depends
upon insertion of money, whether in coin or in paper bill, or other thing representative of value, which
dispenses or releases tobacco products and/or tobacco accessories.
5.56.050 Prohibition of smoking in public places and places of employment.
A. Smoking shall be prohibited in any enclosed public place, business, restaurant, or place of employment
within the city of Dublin except in the enclosed places identified in California Labor Code Section 6404.5(d), or
its successor.
B. Smoking shall be prohibited in the following enclosed places:
1. Common areas of multi-unit, multi- residence, or multi-family buildings including, but not limited to,
apartments, condominiums, retirement facilities, and nursing homes; and
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2. Areas that have a common or shared air space with other enclosed areas in which smoking is prohibited
such as, without limitation, air conditioning systems, heating systems, ventilation systems, entries, doorways,
hallways, and stairways.
C. Smoking shall be prohibited in the following unenclosed places:
1. Dining areas that are part of a restaurant, business, nonprofit entity, place of employment, or located in
any public place;
2. Any City park except for a community park;
3. Any park recreation area within community parks;
4. Any place where people are using or waiting for a service, entry, or a transaction whether or not such
service includes the exchange of money including, but not limited to, ATMs, bank teller windows, telephones,
ticket lines, bus stops and cab stands;
5. Any City sponsored event, except in any area designated by the City as a smoking area. City sponsored
events may have one or more designated smoking areas of an appropriate size provided the area is prominently
marked with signs and is located the greatest distance practicable from all areas of high pedestrian traffic, any
parking areas, and any area in which smoking is prohibited. In no case shall a designated smoking area be
placed less than 25 feet from such areas.
6. Smoking is prohibited in all multi-unit residence common areas, except that a landlord may designate a
portion of the outdoor area of premises as a smoking area as provided in subparagraph (a) below.
(a) A designated smoking area:
(i) must be located a reasonable distance from any area where smoking is prohibited; and
(ii) must be no more than twenty-five percent (25%) of the total outdoor area of the premises for
which it is designated; and
(iii) must have a clearly marked perimeter; and
(iv) must be identified by one conspicuous sign at the designated smoking area, and one conspicuous
sign elsewhere on the premises; and
(v) must not overlap with any area in which smoking is otherwise prohibited by this chapter or other
provisions of this Code, state law, or federal law; and
(b) If a suitable area cannot be determined, an exemption from the requirements of this section may be
granted at the discretion of the City Manager, or his or her designee, provided that the smoking area does not
overlap with any area otherwise prohibited by other provisions of this Code, state law, or federal law.
(c) Nothing shall prevent amulti-unit residence from designating all outdoor areas of the premises as
nonsmoking.
D. No person shall provide or place ash receptacles such as, without limitation, ashtrays or ash cans, within
an area in which smoking is prohibited, including, without limitation, inside the perimeter of any reasonable
smoking distance required by this chapter.
E. Notwithstanding the exception in subsection A of this section for enclosed places identified in California
Labor Code Section 6404.5(d) or its successor, "place of employment" shall include retail or wholesale tobacco
shops and private smokers' lounges, as such terms are defined in California Labor Code Section 6404.5(d)(4),
as well as private residences licensed as family day care homes regardless of their hours of operation.
5.56.055 Prohibition of smoking in multi-unit residences
A. Multi-unit residences:
1. In every Multi-Unit Residence, at least fifty percent (50%) of the units (including private outdoor spaces
associated with such units, such as balconies, patios, and decks), must be designated as non-smoking units by
January 1, 2011;
2. Non-smoking units must be contiguously grouped together both horizontally and vertically and physically
separated from smoking units to the maximum extent practicable;
3. Landlords shall, within ninety (90) days of the effective date of the ordinance which adopted this section,
notify each unit of its implementation schedule and plan for complying with this section;
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4. Smoking is prohibited in non-smoking units in multi-unit residences;
5. Landlords may designate a higher percentage ofnon-smoking units or do so within an earlier timeframe
than required under subsection (A)(1).
B. Required lease terms:
1. Every lease or other agreement for the occupancy of a unit in a multi-unit residence shall, by January 1,
2011, include:
a. A clause stating that smoking is prohibited in the unit if the unit has been designated as a non-
smoking unit;
b. A clause stating that it is a material breach of the lease or agreement to (i) violate any law
regulating smoking while on the premises; (ii) smoke in anon-smoking unit; or (iii) smoke in any multi-unit
residence common area in which smoking is prohibited by the landlord;
c. A clause stating that all lawful occupants of the multi-unit residence are express third-party
beneficiaries of the above required clauses;
2. The California Apartment Association's form 34.0, revised 1/07, meets the requirements for lease terms
as outlined and is an option for use to comply with this section;
3. The lease or agreement terms required by Section B(1) are hereby incorporated by force of law into any
lease or other agreement for the occupancy of a unit in a multi-unit residence made on or after January 1, 2011
and which does not fully comply with Section B(1);
4. A tenant who breaches the smoking regulations of a lease or knowingly allows another person to do so
shall be liable to: (i) the landlord; and (ii) 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 regulations if the landlord has fully complied with Section B(1);
5. Failure to enforce any smoking regulation of a lease or agreement on one or more occasions shall not
constitute a waiver of the lease or agreement provisions required by this ordinance. and shall not prevent future
enforcement of any such smoking regulation on another occasion.
C. Disclosure by landlords of multi-unit residences:
1. Every landlord shall maintain a list of designated smoking and non-smoking units and a floor plan
identifying the relative position of smoking and non-smoking units. The floor plan also shall identify the
location of any designated smoking areas. A copy of this list, floor plan, and a copy of any procedures for
addressing smoking related complaints shall accompany every new lease or other agreement for the occupancy
of a unit in a multi-unit residence. If a copy of the list and floor plan is not so supplied, the unit subject to the
lease shall be anon-smoking unit.
D. Prohibitions and duties generally:
1. No Person shall smoke or knowingly permit smoking in an area of the premises under his or her legal or
de facto control in which smoking is prohibited by a lease or agreement term, by this chapter, this Code, or any
other state or federal law provided, however, that this prohibition does not apply to a person who is already
compelled to act under state or federal law.
Section 2. Within twelve (12) months of the effective date of this ordinance, and annually thereafter,
reports from affected landlords covering compliance, feasibility, and the effects of the transition as outlined in
this section shall be submitted to the City. The City Council will review the necessity of continuing the
requirement to submit annual reports at twenty-four (24) and at forty-eight (48) months from the effective date
of the ordinance which adopted this section of the Municipal Code.
Section 3. Twenty-four (24) months from the effective date of this ordinance, the City Council shall
determine whether to increase the percentage ofnon-smoking units from at least fifty percent (50%) to at least
seventy percent (70%) of the units (including private outdoor spaces associated with such units, such as
balconies, patios, and decks) with the increased percentage ofnon-smoking units to be achieved within by forty-
eight (48) months of the effective date of this ordinance.
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Section 4. Severability. The provisions of this Ordinance are severable and if any provision, clause,
sentence, word or part thereof is held illegal, invalid, unconstitutional, or inapplicable to any person or
circumstances, such illegality, invalidity, unconstitutionality, or inapplicability shall not affect or impair any of
the remaining provisions, clauses, sentences, sections, words or parts thereof of the ordinance or their
applicability to other persons or circumstances.
Section 5. Effective Date. This Ordinance shall take effect and be enforced thirty (30) days
following its adoption.
Section 6. Posting. The City Clerk of the City of Dublin shall cause this Ordinance to be posted in
at least three (3) public places in the City of Dublin in accordance with Section 36933 of the Government Code
of the State of California.
PASSED, APPROVED AND ADOPTED this 2°a day of December, 2008, by the following vote:
AYES: Councilmembers. Hart, Hildenbrand, Scholz, and Mayor Sbranti
NOES: None
ABSENT: None
ABSTAIN: None
~! Pmt
Mayor
ATTEST:
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~I (J City Clerk
Ord No. 42-08, Adopted 12-2-08, Item 4.2
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