HomeMy WebLinkAboutItem 8.1 SmokingPollutionControlOrd
C~TV CLERK
F~le # D0~[Q]{2l0
AGIE~DA STATEME~T
C~TY COUNC~l MEIET~~G DATlE December 18, 2007
SUBJECr
ConSideratIOn of Amendments to the CIty of Dublm Smokmg
PollutIOn Control Ordmance
Report Prepared by Roger Bradley Admmlstratlve Analyst
A'fT ACHMENl'S
1
DublIn MUnICIpal Code Chapter 5 56 - Smokmg PollutIon
Control
Tobacco Control Ordmances Passcd by Alameda County
J un sdl ctI ons
State of Cahfonna Smokmg Laws
City of Dub 1m Tobacco Retailer License Program OvervIew
Smoke Free Housmg Pohcy Table Pohcy and Enforccment
OptIOns for MultI-Unit Housmg
2
3
4
5
RECOMMENJI)AlfIO~
Staft recommends that the City Council consIder VIce Mayor
HIldenbrand's request to evaluate the need to amend sectIons of the
City's Smokmg PollutIon Control Ordmance and provide Staff wIth
duectIon as to which changes, If any, should be pursued
:!FINANCIAL ST ATEMENl' DIrectIon to research and prepare an Ordmance With all the below
changes would reqUIre approximately 30 hours from the City Attorney's Office at a cost of$6,000 and
approxImately 60 hours from the City Manager's Office to prepare and research the amendments
DlESCRllPTION At the City CounCIl Meetmg on September 18,2007, VIce Mayor
Hildenbrand requested that Staff prepare a report for CIty CouncIl's conSIderatIOn outlmmg proposed
amendments to the City's current Smokmg PollutIon Control chapter of the Dublm MUnICIpal Code-
Attachment 1 Vice Mayor HIldenbrand mdIcated that there arc seven areas ofmterest that she would lIke
conSIdered as part ofthese amendments, whIch are listed below For companson purposes, a IIstmg of
vanous smokmg related poliCIes adopted by Alameda County JunsdIctIons can be found m Attachment 2
COpy 1'0 Janice lLmne, Tobacco Condron Program, Anameda County
Page 1 of5
liTEM NO
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Reasonable Distance Increase
Current Law
o Smokmg IS prohIbIted wIthm a reasonable distance, defined as 15 feet, from any mam entrance
mto an enclosed area and from any unenclosed area m which smokmg IS prohibited except while
actively passmg on the way to another destmatlon and wIthout entenng or crossmg any area m
which smokmg IS prohIbited
o Reasonable distance means a dlstdnce that ensures that occupants of an area In which smokmg IS
prohibited are not exposed to secondhand smoke created by smokers outsIde the area
o A reasonable dIstance IS set at 25 feet for playgrounds and tot lot sandbox areas
State Law
o Smokmg IS prohIbited m an outdoor area wIthm 20 feet of a mam eXIt, entrance, or operable
wmdow of a CIty, county, or State owned or leased bUlldmg
o Pnvate bUlldmgs are not addressed by State law
o In addItIon, a recent State law prohIbIts smokmg wIthm covered parkmg structures Covered
parkmg lots are defined as areas that are deSIgnated for the parkmg of vehIcles and are enclosed or
contam a roof or celhng
Vice Mayor's Proposal
o An mcrease III the City's reasonable distance footage to meet the State's publIc bUlldmg standard
of20 feet, but thiS standard would be applied to all bUlldmgs CitYWide and where appropnate
Tobacco Retailer LlcenslDJ!
Current Law
o There IS currently no local Tobacco Retailer Llcensmg Ordmance m place
o The City currently receives grant fundmg through the Shemffs Office to perform two complIance
checks each year at Dubhn's tobacco retailers, ensunng that they are not sellmg tobacco products
to mIllors ThiS fund1l1g IS scheduled to cont1l1ue through 2009
State Law
o Tobacco retmlers must be IIccnsed by the State Board of Equalization (BOE) for each tobacco
retmllocahon
o Each retmler must pay a onetIme lIcense fee of $100 for each retmIlocatlOn The lIcense must be
renewed annually at no cost to the retmler
o The current license program assesses penalties and fines for busmesses that sale tobacco products
to m1l10rs Fourth to seventh conVictIons m a 12-month penod each result m a 90 day suspensIOn
of the license An eIghth convictIon m a 24-month penod results III the revocatIOn of the retail
license
o IndiVidual penalties mdY be dssessed upon convlctJon for tobacco sales to mmors VIOlators are
subject to eIther a cnmInal actIon for misdemeanor or a CIVil actIOn pumshable by a fine of $200
for the first offense, $500 for a second offense, and $1,000 for a thIrd Both the busmess and the
employee may be prosecuted under State law
o The State IS only able to take actIon on lIcense related penaltIes If 13% or more of youths were
able to purchase cigarettes dunng each year's StatewIde survey
o State law states that nothmg preempts or supersedes any local tobacco control law other than those
related to the collectIon of state taxes, and that local lIcensmg laws may proVIde for the suspensIOn
Page 2 of5
or revocation of a local license for any vIolatIOn of a state tobacco control law (California Busmess
and ProfessIOns Code sectlon 22971 3)
VIce Mayor's Proposal
o Present this as an mformatlonal Item to Council so that Council may consIder such an Ordinance at
a future tIme and date should the current compliance-check fundmg though the Shemffs Office
expIre ThiS Item would reqmrc tobacco retailers wLthm the CIty to obtam a local license 111
addltlOn to the State's Under such an Ordmance, sellIng tobacco WIthout a license would be a
cnme, and the lIcense can be suspended or revoked for vIOlatIons of tobacco control laws
o Enforcement would Include at least two random complIance checks each year
o Also, the Item would seek to create a broad defimtlOn of tobacco product sales, whIch would
1l1clude the selling of fad tobacco products (candy cigarettes, mcotme water, etc) ThiS would
allow the City to regulate and/or outnght prohibit the sale of such products
Smoke Free Multl-famllv lImts
Current Law
o Council has passed a Secondhand Smoke Ordmance, which allows a pnvate CitIzen to purse legal
remedies to abate secondhand smoke as a nUIsance
o In additIon, smokmg IS prohIbIted wIth1l1 the follow.lpg enclosed places common areas of multI-
umt, multI-resIdence, or multI-fanl1ly bUIldmgs mcludmg, but not lImited to, apartments,
condomInIUms, retIrement faCIlitIes, and nursmg homes
o Smokmg IS also prohlblted m areas that have a common or shared air space WIth other enclosed
areas III which smokmg IS prohibIted such as aIr condltIOmng systems, heatmg systems, ventIlatIOn
systems, entnes, doorways, hallways, and stamvays
State Law
o In apartment and condomInmm complexes, the mdoor common areas (mcludmg hallways,
staIrwells, laundry rooms, and recreatIon rooms) are subject to workplace smokmg prohIbitIOns
contamed m the California Labor Code, If these areas are places of employment
V,ce Mayor'~ Proposal
o ReqUIre that 50% percentage ofumts m new and eXIstmg multI-famIly rental rcsIdences be
deSignated as smoke-free
o MultI-famIly rental reSIdences are defined as premIses that contaIn a number as low as two umts,
whIch dre not occupIed by d ldIldlord (A reSIdence that IS occupIed by the landlord or owner IS
conSidered d pnvdte reSidence and IS exempt)
o Umts that are already extant wIll be phased m as smoke-free over a fourteen month penod, or untll
the legal occupant vacates the Unit, whichever IS first
o ReqUire that apartment complexes dIsclose to prospective tenants the number and location of any
smoke-free umts wlthm a complex, location of any smokmg areas, and any procedures for
addressmg smokmg-related complamts
Page 3 of 5
Smoke Free Cltv Sponsored lEvents
Current Law
o None, although the CIty has never had a tobacco company sponsor a City event
Federal Law
o As a result of certam lawsUit settlement agreements, each settlmg tobacco company may engage m
only one brand name sponsorshIp many 12-month penod A natIOnal or multI-state senes or tour
Will count as one brand name sponsorship
o The settlement agreements prohibIt brand name sponsorship of events m whIch the mtended
audience IS compnsed of a slgmficant percentage of youth (slgmficant IS not defined), events m
whIch partiCipants or contestants are under the age of 18, concerts, and football, basketball,
baseball, soccer, or hockey leagues
V,ce Mayor's Proposal
o ProhIbIt any CIty events from havIng a sponsor that IS affiliated wIth tobacco companies and
tobacco related entItIes
o ProhIbit smokmg at CIty event locations wIth desIgnated areas for smokers
Common Outdoor Areas
Current Law
o Smokmg IS prohibIted m chIldren's play areas and IS prohIbited wIthm a mmlmum of 25 feet [rom
a playground or a tot lot sandbox area
State Law
o Current law prohIbits smokmg m chIldren's play areas and withIn 25 feet of a playground or a tot
lot sandbox area
Vice Mayor's Proposal
o Expand the preclusIOn of smokmg to common outdoor areas or outdoor areas used by all tenants of
multl-fanuly dwellings
o Common outdoor areas mclude recreatIon facilities (e g , basketball courts and sWlmmmg
pools), common outdoor space (e g , courtyards and paths), and parkIng areas
Licensed Care Centers
Current Law
o Smokmg IS prohIbited wIthm homes that are lIcensed as daycare centers durmg their hours of
operatIOn
State Law
o Current State law prohibits smokIng WIthIn homes that are licensed as daycare umts dunng the
hours of operatIOn, and It allows for CItIes to adopt Ordmances that are more stnngent
Vlce Mayor's Proposal
o ProhIbitIOn of smokmg 24 hours a day and 7 days a week wIthm busmesses that prOVide care
services such as chlldcare, adult-care, and healthcare actIvItIes
Page 4 of5
Smoke :!Free Parks
Current Law
o Smokmg IS prohibited m chIldren's play areas and smokmg IS prohibIted wlthm a mmlmum of25
feet from a playground or a tot lot sandbox area
State Law
o Current law prohibits smokmg m chIldren's play areas and wlthm 25 feet ofa playground or a tot
lot sandbox area
VIce Mayor's Proposal
o ProhibIt smokmg withIn the City's parks as has been done m EmeryvIl1e Livermore has a 100 foot
prohlbltJon of smokmg from bmldmgs, tnals, and recredtJon areas
RJECOMMENDAl'ION Staff recommends that the City CouncIl consIder Vice Mayor
Hlldcnbrand's request to evaluate the need to amend sectIOns ofthc City's Smokmg PollutIOn Control
OrdInance and provide Staff With directIOn as to winch changes, If any, should be pursued
Page 5 of 5
Chapter 5 56 SMOKING POLLUTION CONTROL
1 ~ 3).
Chapter 5 56
SMOKING POLLUTION CONTROL
Sections
5 56 010 Title
556020 Findings and purpose
556030 Applicability
556040 Definitions
556050 Prohibition of smoking In public places and places of employment
556060 Duty of employer, business, or nonprofit entity
556070 Reasonable smokmg distance reqUlred-15 feet
5 56 080 Posting of Signs
556090 Retaliation prohibited
5 56 100 PublIC education by city
5 56 110 Public education-CooperatIOn With other agenCies
556115 Tobacco self.servlce displays and tobacco samples prohibited
5 56 120 InterpretatIOn
5 56 130 Enforcement-Administrative officer deSignated
556140 Violation-Penalty
5 56 150 Appeal process
5 56 160 Secondhand smoke-Declaration of nUisance
5 56 010 Title
ThiS Chapter shall be known as 'the smoking pollution control ordinance (Ord
2-94 ~ 1 (part) Ord 13-86 ~ 1000)
556020 Findings and purpose
A The City Council fmds 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,
bronchoconstnctlon and bronchospasm, and
4 Nonsmokers With allergIes, respiratory diseases and those who suffer other III
effects of breathmg secondhand smoke may experience a loss of Job productiVity or
may be forced to take pen odIC Sick leave because of adverse reactions to same,
and
5 Numerous studies have shown that a majority of both nonsmokers and
smokers deSire to have restrictions on smokmg In publiC places and places of
employment, and
6 Smoking IS a documented cause of fires, and cigarette and cigar burns and
ash stams on merchandIse and fixtures cause economiC losses to busmesses
1:1~~ ~'I Ivfl~07
10\ Iili ACC~M rENT :n.
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Chapter 5 56 SMOKING POLLUTION CONTROL
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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 smokmg areas, and by regulating smokmg In places of
employment, and
2 To stnke a reasonable balance between the needs of smokers and the need
of nonsmokers to breathe smoke-free air, and to recognize that, where these needs
conflict, the need to breathe smoke-free air shall have pnonty (Ord 2-94 S 1 (part)
Ord 13-86 S 1001)
556030 Applicability
All areas and facilities owned by the city shall be subject to the provIsions of this
chapter (Ord 18-02 S 2 (part) Ord 2-94 S 1 (part) Ord 13-86 S 1003)
556040 Definitions
The follOWing words and phrases, whenever used In this chapter, shall be
construed as dehned In this section
Bar' means an area that IS devoted to the serving of alcoholic beverages for
consumptron 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 propnetorshlp, partnership, JOint venture, corporation
or other bUSiness entity formed for profit-making purposes, including retail
estabftshments where goods or services are sold as well as profeSSional
corporations and other entities where legal, medical, dental, englneenng,
archrtectural 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
Employee" means any person who IS employed by any employer or hired as an
mdependent 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
"Nonprofit entity means any corporation, unincorporated association or other
entIty created for chantable 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
"Place of employment" means any area under the control of a pubhc or pnvate
employer that employees may have cause to enter dunng the normal course of
employment, Including, but not limited to, work areas, vehicles, employee lounges
and restrooms, conference rooms and classrooms, cafeterias and hallways, except
that a pnvate residence IS not a place of employment unless It IS used as a child
care or a health care facIlity
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
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Chapter 5 S6 SMOKING POLLUTION CONTROL
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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 provided below, this distance shall be a
minimum of fifteen (15) feet unless the application of the fifteen (15) foot minimum
would place the smoker In a potentially unsafe location, In which case a
reasonable distance" shall be a location closer than fifteen feet which does not
place the smoker In a potentially unsafe location A "reasonable distance shall be a
minimum of twenty-five (25) feet from a playground or a tot lot sandbox area
"Restaurant" means any coffee shop, cafeteria, tavern, sandwich stand, soda
fountain, pnvate or public school cafetena, and any other eating establishment,
organrzatlon, 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 prlmanly for the sale of
tobacco products and accessones
"Secondhand smoke means the tobacco smoke created by burning or carrying
any hghted 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
'Sports arena means sports paVilions, gymnasiums, health spas, bOXing arenas,
sWimming pools, roller and Ice nnks, bowling alleys and other Similar places where
members of the publiC assemble to engage In phYSical exerCise, participate In
athletiC competition, or witness sports events
'Tobacco paraphernalia" means cigarette papers or wrappers, pipes, holders of
smoking matenals of all types, cigarette roiling machines, and any other Item
deSigned for the smoking or mgestlon 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, bldlS, or any other preparation of tobacco
Tobacco retailer" means any person who sells, offers for sale, or does or offers
to exchange for any form of consideration, tobacco, tobacco products, or tobacco
paraphernalia "Tobacco retailing' shall mean the dOing of any of these thmgs ThiS
definition IS Without regard to the quantity of tobacco, tobacco products, or tobacco
paraphernalia sold, offered for sale, exchanged, or offered for exchange
Vending machine means any electromc or mechanical deVice or appirance, the
operation of which depends upon insertion of money, whether In COin or In paper
bill, or other thmg representative of value, which dispenses or releases tobacco
products and/or tobacco accessorres (Ord 15-06 991, 2, Ord 18-02 92 (part)
Ord 2-94 9 1 (part) Ord 13-86 9 1002)
5 56 050 Prohibition of smokmg m public places and places of employment
A Smokmg shall be prohibited In any enclosed publiC place, bUSiness,
restaurant, or place of employment wlthm 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
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Chapter 5 56 SMOKING POLLUTION CONTROL
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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
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 Children's play areas,
3 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
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 Identlfted 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
64045(d)(4) (Ord 29-05 ~ 1, Ord 23-05 ~ 1, Ord 18-02 ~ 2 (part) Ord 2-94 ~ 1
(part) Ord 13-86 ~ 1004)
556060 Duty of employer, business, or nonprofit entity
A No employer, busmess, or nonprofit entity shall knowingly or Intentionally
permit the smoking of tobacco products In an area which IS under the employer's,
business, or nonprofit entity's control and In which smoking IS prohibited
B No employer, business, or nonprofit entity shall knowingly or intentionally
permit the presence or placement of ash receptacles, such as, Without limitation,
ash trays or ash cans, Within an area which IS under the employer's, business', or
nonprofit entity's control and In which smoking IS prohibited, Including, Without
limitation, inSide the perimeter of any reasonable smokmg distance required by this
chapter
C Notwlthstandmg any other provIsion of this chapter, any employer, business,
nonprofit entity, or other person who controls any area may declare that any part of
such area In which smoking would otherwise be permitted IS a nonsmoking area
(Ord 18-02 ~ 2 (part) Ord 2-94 ~ 1 (part) Ord 13-86 ~ 1005)
5 56 070 Reasonable smokmg distance reqUIred-iS feet
A Smoking shall be prohibited Within a reasonable distance, as defined In this
chapter, from any main entrance Into an enclosed area In which smoking IS
prohibIted except while actively passing on the way to another destination and
Without entering or crossing any area In which smoking IS prohibited
B Smoking shall be prohibited Within a reasonable dIstance, as defined In thIs
chapter, from any unenclosed area In which smoking IS prohibited except while
actively passing on the way to another destination and Without entering or crossing
any area In which smoking IS prohibited (Ord 18-02 ~ 2 (part) Ord 2-94 ~ 1 (part)
Ord 13-86 ~ 1 006)
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Chapter 5 56 SMOKING POLLUTION CONTROL
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556080 Postmg of Signs
A 'Smoking or No Smoking signs, whichever are appropriate, with letters of
not less than one-Inch (1 n) 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) shall be clearly, suffiCiently and conspicuously posted
In or outside of every bUilding or other place where smoking IS controlled by this
chapter, by the owner, operator, manager or other person having control of such
bUIlding or other place When a Sign IS posted on the exterior of a bUilding to
Indicate no smoking, It shall Include the distance limitations contained In this
chapter
B Every theater owner, manager or operator shall conspicuously post signs In
the lobby stating that smoking IS prohibited within the theater or auditOrium, and In
the case of motion picture theaters, such Information shall be shown upon the
screen for at least five (5) seconds prior to the showing of each feature motion
picture (Ord 18-02 ~ 2 (part) Ord 2-94 S 1 (part) Ord 13-86 ~ 1007)
556090 RetaliatIOn prohibited
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 rights afforded by this chapter (Ord 2-94 ~ 1 (part) Ord
13-86 ~ 1010)
5 56 100 PubliC education by city
A The City Manager shall engage In a continuing program to explain and clarify
the purposes of this chapter to citizens affected by It, and to gUide owners,
operators and managers In their compliance With It
B The City Manager shall leave the responsibility of conducting a public
education campaign regarding the health consequences of smoking to other
governmental and health agenCies equipped With the needed expertise to conduct
such campaigns (Ord 2-94 ~ 1 (part) Ord 13-86 ~ 1011)
556110 PubliC education-Cooperation With other agencies
The City Manager shall annually request other governmental and educational
agencies having faCIlities wlthrn the city to establish local operating procedures In
cooperation and compliance With this chapter The City Manager shall urge federal,
state, county and special school dlstrrct agenCies to enforce their eXisting smokrng
control regulations and to comply voluntarily With this chapter (Ord 2-94 ~ 1 (part)
Ord 1 3-86 ~ 1 01 2)
556115 Tobacco self-serVice displays and tobacco samples prohibited
A It IS unlawful for any person to display tobacco products or tobacco
paraphernalia by means of a self-service display or to engage In tobacco retailing
by means of a self-service display Tobacco retailing by means of a vending
machine IS prohibited by this section
B No person shall knowingly distribute or furnish WIthout charge, or cause to be
furmshed Without charge to the general public, cigarettes or other tobacco products,
at any event open to the public, or In any public place Including but not limited to,
any rrght-of-way, mall or shopprng center, park, playground and any other dlstrrct,
or any park dlstrrct, except In retail tobacco stores (Ord 18-02 ~ 2 (part) Ord 2-94
~ 1 (part))
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Chapter 5 56 SMOKING POLLUTION CONTROL
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5 56 120 Interpretation
This chapter shall not be Interpreted or construed to permit smoking where It IS
otherwise restricted by other applicable laws (Ord 2-94 ~ 1 (part) Ord 13-86
~ 1013)
, 556130 /Enforcement-Administrative officer designated
A Enforcement shall be Implemented by the City Manager
B Any citizen who desires to regIster a complaint hereunder may InitIate
enforcement With the City Manager, or his designees
C Any owner, manager, operator or employer of any establishment controlled
by this chapter shall have the right to Inform persons Violating this chapter of the
appropriate provIsions thereof
o Notwithstanding any other provISions of this chapter, a private citizen may
bring legal action to enforce this chapter (Ord 2-94 ~ 1 (part) Ord 13-86 ~ 1008)
556140 VIolatIOn-Penalty
A It IS unlawful for any person who owns, manages, operates or otherwise
controls the use of any premises subject to the regulation under this chapter to fall
to comply WIth ItS provIsions
B It IS unlawful for any person to smoke In any area restTlcted by the provIsions
of thiS chapter
C Any person who Violates any provIsion of thiS chapter shall be gUilty of an
infraction, punishable by
1 A fine not exceeding one hundred dollars ($100), for first Violation,
2 A fine not exceeding two hundred dollars ($200), for a second Violation of thiS
chapter Within one (i) year,
3 A fine not exceeding five hundred dollars ($500), for each addltlonal Violation
of thiS chapter Within one (1) year (Ord 2-94 ~ 1 (part) Ord 13-86 ~ 1009)
5 56 150 Appeal process
Administrative deCISions made by the City Manager relating to thiS chapter may
be appealed to the City CounCil In accordance With Section 1 04050 of the Dublin
Municipal Code (Ord 2-94 ~ 1 (part))
5 56 160 Secondhand smoke-Declaration of nUisance
Secondhand smoke constitutes a nUisance NotwIthstanding any other proVISIons
of thiS chapter, a private citizen may bTlng a legal action to abate secondhand
smoke as a nUisance (Ord 15 06 ~ 3)
"EE]
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'1~
Locall'olbacco Control Orcllmances 1111 Alameda CODJInty, August 2007
COUNTY/CITY Ala County Alameda CIty Albany Be rkel &y Dublin Emaryvlll& Fremonl
UnlnCOrD
BUSinesses with
fewe rtha n 6 Sm oke free State law (1) Smok e free Smoke free Smoke free Smoke free Smoke-lree
em p I oyees
Company vehicles S tate taw (2) Stale law (2) Smoke free Smoke free St~!e I~w (2) Smoke free Smoke-free
Hotel Lobby Smoke free Stale law 131 Smoke lree Smoke lree Smoke free Smoke free Sm oke free
H olel Rooms 75% &-free 35% S lree 35% S frea 15% S lrea 35% S free {IIB13) 60% smoke lree 60% S lree
(AB131 (AB13) mmlmUm
Meellng and Stale law (4) State law (4) State law 141 Smoke free Smoke free Smoke free Slale law (41
Ba nq uel Room s
Bans smokmg In Bans smokmg In
Ul wholesale & retail
C Tobacco Shops No proVisIOn No proVISion No provIsIOn No provISion wholesale & retail tobacco .hops and on No proVISion
0 tobeceo shoP'> and on
;:; pnvate smokers
0 pnvale smo~ers lounges Iou nges
Gl
....
2 M U III family Smoke free Smoke free Smoke-free
~ endosed No proVOSIO n No provISIOn enelos ed Smoke free ene lased enclosed an d Smoke fre e en closed
common areas
Gl un enelos ed
J!:
0 County facilities
C Enlryw ays
U) Reasonable 20 ft Other No pro'llSlon Yes No deflIled Ye:; MInimum of Yes Minimum of 15 ft Yes 25 feet Yes No defined
"a Distance "",rkplaces footage 20 ft footage
C Mmlmumof 15 ft
la
.c
"i:l
C Outdoor areas
0 SeNlce Lines No provIsIOn No provISion No provIsion No proVISion Smo~e lree Smoke free Smoke free
0
Gl
U)
Outdoor areas Sm oke-free No provISion No provIsion Smoke free Smoke free Smoke free 50% Dining
Dining
Ouldoor areas No provISIOn No proVlSJon No provISion Smoke free Smoke free Smoke free No proVISion
Bu s Stops
Outdoor areas No proVISIOn No proVlSlOn No provision No pro\flslon No proVISion Smoke-free path No proVIsion
Parils playgrounds greenways
Outdoor areas Outdoor PubliC places
Other "",rkplaces workplaces stadiUms
stadiums garages
Hookah Bars Not pe rmlled In City
Resld enlla I 2411," family
Smokln 9 Ba n childcare family care
health care In homes
NUJsance YES YES
.c Vending Mach Banned Over 21 bars Over 21 bars Banned Banned Over 21 Over 21 bars
....
::l T ob Relllller
0 No provISion No provISIOn No pro\flSlon Pa ssed No pro'llSlon No pm'llSlon No provISion
):- Lie ens 109
l:n
C Bans smoke
U Locallonl ZOning Reslrlcled 14DO It Restncted 1000 feet
::l of Smoke Shops No provIsion shops on Websler No pro'llSlon parks/schools No provISIOn from schoots/perks No pro\flslon
'iJ and Pam streets
(II
0::
En fore emeni 208 5916 331 8340 525-7300 981 5330 925-833 6610 59&-3700 790 6800
Inclu des all County operated faclllbes In tIl e County
I I
AS 131 Labor code 3404 5 Cal~omla Smoke-Free WorJ(place Act bans smoking In all Indoor WOrkplaces With some limIted exceJluons
- (1) Allows smoking on~ under some very reslrlcWe condluons Employees can be FT or PT mmors are not allowed no employee req to wor'r<. In tile area
air IS exhausled directly outside and employer complies With state and federal venblabon standards
(2) SmokIng prohIbited except In lruck cabs when no non smoking employees are present
(3) UP to 25 percent or 50 percent (d ependlng on sq footage) may be d eSlg nated smokmg by manag ement
(4) Smoking not allowed dunng foodlbeverage selVlce set UP and clean UP
I I I I I
-
AtrtrA<C[l=IJ[M]~[j\I]'i :2
To reporl complain!; conlaCl Alameda Counly Tobacco Control Program (510) 208 5920 or conlaCllhe CIty d.recUy For questions On PoliCY ISSues call Amencan Lung Assoclatoon of
Cahfornla ~510) 893 5474
8O;f2Jd
Il.ocal Tobacco COI'll1l:ll'oH On:llmall'llces 1111I Alameclla COlllll1lty, AllIglllS1l: 2007
COUNTYI CITY Hayward lIvermo ra Nawark Oakland PIedmont Pleasanton San Leandro Umon CIty
BusInesses WIth
fewer than 6 Sm oke free Smoke free Smoke free Smoke iTee Slate law 11 I Sm oke Ire e Stale law (1 ) Smoke free
employees
Compo ny ve h I <;1 es Slale law (21 Smoke free Slale law 12) State law (2) State law (2) Sm oke lree Slate law (2) State law (2)
Hotel Lobby Smoke free Smoke free Smoke free Sm oke free Stote low (3) Sm oke iTee Slale law (3) Smoke free
Hotel Rooms 35% S lree 75% S Free 76% S fme 350/ S fme 35% S Ime 751. S tme 35% S free 60% S lree
{I\B13) (AB131 (AB13)
Meeting an d Stale law (4) Smoke free Smoke free Slate law (4) Slate law (4) Smoke-free Stale law (4) Stale law (41
Banquet Room S
Ul Ba ns smoking In
C T ob.<;<;o Sh op. No plUvI510n No plUvlslOn wh.1e & re 1,1I110 b No provIsion No provIsion No provIsion No provISIOn No provIsion
0 shops & In pnva Ie
.;;
U 5mokers lounges
CIl
<>'
0 M u It lamlly Sm oke Ire e Sm oke free Sm oke fre a Smoke-frea Smoke free Smoke-Ire.
"- No proVISIO n No proVISK,"
I'!. common ara.s en closed en closed en closed enclos ed enclo. ed enclosed
CIl
~
0
E Entryw .ys Yes No defined Ves Mln of 20 Yes MIn 0125 Ves No defined Yes No defined
II) Reas on able No provIsIOn No proVISion No proVISIOn
"g Distance footage leet feel footage footage
C
I'll
.c
"a
C Outdoor area s
0 Servl ce LIn es Smoke Free Smoke Free Smoke Free No proVlSI"n No proVlSIO n Smoke-Free No proVISion Sm oke-free
U
CIl
II)
Ould oor areas 50% 01 n Ing No provISion Smoke Free No proVlSI"n No proVlslOn Smoke-F rea No proVISion 50% Dlnln9
Olnlng
Outdoor areas Bus No provIsion Unclear Smoke free No proVlSI"n No proVlSlOn lIncle.r No provIsion No proVlSlOn
Stops pravls Ion. (5) prov I sl on s (5)
Outdoor areas Under 100 ft from bldgs
Pari<s conSideration for trails me amas No proVISIOn No proVlslon No proVl$lon No proVlSIOn No proVISiOn No provISIOn
2007
Outdoor areas Outdoor
Other Sta d,ums Sta dlums con struclJon sites Stadium.
In Oakland hIlls
Hookah Bars Ba n ned
Resld enbal
NUisance
~ Yen dln9 Mach Oller 21 bars only Banned Banned Over 21 bars only Oller 21 bars on Iy Over 21 bars only Over 21 bars only Banned
0 T ob RetaIl er No proVl$lon No proVISIOn No plUVlSI"n No provISIOn No provIsion No provISIOn No proVJSIOn No proVISIOn
>- LlCen Sl n g
g)
Ii: Re'rncted 1500 It
U , Locall onl Zonrng of Restncted 1000 It schools parks 6brw1
No provISIOn No provISIOn No prol'lSlon schnols No provIsion No provISIOn No prov"'lOn
; Smoke Shops p<1Jts church.. et<: e, CUP r"'1 See
~ WIling cOOa
E nlon:emenl 293-7073 925-371-m7 194-2345 238-2251 420 3040 925-931-5620 517-3242 471 1365
I
I
AS 131 Labor code :W04 5 Caldomla Smoke Free Workptace Act bans smoking In all Indoor workplaces With some Ilmlled excepbons
~ (1) Allows smoking only under some very reslncbve condltrons Employees I;8n be FT or PT minors are not allowed no employee req to work
In the area air IS exhausted directly outside and employer complies With stale and federal venblabon standards
(2) Smoking prohibited except In truck cabs when no non smoking employees are present
1- 3) Up to 25 percent or 50 percent (depending on sq footage) may be deSignated smokIng by management I
(4) Smokl ng not allowed d unng foodlbeverag e servtce set up and clean up
5) Language bans smOkIng In bus terminals - not mtel1lreted as bus stops
TO report compla,nts conlact Alameda County Tobacco Conlrol Program (510) 208-5920 or conlacllhe aly directly For quesl'Ms M Pohcy ISSUes call Arnencan Lung Assoc"'lon of
CalIfornia (510) 8935474
A!>SlmbIy Bill No 846
CHAPTER 342
An ae.t to amend SectIOns 1999430 and 1999433 of to amend the
headmg ofChdptu 56 (commencmg with SectIOn 1999430) of Part 26
of DIvISion 5 of to ddd Chapter 32 (cormnencmg wIth SectIon 7596) 10
DIVISIon 7 of Title 1 of dnd to rept-aI Sections 19994 31 and 19994 32
of, the Government Code, relatll1g to tobacco
[Appro\ed b) Governor September 8 2003 Flied
\'<lth Secrelmy of Slate September 8 2003 1
LfGISLATIVf COUN'>EL S D1GfST
AS 846, Vargas Smokmg public bUlldmgs
bXlstmg hw prohlblts any stdle t-mployee or member of the publ1c
from smokmg a tobacco product 1l1~lde a state own"d or state occupied
building, or a state led"ed and state-occupied bUlldmg, a~ defined or
wlthm 5 feet of the mam eXlt or entrance of these blllldmg", 01 III a
pa%enger vehlde owned by the stdte
Thl'> bill would mstead prohibit smokmg mSlde a publ1c building, as
defined, and wlthm 20 feet of a malO eXIt, entrance or operable wmdow
of a pubhc bUIlding It would al~o proVide that these provIsIOns would
not preempt the authority ot any county City City and county, California
Commumty CoUcgc campus, campus of tilt. CdhfoffiJa State Umverslty,
or campus of the Umver<>lty ofCallfornJa to adopt and enforce additIOnal
smoking and tobdlw lOntlOl ordmances, regulation", or pOhCIC" that arc
more re~tnctlve Ihan the. "tanddrds reqUlred by thiS bill
ThiS bill would also make other tt.chmldl nonsub<;tantlvc, and
conformmg change" to these provI"lOns
The people of the Stale oj Califorma do enact asfollm'Vs
SECTION 1 Chapter 32 (commcnclIlg With Scclion 7596) IS added
to DlvlslOn 7 ofTJtIe I of the Government Code to lead
CHAPTER 32 SMOKJ1\G IN PL.BUC BUILDINGS
7596 As u"ed 111 thiS chapter
(a) "PubllL bUlldmg' mean<; a blllldmg owned and occnplCd, or
leased and occuplcd, by the stdte, d county a City a city and county, or
a California Commul11ty College dl<;tnct
~~3J-
94
I
.----- -----
A TT ACHMENT 3
r{)~32-
Ch 342
-2-
(I) , ImIde a public buildmg mclude~ all mdoor arca~ of the
bUlldmg except for covo td parkmg lots reSldcnllJl space and ~la!(
pilson yard 1rea~ In~lde a publlc b1111dmg 11~0 mdudcs any mdoor
~pacc Iw"ed to the state county, 01 llty except f01 cO\iertd parkmg lots
and resldenlIal spdec
(2) 'ResIdential ~pace mean') a pnvatcllvmg are1 but It doc" not
mclude common arcas such as lobbies lounges w31tmg areas, elevators
stairwells and restrooms that are a struetlllal pdrt of a multlCompleA
bll1ldmg such as a donmtory
(b) "State or ~tate agency" mean') a state dgency, as delmed
pursuant to Sectton HOOD the LegIslature, the Supreme Court and the
Courts of Appeal and edch campus of the (ahforma State Umvcr"lty
and the Umverslty of Callfornla
(c) Public employee means an employee of a state agency 01 an
employee of a county or city
7597 (a) No pubhc employee or member of the pubhc shall smoke
any tobal..-<'-o product mSlde a pubhc butldmg or m an ouldoor 31 ca wlthm
20 feet of a mam eXIt, entrance or operable wmdow of a pu bl1c bUlldmg
or m a passenger vehicle as defined by SecllOn 46) of the VehIck Code
owned by the state
(b) Tim sectIOn shall not preempt the authonty of any county, CIty,
CIty and county, Cahfomla Commumtv College campu~ campus ofthc
Cahforma State Umverslty, or campus of the Umverslty of Califorma to
adopt and enforce additIOnal smokmg and tobacco wntrol otdmances
regulatlon~ 01 polIcICS that arc more restnctlv", thall the applIcable
standards reqUired by thIS chapter
7598 Except as provld",J III SectIon 7597, a pubhc employcc or
other person may smoke m any outdoor area of a publIe blllldmg unle<;s
othernlse prohIbited by state law or local ordmance and d sign
descnbll1g the prohlbmon IS po:;.ted by the state, county, or CIty agency
or other appropnate entIty
SEC 2 The heddlllg of Chapter 5 6 (wmmencmg With SectIOn-
19994 30) of Part 2 6 of DIVISIOn 5 of the Government Code lS amended
to Icad
CHAPTFR 5 6 TOBACCO CON I ROL
SEC 3 SectIOn 19994 30 of the Government (ode IS amended to
read
19994 30 As used m th IS chapter
(d) BUlldmg mean::. d bUlldmg owned and OCCUPH.-J, or kdSt..d and
occupIed by the "tdte
94
I
1/ ~ ~J-
Assembly Bill No 2067
CHAPTER 736
An act to amend ScctlOn 7596 of the Government Code and to amend
SectlOn 6404 5 of the Labor Codc, rclatmg to smokmg
[Approved by Governor 5>eplcmbcr 29 2006 FIled wIth
Secretary of State Seplember 29 20061
LEGISLATIVE CQUN';EL S DIGFST
AB 2067 Oropcza Smokmg enclosed spaces ofbmldmgs
EXIstmg law prohIbIts smokmg of tobacco products mSlde pubhe
buIidmg~, as defined, but excludes covcred parkmg lot~ from thIS
prohibitIOn EXIstmg law addItlonally prohIbits smokmg m all enclosed
spaces of places of employment as defined
ThIS bIll would define covered parkmg lot, for purposes of the
exclusIOn from the prohIbItJon WIth respect to pubhc bUlldmgs, to exclude
lobbIes, lounges waltlng areas c1evator~, stairwells, and restrooms that
arc a structural part of the covered park10g lot thereby makmg these areas
subJed to the ~mokmg prohibition
ThiS bill would also add a definlt]on of' enclosed space to the law that
prohIbits smokmg In enclo~ed spaces of certalO places of employment to
Include lobbIes lounges waltmg areas, elevators staIrwells and re~trooms
that are a structural part of the bmldmg that IS the place of employment
The VIOlatIOn of the prohlbmon against smokmg m enclosed spaces of
places of employment IS an mfractlOn pumshable by 1 speCIfied fine By
expand10g the scope of an mfractlOn, thiS b1l1 would Impose a
state mandated local program
The California ConstitutIOn reqmres the state to reimburse local
agencies and school dlStncts for certam costs mandated by the state
Statutory provmons establish procedures for making that rClmbursement
ThiS bill would proVide that no reimbursement IS reqmred by thls act for
a speCified reason
The pwple of the State of CalifornIa do enact as follows
SECTION I SectIOn 7596 of the Governmcnt Code ]s amended to
read
7596 As used 10 thiS chapter the followmg terms have the followmg
mcanmgs
(a) Pubhc bUlldmg means a bUlldlng owned and occupIed or leased
and occupied by the state, a county a City, a City and county or a
California commumty college dlstnct
95
}o(;f 3d.-
Ch 736
-2-
(1) 'Inside a pubhc bUlldmg mcludes all mdoor areas of the bUl1dmg
ex.\.-ept for covered parkmg lots and resldentlal space Insldc a pubhc
bUlldlllg also mcludes any Indoor space leascd to the state county or
City, except for covered parkmg lots and resldenl1al spacc
(2) ReSldent131 space means a pnvate hvmg are'l, but It does not
Include common areas such as lobbies lounges waltmg areas clev'ltors,
stamvells and restrooms that 1.re a structural part of a multtcomplex
bUlldmg such as a domlltory
(3) (A) Covered parking lot means an area deSIgnated for the parkmg
of vehicles that IS enclosed or contams a roof or ceIling CoverGd parkmg
lot does not mclude lobbIes lounges waltmg arcas, elevators, stamvells
and restrooms that are a structural part of the parkmg lot or a bUlldmg to
which It IS att'lched
(B) The apphcatlon of thIS subparagr'lph ~haJl not supersede or render
mapphcable permItted .'.moklng of tobacco products under thiS chapter
wlthm any other part of a covered parkmg lot not spcclfically hsted In
subparagraph (I)
(b) State or state agency mC'lns a state agency, as deli ned pursuant
to SectlQn I 1000 the LegIslature the Supreme Court and the courts of
appeal and each eampu<; of the Cahfom13 State Umverslty and the
Un lverSI ty of Cahfornla
(c) Pubhc employee means an employee of a state agency or an
employee of a county or CIty
SEe 2 SectIOn 6404 5 of the Labor Code IS amended to read
64045 (a) The LegIslature finds and declares that regulatIOn of
smoking In the workplace IS a mattcr of stateWide mterest and concern It
IS the mtent of the Legls1ature 10 enactmg thIS sectlOn to prohibIt the
smokmg of tobacco products 10 all (100 percent of) enclosed places of
employment In thIS state as covered by thiS sectton, thereby el1mmatmg
the need of local governments to cnact workplace smokmg restnctlOns
wllhm theIr respectIve JunscllctlOns It IS further the mtent of the
LegIslature to create a umform stateWide standard to restnct and prohIbIt
the smokmg of tobacco products 10 enclosed places of employment, as
speCIfied 10 thIS sectlOn, 10 order to reduce employee exposure to
envIronmental tobacco smoke to a level that WIll prevent anythmg other
than mSlgmfieantly harmful effects to exposed employees and also to
ehmmate the confUSIOn and hardship that can result from enactment or
cnforcement of dlsparate local workplace smokmg restnctlOns
Notwlthstandmg any other proVISIOn of thIS sectlOn, It IS the mtent of the
Leglslamre that any area not defined as a 'place of employment pursuant
to subdlvlslOn (d) or m whIch the smokmg of tobacco products IS not
regulated pursuant to subdIVISIon (e) shall be subject to local regulatIOn of
~mokmg of tobacco products
(b) No employer shall knowmgly or 1OtenhOnally permit and no person
shall engage III the smokmg oftobacco products 10 an enclosed space at a
place of employment Enclosed space mcludcs lobbIes, lounges, waltmg
95
I ::, ~ 2d--
-3-
Ch 736
areas, elevators stamvells and restrooms that are a structural part of the
bmldmg 1.nd not specifically defined In subdlVlslOn (d)
(c) For purpose~ of thIs sectIOn an employer who permllS 1.ny
nonemployee access to hIs or her place of employment on a regular baSIs
Ins not acted knowingly or intentIOnally m vIOlatIOn ofth]s sectIOn Ifhe or
she has taken the followmg reasonable steps to prevent smoking by a
nonemployee
(I) Posted clear and promment SIgns, as follows
(A) Where smoking IS prolub]ted throughout the bmldlng or Structurl
1. sIgn sl1.tmg No smoking shall be posted at edGh entrance to the
bmldmg or structure
(B) Where smokmg ]s penmtted m designated areas of the bUlldmg or
structure a sign statmg Smokmg IS prohIbited except In designated area<;
shall be posted at each entrance to the bmldmg or structure
(2) Has requested whcn appropnate, that a nonemployee who 1S
<;mokmg refram from smokmg In the enclosed workplace
For purpose<; of thiS subdiVISIOn reasonable steps docs not mclude
(A) the phYSical ejectIOn of a nonemployee from the place of employment
or (8) any reqUlrement for makmg a request to a nonemployee to refram
from smoking under circumstances mvolvmg a nsk of phYSical harm to
the employer or any employee
td) For purposes of th]<; sectIOn, place of employment docs not
mclude any of the follOWing
(I) Sixty-five percent of the guestroom accommodattons m a hotel
motel or s]mllar transwnt lodgmg establishment
(2) Areas of the lobby In a hotel motel, or other s]mliar transient
lodging establishment desIgnated for smoking by the estabhshment An
establishment may permIt smokmg In a deSignated lobby area that docs not
exceed 25 percent of the total floor area of the lobby or, If the total area of
the lobby IS 2 000 square feet or less, that does not exceed 50 percent of
the total floor area of the lobby For purposes of thiS paragraph lobby
means the common pubhc area of an estabhshment In whIch registratIOn
and other Similar or related transactIOns or both are conducted and m
which the estabhshment's guests and members of the pubhe typically
wngregate
(3) Meetmg and banquet rooms In a hotel, motel, other transient
lodging establishment Similar to a hotel or motel, restaurant or pubhc
conventIOn center except whlie food or beverage functIOns are taking
place, mcludmg setup service, and cleanup actiVities or when the room ]S
being used for exhibIt purposes At tlmes when smoking IS not permitted
In a meeting or banquet room pursuant to thiS paragraph, the estabhshment
may penmt smokmg m comdors and prefunctlOn areas adjacent to and
servmg the meetmg or banquet room If no employee ]S statIOned m that
COrridor or area on other thdn a passmg baSIS
(4) Retatl or wholesale tobacco shops and pflvate smokers lounges
For pllrpo<;e<; ofth]s paragraph
95
It( ;f3;L
Ch 736
-4-
(A) Pnvate smokers lounge means any enclosed area m or attached
to a retail or wholes lie tobacco shop th1.t IS dedicated to the use of tobacco
products, mcludmg, but not limited to clgars and pipes
(8) RetaIl or wholesale tobacco shop means any busmes~
estabh <;hmcnt thc mam purpose of which IS the sale of tobacco products
mcludlng but not hmlted to, cigars, pipe tobacco and smoking
accessones
(5) Cabs of motortrucks as defined In Section 410 of the Vehicle Code
or truck tractors as defined In SectIOn 655 of the Vehicle Codl If no
nonsmokIng employees are present
(6) Warehouse faclhtles For purposes of thiS paragraph 'warehouse
faclhty means a warehou<;e facIlity WIth more than 100,000 square feet of
total f100rspace and 20 or fewer full-time employee<; workIng at the
facIlity, but does not Include any area Within a faclhty that IS utIl1zed as
offiee spacc
(7) Gaming clubs, In whIch <;mokmg IS pennrtted by subdlVlslOn (f)
For purposes of this paragraph gamIng club means any gammg club, as
defincd In SectIOn 19802 of the Business and ProfesslOns Code, or bmgo
facthty, as dell ned m SectlOn 326 5 of the Penal Code, that restnets access
to minors under 18 year<; of age
(8) Bars and taverns In which smoking IS permitted by subdivISIOn (D
For purposes of thIS paragraph, bar or tavern means a faethty
pnmanly devoted to the servmg of a\cohohc beverages for consumptIOn
by guests on the premises In WhlCh the scrvmg of food IS mCldental 'Bar
or tavern mcludes those faclllt1es located Within a hotel motel, or other
slmllar transient occupancy establishment However when located WithIn
a bUilding In conjunctIOn WIth another use, mcludmg a restaurant bar or
tavern mcludes only those areas used pnmanly for the sale and servlce
of alcoholic beverages Bar or tavern docs not mclude the dmmg areas
of a restaurant regardless of whether alcoholic beverages are served
therem
(9) 1 heatncal productIOn Sites, lf smokmg IS an Integral part of the
story m the theatncal productIOn
(10) Medical research or treatment sites If smokmg IS Integral to the
research and treatment bemg conducted
(11) Pnvate resldence<;, except for pnvate reSidences hcensed as family
day care homes dunng the hours of operation as family day care homes
and m those areas where children are present
(12) Patient smoking areas In long term health care facl litles as defined
m SectIOn 1418 of the Health and Safety Code
(13) Breakrooms designated by employers for smokmg, proVided that
all of the follOWing condltlons are met
(A) Air from the smoking room shall be exhausted duectly to the
outside by an exhaust fan Air from the smoking room shall not be
reCirculated to other parts of the bUilding
(B) The employer shall comply With any ventilatIOn standard or other
standard utllIzmg appropnate technology including but not limited to
95
15 ~ 3c:;l.
-5-
Ch 736
mechamcal electromc and blOtechmcal systems adopted by thc
OccupatlOnal Safety and Health Standards Board or the federal
Environmental Protection Agency If both adopt mconslstent standards,
the ventilatIOn standards of thc Occupa t]onal Safcty and Health Standards
Board shall be no less stnngent than the st1ndards adopted by the federal
Environmental ProtectlOn Agency
(C) The smokmg room shall be located m a nonwork area where no
one, as part of hIs or her work responslbllttles IS reqUired to enter For
purpo~es of this subparagraph, work respOnS]bll1tles does not mclude
any custodml or mallltenance work carned out m the bre1kroom whcn ]t IS
unoccupied
(D) There are sufficient nonsmoklllg breakrooms to accommodate
nonsmokers
(14) Employers with a total of five or fewer employees either full time
or part tIme may perml t smokmg where all of the followmg cond]tlOns are
mct
(A) The smokmg arCd I~ not acccss]ble to mmors
(B) All employees who enter the smokmg area consent to pemllt
smokmg No one as part of his or her work responS]b]litles shall be
reqUired to work m an area where smokmg IS permltted An employer who
IS determmed by the dlV]SlOn to have used coercIOn to obtam consent or
who has reqUired an employee to work m the smokmg area shall be subject
to the penalty prov]slons of SectIOn 6427
(C) Air from the smokmg area shall be exhausted directly to the outside
by an exhaust fan AIr from the smokmg area shall not be reCirculated to
other parts of the bUl Idmg
(D) The employer shall comply wIth any ventllat]on standard or other
standard utlhzmg appropnate technology, mcludlllg, but not limited to,
mechamcal electromc, and blOtechlllcal systems adopted by the
OccupatIOnal Safety and Health Standards Board or the federal
Environmental ProtectIOn Agency If both adopt mconslstent standards,
the ventilatIOn standards of the OccupatIOnal Safety and Health Standards
Board shall be no less stnngent than the standards adopted by the federal
EnvIronmental ProtectIOn Agency
ThIs paragraph shall not be construed to (I) supersede or render
mapplicable any conditIOn or hmltatlOn on smokmg areas madc applicable
to specific types of busmess establishments by any other paragraph of thiS
subd]v]slOn or (II) apply m heu of any otherwise appl1cable paragraph of
thIs subdivIsIOn that has become moperatlve
(c) Paragraphs (13) and ( 14) of subdlVlslOn (d) shall not be construed to
reqUire employer<; to prOVIde reasonable accommodatIOn to smokers or to
provide breakrooms for smokers or nonsmokers
(f) (I) Except as otherwIse provided III thIS subdivIsIOn, smokmg may
be permitted III gammg clubs as defined m paragraph (7) of subd]VISIon
(d) and III bar~ and taverns as defi ned In paragraph (8) of subdlVlslOn (d)
until the earlier of the followmg
(A) January 1 1998
95
/G "13~
Ch 736
-6-
(8) The date of adopllOn of a reguhtlOn (I) by the OccupatlOna I Safety
and Health Standards Board reducmg the permissible employee exposure
level to environmental tobacco ~moke to a level that w1l1 prevent anythlllg
other than 1n~lglllficantly harmful cffects to expo~cd employees or (ll) by
the federal Envlronmental ProtectIOn Agency cstablIshmg a standard for
reductIOn of permlsslble exposure to envlronmcntal tobacco smoke to an
exposure level that wlll prevent anything other than mSlgmficantly harmful
effects to exposed persons
(2) If a regulatIOn specified m subparagraph (B) of paragraph (1) IS
adopted on or before January I 1998 smokmg may thereafter be
pemlltted III gammg clubs and m bars and taverns subject to full
complIance with, or confom11ty to, the standard III the regulatlOn wlthm
two years follOWing the date of adoptIOn of thc regulatIOn An employer
fmllllg to achieve complIance with or conformity to the regulatIOn wlthm
thiS two year penod shall prohIbIt smoking In the gaming club, bar, or
tavern untJI (,ompl1ance or confom11ty IS achieved If the OccupatIOnal
Safety and Health Standards Board and thc federal Envlronmental
ProtectIOn Agency both adopt regulatIOns speclfied m subparagraph (B) of
paragraph (1) that are inconsistent the regulatIOns of the OccupatlOnal
Safety and Health Standards Board shall be no less stringent than the
regulatIOns of the federal EnVironmental ProtectIOn Agency
(3) If '{ regulatIOn speclfi cd m subparagraph (B) of paragraph (I) IS not
adopted on or before January I 1998 the exemptions speclficd III
paragraphs (7) and (8) of subdlVlslOn (d) shall become lnoperatlVe on and
after January I, 1998, until a regulatIOn 15 adopted Upon adoptlOn of sue h
a regulatIOn on or after January I, 1998, smokmg may thereafter be
permltted In gammg clubs and In bars and taverns subject to full
compl1ance With, or conformity to the standard In the regulatlOn wlth1l1
two year<; followmg the date of adoptIOn of the regulatIOn An employer
f311mg to achieve comphance With, or conformity to, the regulatIOn wlthm
thiS two-year peflod ~hal1 prohibit smokmg m the gammg club, bar, or
tavern until complIance or conformity I~ achieved If the OccupatIOnal
Safety and Health Standards Board and the federal EnVIronmental
ProtectIOn Agency both adopt regulatlOns spcclfi ed m subparagraph (8) of
paragraph (1) that are inCOnSistent, the regulatlOns of the OccupatIOnal
Safety and Health Standards Board shall be no less stnngent than the
regulatIOns of the federal EnVironmental ProtectIOn Agency
(4) From January I, 1997, to December 31, 1997, mcluslve, smokmg
may be permitted In gammg clubs as defined m paragraph (7) of
subdiVISIOn (d) and m bars and taverns as defined m paragraph (8) of
subdiVISIOn (d) subject to both of the follOWing eondJtlOns
(A) If practicable the gammg club or bar or tavern shall establish a
deslgnated nonsmokmg area
(B) If feaSible no employee shall be reqUIred, m the perfonnance of
ordmary work responslbtlmes, to enter any area In which smokmg IS
permitted
95
1<><1 c;f 3d-
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Ch 736
(g) The smokmg prohlbltlOn set forth m thIs section shall constitute a
UnIfOrnl <;tatcwlde standard for regulatmg the smokmg of tobacco products
In enclosed places of employment and shall supersede and render
unnecessary the local enactment or enforcement of local ordmances
regulating the smokmg of toblCCO products m enclosed places of
employment Insofar as the smokmg prohlbltlOn set forth m thIs sectlOn 1S
apphcable to all {lOO percent) places of employment wlthm this state and
therefore prov1des thc maximum degree of coverage the practIcal effect
of thIS section IS to ehmmate the nccd of local governments to enact
enclosed workplace smokmg restnetlOn<; wlthm their respective
JunsdlctlOns
th) Nothmg m thIs sectIon shall prohibit an employer from prohlbnmg
smokmg m an enclosed place of employment for any reason
(I) The enactment oflocal regulatlOn ohmokmg of tobacco products m
cnclosed places of employment by local govemmwts shall be suspended
only for 'Is long as, and to the extent that the (l00 percent) smokmg
prohlbmon provided for m thiS SCl-tIon rcmams m effect ]n the event thiS
sectiOn IS repealed or modified by subsequent leglslatIvc or Judicial actlOn
so that the (100 percent) smokmg prohlbltlOn IS no longer apphcablc to all
ene losed p lace<; of employment m Caltfomla local governments shall have
the full nght and authonty to enforce prevlOusly enacted and to enact and
enforce ncw, restnetlons on the smokmg of tobacco products m enclosed
places of employment wltllln their JunsdlctlOlls, mcludmg a complete
prohibition of smokmg Notw1thstandmg any other provlslOn of thiS
section, any area not defined as a place of employment or m whIch
smokmg IS not regulated pursuant to subd1vlslon (d) or (c), shall be subject
to local regulatlOn of smokmg of tobacco products
(j) Any vlOlatlOn of the prohlbltlOn set forth m subdlv1slOn (b) IS an
mfraction pUnishable by a fine not to exceed one hundred dollars ($100)
for a first VIOlatIOn two hundred dollars ($200) for a second VIOlatIOn
wlthm one year and five hundred dollars ($500) for a thIrd and for each
subsequent VIOlatIOn wlthm one year ThiS subdlVlSlQn shall be enforced
by local law enforcement agencies, mcludmg, but not hmlted to, local
health departments as detenmned by the local govcrnmg body
tk) Notwtthstandmg SectlOn 6309 the diVISIon "hall not be reqUired to
respond to any complamt regardmg the smokmg oflObacco products man
enclosed space at a place of employment unless the employer has been
found gUilty pursuant to subdiVISIon (j) of a thIrd vlOlatlOn of subdivIsion
(b) wlthm the prevIOus year
(f) If any provISIon of thiS act or the appl lcatlOn thereof to any person or
circumstances IS held mvahd that mvahdlty shall not affect other
prov1SlOns or applicatIons of the act that can be given effect Without the
mvahd proVISIon or appltcatlon, and to thiS end the proVISIons of thIS act
are severable
SEC 3 No reimbursement IS reqUired by thiS act pursuant to Section 6
of ArtIcle XIlI 8 of the CalifornIa ConstltutlOn because the only costs that
may be mcuITcd by a local agency or school dlstnet Will be mcuITed
95
/8. 13d.-
Ch 736
-8-
because this 1Ct crLate~ a new cnme or mfractlOn ehmmates a cnme or
mfractlOn or changes the penalty for a cnme or mfractlOn, wlthm the
meamng of SectIOn 17556 of the Government Code or changes the
definItIOn of a cnme wlthm the meanmg of SectIOn 6 of Article Xlll B of
the Cahfornla ConstitutIOn
o
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Smokefree HOLJIslng PO~lcy Table
Policy and Enforcement Options for Multi-Unit Housing
June 2007
The followmg Table outlines five different polley options and three enforcement options that
commUnities may adopt to help residents of multl-umt housing reduce or ellmmate their exposure to
secondhand smoke A sample ordinance that mcludes specific legal language lor these policy options has
been produced by the Technical Assistance Legal Center (TALC) and IS available at http //talc phi org
Cities and communities may choose some or all of the policy provISions outlined In this Table Although none
of the options Independently will solve all 01 the problems associated with drifting smoke In multi Unit hOUSing
most commUnities are likely to begin by passing only a few of these policy options and then proceed to pass
the other more extensive policies over time
ThiS Table IS deSigned to help coalitions and commUnities working to create smokefree housmg determine
which policy opllon or set 01 policy options IS appropriate for them ThiS IS a strategic campaign question,
and not a legal one It reqUires coalitions to evaluate their decIsion makers understand their political
enVIronment assess their allies consider their resources and understand their community
As you begin thiS diSCUSSion With your coalition members thiS Table IS Intended to be a tool to help you
evaluate what combination of policies IS reasonable and achievable In your community The diSCUSSion below
of the advantages and disadvantages conSiders the potential level of support for these different
policy/enforcement optIons and a community s ability to organize around them
For qUick reference listed below are the policy and enlorcement options Included In thiS Table
Polley Ootlons
1 No Smoking Common Areas (page 1)
2 Non Smoking Units (page 3)
Senior HOUSing (page 5)
Affordable HOUSing (page 5)
Market Rate HOUSing (page 6)
EXisting HOUSing (page 6)
New HOUSing (page 6)
3 Smokefree Buffer Zones (page 7)
4 Disclosure ReqUirement (page 8)
5 NUisance Ordinance (page 9)
Enforcement Ootlons
6 Local Government Enforcement (page 11)
7 ReqUired Lease Terms (page 12)
8 Private Enforcement (page 13)
Polley POlicy DISCUSSion
Descnptlon
1 No Smoking Common Areas
Would prohibit AdvantaCles
smokmg In all ThiS IS a popular policy option (See Poll Results on page 2) ThiS may be a good first
Indoor and step on the road to passing other smokefree hOUSing policies
outdoor common
areas Current state law already bans smokmg In Indoor common areas If they are
workplaces ThIS policy option would extend thiS prohibition to all Indoor common
Also allows a areas whether they are workplaces or not and would also prohibit smokmq In
Page 1 of 13
Last updale.; f;{7107
~ iJ'li ~ <<b!HI INil ~!i\lIif' 5
t9 ( ~ J~
landlord to
designate an
outdoor smoking
area
outdoor common areas (such as courtyards entryways pool areas and parking lots)
There are many commUnities that have already passed these types of potlcles This
makes It easier to pass this policy In your community because It provides an example
to show decIsion makers the policy works (See Real Life Examples)
This common sense approach may be comfortable for policy makers because It does
not Invotve regulatmg activity inside anyone s home
DlsadvantaCles
This policy option does not address the root of the problem which IS secondhand
smoke drifting Into an apartment from neighboring apartments or balcomes and patios
If smoking IS banned In outdoor areas smokers may be driven back Into their
apartments where they may expose thelf families and neighbors to secondhand
smoke
In general this would be a hard policy to enforce because It ]S not easy to pinpOint
violators The smoker would need to be caught In the act of smoking In order for an
enforcer to know who was responsible for the dnltlng smoke On the other hand you
may be able to spot regular violators relatively easily
Prohibiting smoking In Indoor common areas would provide few public health benefits
because most Indoor common areas are already smokefree through the state law
prohibiting smoking In enclosed workplaces
Poll Results
The Center polled 600 apartment tenants In 2004 They were asked about smoking In
Indoor and outdoor common areas
Only 39% of those polled were aware that mdoor common areas were already
non smoking
67% support making outdoor common areas (entryways sWimming pools
courtyards) non smoking
In addltlon the Center conducted a poll of 300 apartment owners & managers In 2005
When they were asked about smokIng In mdoor and outdoor common areas
74% of owners/managers polled were aware that Indoor common areas were
currently non smoking
67% support making outdoor common areas (entryways sWimming pools
courtyards) non smoking
The Center also polled 400 Hlspamc/Latlno apartment renters In August 2006 TheIr
response to smoking In common areas was
85% of those polled favor making outdoor common areas (entryways SWimming
pools courtyards) non smokmg
(For more Informatton VISit www cahformalung org/thecenter)
Real Life ExamDles
Over 70 communities In California already prohibit smoking In all Indoor common areas
of multi unit hOUSing bUlldmgs (beyond those that are already workplaces)
In addition five commUnities m California proh]blt smoklnq In all mdoor and outdoor
Page20f 13
laS! updale<j 617/07
2 Non Smoking Umts
Would require
new and eXIstIng
multi unit rental
housing
containing a
speCified number
of units to
designate a
percentage of
units as non
smoking (The
TALC sample
ordinance
suggests that
eXisting bUildings
with 1 0 or more
units make 50%
of the Units non
smoking In new
bUildings 75% of
the units non
smoking)
You must decide
whether to use
thiS ordinance for
market rate
housing or a
speCified kind of
housing
(government
subsidized
semor etc) and
whether to
Include eXisting
Page 3 of 13
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o<ol~3J
common areas of multi unit bUildings These commUnities are Calabasas Contra
Costa County EmerYVllle San Mateo County and Temecula
Several communities prohibit smoking In all Indoor common areas but only some
outdoor common areas 01 multi Unit buildings These communities are Arcata DaVIS
Healdsburg laguna Woods and Mann County
Enforcement
ThiS polley can be passed with Just the baSIC Enforcement provISion (see page 11)
which means only the [oca' government can enforce thiS ordinance
Another enforcement option IS the lease Terms prOVISion (see page 12) which
would require that the smoking restriction be Included In the lease agreement ThiS
would allow the landlord as well as other tenants to enforce the no smoking lease
terms against violators
A Private Enforcement option (see page 13) can also be passed allOWing any private
citizen (even one who does not live In the bUilding or who was not exposed to
secondhand smoke) to enforce the ordinance through a laWSUit
AdvantaQes
ThiS option IS the one likely to protect the most Californians from secondhand smoke
exposure
There are numerous voluntary examples that can be used to demonstrate to policy
makers and the community at large that requIring non smoking Units and non smoking
sections can be a very successful pohcy ThiS Will strengthen your argument that thiS
policy Will work community Wide
Public support IS highest for creating non smoking units than for any other policy
option (See Poll Results)
For the most part thiS policy IS likely to be self enforCing because renters can choose
to move Into units that are either smoking or non smoking depending on their
preference
There IS strong support among tenants for eVicting tenants who Violate the non
smoking poliCY If they are given multiple warnings
In order to overcome opposition It IS Important to clarify that smokers may rent a non
smoking Unit so long as they do not smoke In the Unit
The enforcement of thiS option can be constructed so that the first Violation IS Just a
warning ThiS ameliorates the problem of guests aCCidentally smoking In the unit
DlsadvantaQes
ThiS policy proposal Will stimulate Significant OppOSition landlords Will be concerned
about whether they Will be able to rent all their units about whether they Will be
responsible for enforCing the non smoking proVISion and whether they Will be held
liable by non smoking tenants If someone Violates the smoking restnctlon
The Issue of what to do about eXisting tenants who smoke may create political
problems or weaken the ordinance
· The ordinance has a grandfather clause that allows current smoking tenants to
continue smoking In their Unit for as long they live In the unit even If It IS deSignated
as non smoklna Althouah thiS clause may be necessary thiS would weaken any
d.312ol
or Just new
housmg The
pros and cons of
this choice are
discussed below
The percentage
of units to be
designated non
smoking and the
minimum sIZe of
the bUildings to
be regufated are
policy chOices
Thmkmg
strategically
about your
community you
must decide how
to handle
smokers whose
umts are In areas
of a bUlldmg that
IS to become
non smokmg
policy by failing to protect many non smokers from secondhand smoke exposure
Alternatively rather than being for an indefinite penod of time the grandfather
clause can be set for a speCific time penod such as SIX months or a year
Another option would be to offer smoking tenants an Incentive to move to a
designated smoking Unit However Incentives could make the ordinance more costly
and Increase opposition
Poll Results
69% of tenants polled favor a law that would reqUire all apartment bUildings to offer
non smoking sections (where all units patios and balconies In the section were
non smoking)
(Results from the Center poll of 600 apartment tenants In 2004 For more informatIOn
VISit www caltfornlafung org/thecenter)
57% of owners/managers polled would favor a law that would reqUire all apartment
bUildings to offer non smoking sections (where all Units patiOS, and balCOnies In the
section were non smoking)
(Results from the Center poll of 300 apartment owners & managers conducted In 2005
For more Informalion VISit www caltfomla{unQ orQ/thecenter)
82% of Latino renters polled favor a law that would require all apartment bUildings
to offer non smoking sections (where all Units patios and balconies m the section
were non smoking)
(Results from the Center poll of 400 Hispanic/Latino renters conducted m 2006 For
more mformatlon VISit www caflfornlaluna ora/thecenterJ
Real LIfe ExamDles
The City of Temecula passed a policy In May 2007 that reqUires 25 percent of all new
and eXisting multi unit hOUSing to be deSignated as non smoking units
The County of Sacramento passed a resolution In Apnl 2007 that encourages
apartment owners to make 50 percent of their umts non smoking or entire apartment
bUildings non smoking
The City of Thousand Oaks adopted a policy In September 2004 reqUiring that one
third of Units In new affordable hOUSing be non smoking The city updated thiS policy In
March 2007 to reqUire two thirds of newly constructed publicly assisted rental hOUSing
and one half of new supportIVe hOUSing be smokefree
The Housmg AuthOrity of the City of Rancho Mirage made one eXisting senior hOUSing
bUlldmg and all future senior hOUSing buildings non smoking
The City of Sacramento adopted a policy In December 2006 thaI encourages
apartment owners to make 25 percent of their Units non smoking or entire apartment
bUlldmgs non smoking
The HOUSing Authonty of the City of Madera deSignated two out of three semor
bUildings as non smoking
The Santa Barbara HOUSing Authonty adopted a smokefree pohcy for a senior hOUSing
apartment complex
Enforcement
ThiS policy can be passed With Just the baSIC Enforcement provJSJon (see page 11)
which means only the local qovernment can enforce thiS ordinance
Page 4 of 13
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Page 5 of 13
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e2lf ~ 3)
The local government could enforce the non smoking reqUirement against a tenant
who violates the law by smoking In a non smoking Unit
The local government could enforce the law against a landlord for failing to set
aSide the reqUired percentage of non smokmg unlls
Another enforcement option IS the Lease Terms provIsion (see page 12) which
would reqUire that the smoking restriction be Included In the lease agreement This
would allow the landlord as well as other tenants to enforce the no smoking lease
terms against violators
A Pnvate Enforcement opllon (see page 13) can also be passed allowing any private
citizen (even one who does not live In the bUilding or who was not exposed to
secondhand smoke) to enforce the ordinance through a laWSUit
Non Smoking
Umts
Senior HOUSing
Non Smokmg
Umts
Affordable HOUSing
Advantaaes
By fOCUSing away from broader market rate hOUSing not as
many people would be affected and therefore the ordinance
may not encounter as much public oppOSItion
Seniors often have seriOUS health conditions that could be made
worse by secondhand smoke ThiS could make the argument for
thiS policy stronger
Dlsadvantaaes
Because thiS type of policy would only encompass a small
percentage of rental hOUSing It would not cover all of the people
who need protection from drifting secondhand smoke such as
families
In addition It may be extremely difficult to relocate seniors who
currently smoke In a unit that IS to be deSIgnated non smokmg
Advantaaes
By fOCUSing away from market rate hOUSing not as many people
are affected and therefore the ordinance may not encounter as
much public opposition
Because government money IS used to pay for the building or
for subsidizing the rent some people may see thiS as a stronger
reason for why government should be mvolved In ItS regulation
ThiS view could make thiS ordinance a good first step In thiS
policy area
Low Income resIdents of multi Unit hOUSing are particularly
vulnerable to drrftlng secondhand smoke Low Income residents
have few alternative hOUSing opllons have a harder time
moving and are more fearful of complaining to a landlord In
addition there are often higher rates of smoking In thiS
population which creates more opportunities for exposure to
dnftlng smoke
Dlsadvantaaes
Because thiS type of policy would only encompass a small
percentage of the market It would not be covering all of the
people who need protection from secondhand smoke
025 ~ 3d-
Tenants nghts groups may be uncomfortable because such a
policy might result In eVicting those who have very limIted
housing options
It may be harder to find mdlvldual tenants In these populations
willing to speak out
People may be concerned that this policy will make It harder for
low Income lenants to find the type of housing they need
because their pool of potential housing will be narrowed even
more by the designation of non smoking vs smoking Units
Non-Smoking AdvantaQes
Umts More people will likely be covered by thiS option than under a
Market Rate subset of the housing market such as senior or affordable
Housing housing
DlsadvantaQes
Because thiS option covers more people IllS likely 10 face more
opposition
Opponents may be able to make a stronger case that thiS IS an
Improper restnctlon on what people can do In their own home
Non Smoking AdvantaCles
UnIts By covering eXlstmg housing thiS policy option deals directly with
EXlsllng Housing problems that people are currently facing In their homes
ThiS would provide a large pool of non smokmg options for
people looking for rental housing
DlsadvantaQes
With eXisting housing there are likely to be many smokers who
are fearful that their current Unit may become non smoking ThiS
IS likely to create significant Opposition to your poliCY
Your campaign team Will need to thmk strategically to deCide
what to do with those smokers In an apartment unit that IS newly
designated as non smokmg Those who currently smoke In their
units can be grandfathered m or provided incentives as
discussed above
Non Smoking AdvantaQes
Umts ThiS poliCY option eliminates the political problems posed by
New Housmg current tenants who smoke (see above)
By only covering new housmg It IS easier to make entire
bUlldmgs (rather than Just sections of a bUilding) non smoking
because there are no current smokers to deal With ThiS would
provide non smokers With stronger protection
DecIsion makers might like thiS as a first step because It covers
fewer people and Will likely have fewer opponents
ThiS policy begins to proVide a pool of smokefree housing for
those seeking It
Page 6 0113
Last upel aled 617107
cJ'~JJ-
Dlsadvantaoes
All of the tenants who are being affected now by dnfllng
secondhand smoke will have no relief In their current situation
In some established communities there may be no new multi
Unit hOUSing being built
3 Smokefree Buffer Zones
Would ereate a
smokefree buffer
around the
windows and
doors of non
smoking units
and Indoor
common areas
where smoking IS
prohibited
Would result In
prohibiting
smoking on
balconies or
patios near non
smoking units
This policy option
does not make
very much sense
as a stand alone
policy While It
can be passed by
Itself Ideally It
would be passed
with or after non
smokmg Units or
smokefree
common areas
have been
established
The distance
established as a
buffer zone IS a
strategic poltcy
choice
An alternate
choice IS to pass
the buffer around
the entire
apartment
bUlldmg (rather
than Just the non
smokmg units)
Page 7 of 13
LaSI updaled 6fl107
AdvantaQes
This option addresses the large number of current complaints about people smoking
on balconies and patios and exposing people In neighbOring apartments to
secondhand smoke It should be easy to find people willing to testify In favor of such
an ordinance
This policy IS a good companion piece to the deSignation of units as non smoking (see
above) This may serve to encourage the landlord to separate any non smoking Units
even further than required from smoking Units In order to aVOid overlapping balconies
This may be one of the easiest policies to enforce because Violators (espeCially those
who Violate regularly) will likely be easy to spot by managers or tenants
Dlsadvantaoes
As a stand alone policy this does not address the fundamental problem of smoke
drifting from nelghbonng apartments In fact because thiS polley would prohibit people
from smoking outSIde on balconies or patios thiS policy may drrve smokers Indoors
where they may expose their families and neighbors to secondhand smoke
Because of thiS potential for Increased smoking Indoors thiS policy may be more
difficult to pass politically
Depending on the layout of the bUilding thiS policy may make It difficult to find a legal
place to smoke on the grounds of the multi unit hOUSing complex
For enforcement purposes It may also be difficult to know whether a smoker IS Within
the boundary established as a buffer
Poll Results
When polled both tenants and owners/managers understood that secondhand smoke
drifted InSide from outdoors
72% of apartment tenants thought that secondhand smoke could dnft inSide an
apartment Unit from outSide
(Results from the Center poll of 600 aparlment tenants In 2004 For more mformatlon
VISit www califormalung org/thecenter)
80% of owner/managers thought that secondhand smoke could dnft from outSide
an apartment bUilding mto an apartment
(Results from the Center poll of 300 aparlment tenants In 2005 For more information
VISit wwwcalifornlalung org/thecenter)
82% of LaMo renters thought that secondhand smoke could dnft from outSide an
apartment building mto an apartment
(Results from the Center poll of 400 Hlspamc/Latlno renters conducted In 2006 For
more information VISit wwwcaMormalung org/thecenter)
~7 ~ 3J-
Real Life Examples
There are no examples of this type of policy In the multi unit housing context
However the State of California has recognized the fact that secondhand smoke drifts
Indoors from around entrances and eXits of bUlldmgs and as a result has banned
smoking within 20 feet of a main eXit entrance or operable Window of a government
bUilding (Government Code section 7596) In addItIon there are some local ordinances
that also restnct smoking around Windows and doorways
Enforcement
ThiS policy can be passed With Just the basIc Enforcement provISion (see page 11)
which means only the local government can enforce thiS ordinance
Another enforcement option IS the lease Terms prOVISion (see page 12) which
would reqUire that the smoking restriction be Included In the lease agreement ThiS
would allow the landlord as well as other tenants to enforce the no smoking lease
terms against Violators
A Pnvate Enforcement opllon (see page 13) can also be passed allOWing any private
Citizen (even one who does not live In the bUlldmg or who was nol exposed to
secondhand smoke) to enforce the ordinance through a lawsuit
4 Disclosure Requirement
Would reqUIre
landlords to
disclose to
potential tenants
the location of
designated
smoking and
non smoking
Units and
designated
smoking areas
To claf/fy thiS
option does not
reqUire landlords
to fmd out
whether tenants
are smokers
Instead thiS
would merely
reqUIre landlords
to disclose the
status of a rental
umt - whether
the umt IS
deSignated as
smokmg or non
smokmg
Page 8 of 13
Last updale<J 6f7m7
Advantaaes
ThiS policy allows non smokers to make Informed decislons about whether or not to
rent a Unit based on where the smoking and non smoking units are located
By disclOSing that there are non smoking and smoking umts thiS approach could
Increase awareness of the Issue and of people s right to live In a non smoking
environment
Landlords may be more favorable to thiS approach because thiS option allows each
owner to deCide what percentage of the bUilding s units If any to deSignate as non
smoking
ThiS policy option would be strongest In conjunction With an ordmance reqUiring a
certain percentage of non smoking units (see above)
However, thiS policy option could be passed separately (before the non smoking units
policy) ThiS would reqUire a landlord to pOint out which Units are smoking and which
umts he/she has voluntanly deSignated as non smoking ThiS could Increase
awareness of dnftlng secondhand smoke and perhaps lead to the estabhshment of
more voluntary poliCies
Dlsadvantaaes
Because there IS no reqUirement that landlords deSignate any portion of umts as non
smoking thiS policy does not do anything to stop drifting smoke
The ordinance puts a burden on the landlord to keep track of which apartment units
are smoking and non smoking landlords are unlikely to welcome additional legal
reqUirements that they must meet
The landlord may be concerned that he may be held liable If he pOints out a harm (e 9
where the smoking units are) and does nothing to remedy the SItuation ThiS may be
true With other poliCY options but It IS most true With thiS one
O?~~
Poll Results
The Center asked tenants If they supported disclosure of whether tenants smoked In
Units adjoining the Unit they were eonsldermg leasing Note This IS different than the
policy option In the TALC sample ordinance which less controverSially only requires
the disclosure of whether the unit IS a deSignated non smoking Unit or not Although
the option that was polled raises many more privacy concerns It was stili supported by
tenants
61 % of those polled supported thiS policy
36% opposed
(Results from the Center pof! of 600 apartment tenants In 2004 For more informatIOn
VISit www califormalung orglthecenter)
Real LIfe Examoles
Disclosure requirements are common m hOUSing lease agreements although none
currently eXist for exposure to secondhand smoke For example disclosures are made
for lead paint shared utility arrangements the eXistence of the Megan s Law database
known asbestos hazards dangerous mold and notICe of periodic pest control
Enforcement
The local government can enforce the ordinance If they find eVidence that a landlord
has not given potential tenants the floor plan IdentifYing the locations of the smoking
and non smoking Units (see page 11)
A Private Enforcement option (see page 13) can also be passed allowmg any private
citizen (even one who does not live In the bUilding) to enforce the ordinance agamst
the landlord through a laWSUit
5 NUisance Ordinance
Would
speCifically
IdentIfy
secondhand
smoke as a
nUisance
Domg so makes
It easier to prove
a case should
someone wanl to
bnng a laWSUit for
exposure to
secondhand
smoke
It IS a strategic
deCISion whether
or not to go With
the general
nUisance option
(as the TALC
ordmance does)
or a housmg
specifiC nUIsance
ootlOn (as the
Page 9 of 13
last upo;lale<i 617/07
AdvantaQ8S
ThiS provIsion as written In the TALC sample ordinance prOVides broad protection from
secondhand smoke anywhere In the city or county not Just m multi unrt reSidences It
allows anyone who IS exposed to secondhand smoke Without their consent to take the
smoker to court seekmg money damages or a court order to prevent future smoking
Some policy makers may be more comfortable With thiS option because It IS not telling
people what they can do In their own home It IS addressmg the Issue In a more
general way
Even If the law were not used much passing a nUisance law would create publiC
awareness of the problem of dnlllng smoke and ItS ramlllcallOns
The TALC ordinance only requires one non consensual exposure to be a nUisance
The nUisance policy option would proVide protection from dnftlng secondhand smoke
to people liVing In condominiums which many of the other policy options do not
DlsadvantaQ8S
ThiS law reqUires tenants to take legal action to get help If It IS not used the law does
not protect anyone
Tenants may be reluctant to sue thelf neighbors for fear of retaliation from the
neighbor Although there IS a provIsion In the ordinance that makes It unlawful to
retaliate It IS unlikely that thiS Will make people feel entirely comfortable
IndiViduals mav not have the necessary time money, Of familiarity With the court
State of Utah
did)
Page10ot13
LaSI updaled 6/7107
v{q~
system required to act
The poll results demonstrate that this IS not a popular policy option with tenants and
owner/managers
The scope of a nUisance law IS broad and so IS the potential opposition Opposition
could come from well beyond the housmg mdustry
Poll Results
For more InformaMn on the poll results on nUisance please contactlhe Center at
thecenter@californlalung 0 rg
Real life Examples
The State of Utah has passed a nUisance law that applies only to housing slluaMns
not to all secondhand smoke exposure (Unfortunately thiS law IS very restnctlve about
what constitutes a nUisance e g the secondhand smoke has to dnft In more than once
m each of two or more consecutive seven day penods )
In September 2006 the City of Dublin passed an ordmance that designates
secondhand smoke a nUisance ThiS law makes It easier for residents to take legal
action against another resident who exposes them to secondhand smoke
In February 2006 the City of Calabasas passed an ordmance that designates
secondhand smoke as a pubhc nUisance ThiS law makes It easier for residents to
take legal action agamst another resident who exposes them to secondhand smoke
The City of Emeryvllle declared secondhand smoke a nUisance m December 2006 but
the ordinance renders that declaration almost useless by exemptmg the Individuals
and situations where a nUisance law would be most useful
NOise and smell are other common nUisance provIsions that tenants can enforce
against each other
Enforcement
Anyone who has been exposed to non consensual secondhand smoke can sue (m
either small claims court or regular court) In the housing context thiS allows a tenant
who has been exposed to secondhand smoke to sue the smokmg tenant In the non
housing context a Citizen could sue anyone who IS exposmg them to secondhand
smoke Without their consent
Local government could enforce the nUisance provISion against the person who was
generating secondhand smoke and creating the nUisance (see page 11)
A Private Enforcement option (see page 13) can also be passed allOWing any pnvate
Citizen (even one who does not live In the bUilding or who was not exposed to
secondhand smoke) to enforce the ordinance through a lawsUit
c30~ 32
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ENFORCEMENif OF SMOKEFREE HOUSING POLICIES - A CLOSER LOOK
SupplemeriHllrmable,6f Enforcement Options for Smokefree Housing Ordinances
. "'i. ..,..w
The descriptions below are Intended to help those seeking further clarification on the enforcement
provIsions described In the main body of the policy table None of the enforcement provISions below are
stand alone policies they should be passed In conjunction with one of the policy options from the table
This Information follows the TALC sample ordinance enforcement sections Including Enforcement,
Required Lease Terms, and Pnvate Enforcement
Every JUriSdiction should and probably will Include the basIc Enforcement section because this allows the
local government to enforce their laws The other two policies descnbed allow additional people to enforce
the law against violators Lease Terms extends this enforcement ability to the landlord and other
tenants In the building and the Private Enforcement provIsion extends the right of enforcement to the
public
(It IS Important to remember that regardless of the enforcement options described below the landlord can
voluntanly write any of the non smoking requirements Into the lease and can then enlorce It )
'lEnforcenient
Descnptl()n
Enforcement DIScussion
6 Local Government Enforcement
Allows a local
government agerlcy to
enforce the law A tenant
who observes a Violation
of the ordinance would
call the specified
enforcement agency to
report the Violation
The local government
could enforce the
ordmance In two ways
The first IS for an
employee of the
designated local
enforcement agency to
come to the housing
complex actually see the
vlolaMn taking place and
Issue a cltaMn to the
Violator The second way
to enforce the ordinance
Page 11 0113
Last updated 6f7107
Advantaaes
There IS precedent to having a local agency enforce smoking related laws and
ordinances Under the California Smoke Free Workplace Act each local
JUrisdiction has designated an agency (enVIronmental health sheriff s office
fire department) to ensure compliance With this law
This should be easy to pass because the government will want to be able to
enforce ItS own laws
This helps both tenants and landlords aVOid confrontation and enables a
tenant to aVOid an uncooperative landlord by allowing the government agency
to follow up on any reported Violations
The government can hold a landlord responsible for falling to comply With their
responsibilities under the ordinance (such as not designating non smoking
unlls not prOViding a floor plan for new reSidents or for knowingly" permitting
smoking In common areas)
Olsadvantaaes
Requires a city offiCial (police officer or other designated local enforcement
agency employee) to actually come to the complex and see the Violation for
him/herself In order to Issue a citation
IS through a CIvil action m
the tnal court where the
city attorney or county
counsel would file a
lawsuit agamst the
person violating the
ordmance
7 Required Lease Term
Requires that every non
smoking unit have a non
smoking provIsion In the
lease Also requires a
clause stating that It IS a
breach of the lease
agreement to violate any
law restnctlng smoking on
the premises This allows
a landlord to enforce
these lease terms against
Violating tenants by
bnnglng an eViction
action m tnal court
In addition all other
tenants In the housmg
complex would become
beneflclanes of the lease
which gives them the
nght to enforce the non
smoking provISion against
a violating tenant (even If
they themselves are not
exposed to the smoke)
The tenant could go to
trial court to get an
Injunction or to small
claims court to recover
monetary damages
Page 12 of 13
LaSI updated 617107
3} ~ 3..2
The probability of local government uSing their limited resources to enforce this
ordmance by either method (citation or cIvil action) IS not very high
Poll Results
None available al this time
Real Life Examples
This enforcement mechanism IS the way that most every other law In a
community IS enforced
Advantactes
Putting the non smokmg provISion m the lease and allowmg landlords and
tenants to enforce the lease terms creates more opportunities and avenues for
enforcement Tenants suffermg from drifting tobacco smoke no longer must
rely solely on the government to step In and enforce the law
Since the landlord IS neither solely responsible for enforcing nor reqUired to
enforce the non smoking provISion In the lease owners and managers may
not oppose the ordinance as strongly Without their oppOSItion It Will be easier
to pass a non smoking units policy that Includes this enforcement provIsion
Because of the fear of bemg sued thiS provISion may serve as a strong
deterrent for people thmkmg about smoking In a non smoking unit
Dlsadvantaaes
Poll results demonstrate that allowmg tenants to sue other apartment residents
IS an unpopular approach (See Poll Results)
ThiS law may be unsuccessful because It may go unused by tenants who are
exposed to secondhand smoke because they are reluctant to sue their
neighbors
There IS a concern that enforcement actions by landlords Will be less frequent
because they are not ultImately responsible for enforCing the law
Tenants may be reluctant to sue their neighbors for fear of retaliation from the
neighbor Although there IS a provIsion In the ordmance that makes It unlawful
to retaliate It IS unlikely that thiS Will make people feel entirely comfortable
IndiVIduals may not have the necessary time money or famlllanty with the
court system reqUired to act
Poll Results
There are no poll results specifically on thiS enforcement option However poll
results for other poliCY options show that both tenants and apartment
owners/managers do not support approaches that rely on one tenant SUing
another
Owners and tenants were surveyed about their support for enforcement and
eViction of tenants They were asked whether a tenant should be eVicted from
their apartment If there were a law limiting smokmg In apartments and the
tenant had signed a lease that specifies that smoking IS not permitted but then
repeatedly violated the law
70% of tenants felt that the tenant should be eVicted from their apartment
a Private Enforcement
Allows any pnvate citizen
to enforce the ordinance
through a lawsUit This
person does not have to
live In the building or
have been exposed to
secondhand smoke
A SUit could be brought
agamst either a landlord
or a tenant In small
claIms or tnal court
Page 13 of 13
Last updated 6f7107
3~3;L
80% of owners/managers felt that the tenant should be eVicted from their
apartment
60% of Latino renters thought that the tenant should be eVicted from their
apartment
Then owners and tenants were asked about a three step process for enforCing
these laws (Step one would be educating all tenants about the apartment
buildmg s non smoking poliCies Step two would be three separate warnings If
a tenant violates the bUilding s non smokmg policy along With Information
about local programs to help people stop smoking The final step would be
eViction If there IS a fourth Violation)
71% of tenants thought thiS was fair for apartment dwellers
66% of owners/managers thought thiS would be workable
(Results from the Center po!! of 600 apartment tenants conducted In 2004 po!!
of 300 apartment owners & managers In 2005 and poll of 400 Hlspamc/Latlno
renters conducted In 2006 For more information VISit
www califormafung org/thecenter)
Real life Examoles
There are no examples of thiS type of enforcement In smokelree housing
However there are other examples of Similar enforcement options which allow
tenants to sue In small claims court for example for excessive nOise
Advantaaes
ThiS policy option adds additional enforcers which could Increase the chances
of the ordinance being enforced
ThiS allows a tenant who feels uncomfortable sumg and fears retaliation to get
a local organization or some other IndiVidual to sue on their behalf
Allows someone to sue Without haVing to prove actual damages A person
would not have to prove harm from exposure to secondhand smoke Just that
the exposure occurred and It was against the law
Dlsadvantaaes
Because thiS opens tenants and landlords up to so many more potential
laWSUits It seems likely that there Will be serious OppOSition to thiS policy
among the community and policy makers
Poll Results
None available at thiS time
Real life Examoles
In February 2006 the City of Calabasas passed an ordmance restricting
smokmg In Indoor and outdoor common areas of apartments The ordinance
Includes provIsion that allows private enforcement
In addition the tobacco retailer licenSing ordinance In EI Cajon Includes thiS
type of enforcement An mdlvldual may sue a retaller for vlolatmg the licenSing
law