Calabasas, CA Regulating Second-Hand Smoke in Multi-Family Rental Housing

Type: Ordinance
Status: Adopted on 1/16/08
Vote: Unanimous
Source File: http://www.cityofcalabasas.com/pdf/agendas/council/2008/011608/item3-attachment-a.pdf
Text:
ORDINANCE NO. 2008-239
AN ORDINANCE OF THE CITY OF CALABASAS REGULATING SECOND-HAND SMOKE IN MULTI-FAMILY RENTAL HOUSING AND AMENDING THE CALABASAS MUNICIPAL CODE
THE CITY COUNCIL OF THE CITY OF CALABASAS DOES ORDAIN AS FOLLOWS:
SECTION 1. CODE AMENDMENT. Section 8.12.020 of the Calabasas Municipal Code is hereby amended to read as follows:
SEC. 8.12.020 PURPOSE
The purposes of this chapter are to:
A. Protect the public health, safety and general welfare by prohibiting smoking in
public places and in multi-family rental housing under circumstances where other
persons will be exposed to second-hand smoke,
B. Ensure a cleaner and more hygienic environment for the City, its residents, and
its natural resources, including its creeks and streams,
C. Strike a reasonable balance between the needs of persons who smoke and the
needs of nonsmokers, including children, to breathe smoke-free air, recognizing the
threat to public health and the environment which smoking causes,
D. Recognize the right of residents and visitors to the City to be free from
unwelcome second-hand smoke.
SECTION 2. CODE AMENDMENT. Section 8.12.030 of the Calabasas Municipal Code is hereby amended to read as follows:
8.12.030 DEFINITIONS.
The following definitions shall govern construction of this chapter unless the
context clearly requires otherwise:
(A) “Business” means any sole proprietorship, partnership, joint venture,
corporation, association, or other entity formed for profit-making purposes or that
has an Employee.
(B) “Common Area at a Shopping Mall” means any indoor or outdoor common
area of a Shopping Mall accessible to and usable by the occupants or customers of more than one retail establishment, including but not limited to halls, lobbies,
outdoor eating areas, Playgrounds and parking lots.
(C) “Employee” means any person who is employed or retained as an
independent contractor by any Employer or any person who volunteers his or her
services for an Employer, association, or Nonprofit Entity.
(D) “Employer” means any person, partnership, corporation, association,
nonprofit or other entity who or which employs or retains the service of one or
more Employees.
(E) “Enclosed Area” means:
:(1) any covered or partially covered area having more than 50% of its perimeter walled or otherwise closed to the outside such as, for example, a covered porch with more than two walls; or
:(2) any space open to the sky (hereinafter “uncovered”) having more than 75% of its perimeter walled or otherwise closed to the outside such as, for example, a courtyard;
:(3) except that an uncovered space of three thousand (3,000) square feet or more is not an Enclosed Area, such as, for example, a field in an open-air arena.
(F) “Landlord” means any Person other than a sublessor who owns real property
leased as residential property, who lets residential property, or who manages such
property.
(G) “Multi-Unit Residence” means a Premises that contains two or more Units
rented or available to be rented and not occupied by a Landlord of the Premises.
Multi-Unit Residence does not include a condominium as that term is defined in
section 17.90.020 of this code.
(H) “Multi-Unit Residence Common Area” means any indoor or outdoor area of a
Multi-Unit Residence accessible to and usable by residents of more than one Unit,
including but not limited to halls and paths, lobbies, laundry rooms, common
cooking areas, outdoor eating areas, Playgrounds, swimming pools, and parking
areas.
(I) “Nonprofit Entity” means any entity that meets the requirements of
California Corporations Code section 5003 as well as any corporation,
unincorporated association or other entity created for charitable, religious,
philanthropic, educational, political, social or similar purposes, the net proceeds of
which are committed to the promotion of the objectives of the entity and not to
private gain. A public agency is not a nonprofit entity within the meaning of this section.
(J) “Place of Employment” means any area under the legal or de facto control of
an Employer, Business or Nonprofit Entity that an Employee or the general public
may enter in the normal course of operations, but regardless of the hours of
operation, including, for example, indoor and outdoor work areas, construction
sites, vehicles used in employment or for business purposes, taxis, Employee
lounges, conference and banquet rooms, bingo and gaming facilities, long-term
health facilities, warehouses, and, while Employees, children or patients are
present, private residences that are used as child-care or health-care facilities
subject to licensing requirements.
(K) “Playground” means any park or Recreational Area designed in part to be
used by children that has play or sports equipment installed or has been designated
or landscaped for play or sports activities, or any similar facility located on public or
private school grounds, or on city property.
(L) “Premises” means a parcel of land and any improvements upon it such as is
usually described in a deed, deed of trust or mortgage, and includes legally
separate but contiguous pieces of land that are owned by the same natural Person
or by legal Persons under common control.
(M) “Present” means within a Reasonable Distance.
(N) “Private Enforcer” is defined in section 8.12.080(B) of this code.
(O) “Public Place” means any public or private place open to the general public
regardless of any fee or age requirement, including, for example, streets, sidewalks,
plazas, bars, restaurants, clubs, stores, stadiums, parks, Playgrounds, taxis, and
buses.
(P) “Reasonable Distance” means a distance of twenty feet or, with respect to a
designated Smoking area, such larger area as the city manager reasonably
determines in writing to be necessary in a given circumstance to ensure that
occupants of an area in which Smoking is prohibited are not exposed to
secondhand Smoke created by smokers outside the area.
(Q) “Recreational Area” means any public or private area open to the public for
recreational purposes whether or not any fee for admission is charged, including
without limitation, parks, gardens, sporting facilities, stadiums, and Playgrounds.
(R) “Shopping Mall” means any parcel of land zoned and used for retail sales by
more than one retailer that is jointly operated or which includes shared parking
facilities.
(S) “Smoking” or to “Smoke” means possessing or to possess a lighted tobacco
product, lighted tobacco paraphernalia, or any other lighted weed or plant (including
but not limited to, a lighted pipe, lighted hookah pipe, lighted cigar, or lighted
cigarette of any kind), or the lighting of a tobacco product, tobacco paraphernalia,
or any other weed or plant (including but not limited to, a pipe, a hookah pipe,
cigar, or cigarette of any kind).
(T) “Tobacco Product” means any substance containing tobacco leaf, including
but not limited to cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping
tobacco, bidis, or any other preparation of tobacco.
(U) “Unenclosed area” means any area which is not an Enclosed Area.
(W) “Unit” means: (1) a dwelling space consisting of essentially complete
independent living facilities for one or more persons, including, for example,
permanent provisions for living and sleeping, and any associated private outdoor
spaces such as balconies and patios; and (2) senior citizen housing and single room
occupancy hotels, as defined in California Health and Safety Code section
50519(b)(1), even where lacking private cooking or plumbing facilities. “Unit” does
not include lodging in a hotel or motel that meets the requirements set forth in
California Civil Code section 1940(b)(2).
SECTION 3. CODE AMENDMENT. Section 8.12.035 of the Calabasas
Municipal Code is hereby adopted to read as follows:
8.12.035 SECONDHAND SMOKE GENERALLY
For all purposes within the jurisdiction of the city, nonconsensual exposure to
secondhand smoke in violation of this chapter is a nuisance, and the uninvited
presence of secondhand smoke on property in violation of this chapter is a
nuisance and a trespass.
SECTION 4. CODE AMENDMENT. Section 8.12.040 of the Calabasas
Municipal Code is hereby amended to read as follows:
8.12.040 PROHIBITION OF SMOKING
(A) Public and Other Places Where Smoking Prohibited. Except as otherwise
provided by this chapter or by state or federal law, Smoking is prohibited
everywhere in the city, including but not limited to:
:(1) Public Places;
:(2) Places of employment;
:(3) Multi-unit Residence Common Areas;
:(4) Enclosed and unenclosed places of hotels, Businesses, restaurants, and bars, and other public accommodations.
(B) Places Where Smoking Permitted. Notwithstanding subsection (A) of this
section, Smoking is permitted in the following locations within the city, unless
otherwise provided by state or federal law:
:(1) Private residential property, other than (a) those used as a child-care or health-care facility subject to licensing requirements when Employees, children or patients are present or (b) as provided in section 8.12.051 to 8.12.055 of this chapter with respect to Multi-Unit Residences. Nothing in this chapter shall require a person or entity who or which owns or controls a private residential property, including but not limited to a condominium association or an apartment owner, to permit Smoking and such a person may prohibit Smoking throughout the property he, she or it owns or controls.
:(2) In up to twenty (20) percent of guest rooms in any hotel or motel, if the hotel or motel permanently designates at least eighty (80) percent of its guest rooms as nonsmoking rooms, appropriately signs nonsmoking rooms and permanently removes ashtrays and matches from them. Smoking rooms shall be segregated from nonsmoking rooms on separate floors, wings, or portions of either; Smoking and nonsmoking rooms shall not be interspersed. Nothing in this chapter shall require a hotel or motel to provide Smoking rooms and the owner or operator of a hotel or motel may choose to prohibit Smoking throughout the property.
:(3) Designated Unenclosed Areas in Shopping Mall common areas (“smokers’ outposts”), provided that (i) there is not more than one square foot of Unenclosed Area designated for Smoking for every twenty thousand (20,000) square feet of rentable enclosed or unenclosed space of the Shopping Mall (provided that each Shopping Mall may have at least one smokers’ outpost of forty (40) or fewer square feet in area, (ii) the area is prominently marked with signs, (iii) it is located the greatest distance practicable, and at least five feet, from any doorway or opening into an Enclosed Area or any access way from parking facilities to the retail areas of the Shopping Mall, (iv) smoke is not permitted to enter adjacent area in which Smoking is prohibited by this chapter, other law or by the owner, lessee or licensee of the adjacent property, and (v) the location(s) of the smokers’ outpost(s) is or are approved in writing by the city manager of the city based on the standards of this subsection and the goals of this chapter.
:(4) Any outdoor area in which no nonsmoker is present and, due to the time of day or other factors, it is not reasonable to expect another person to arrive.
(C) No person shall dispose of Smoking waste or place or maintain a receptacle
for Smoking waste in an area in which Smoking is prohibited by this chapter or
other law, including within any Reasonable Distance required by this chapter.
SECTION 5. CODE AMENDMENT. Section 8.12.050 of the Calabasas
Municipal Code is hereby amended to read as follows:
8.12.050 REASONABLE DISTANCE REQUIRED
No person shall Smoke in an area in which Smoking is otherwise permitted by this
chapter or other law within a Reasonable Distance from any entrance, opening, crack,
or vent into an Enclosed Area in which Smoking is prohibited by this chapter, other
law or by the owner, lessee or licensee of that Enclosed Area.
SECTION 6. CODE AMENDMENT. Sections 8.12.051, 8.12.053, 8.12.055,
8.12.057 and 8.12.059 of the Calabasas Municipal Code are hereby adopted to read
as follows:
8.12.051 NO SMOKING COMMON AREAS, DESIGNATED SMOKING AREA
(A) Notwithstanding the prohibition of Smoking in all Multi-Unit Residence
Common Areas established by section 8.12.040 of this chapter, a Landlord of a
Multi-Unit Residence shall designate a portion of the outdoor area of the Premises
as a Smoking area as provided in paragraph (B) below.
(B) A designated Smoking area must:
:(1) be located a Reasonable Distance from any indoor area where Smoking is prohibited;
:(2) not include, and be a Reasonable Distance from, outdoor areas primarily used by children including, but not limited to, Playgrounds and other areas improved or designated for play or swimming;
:(3) be no more than 25% of the total outdoor area of the Premises on which it is located;
:(4) have a clearly marked perimeter;
:(5) be identified by conspicuous signs; and
:(6) not overlap any area in which Smoking is otherwise prohibited by this chapter, other provisions of this code, or other law.
:(7) If the requirements set forth in subdivision (B)(1) or subdivision (B)(2) of this section cannot be satisfied due to unique circumstances affecting a Multi-Unit Residence, the city manager may approve a Smoking area that meets the requirements of this section to the extent practicable or, if in his or her judgment such an area cannot be designed, the city manager may exempt the Landlord from the requirement to designate a Smoking area.
8.12.053 SMOKE-FREE BUFFER ZONES
Smoking is prohibited (i) on the Premises of a Multi-Unit Residence and (ii) in
any Public Place within a Reasonable Distance of any entrance, opening, or other
vent into an Enclosed Area of a Multi-Unit Residence in which Smoking is
prohibited by this chapter, other provisions of this code, or other law. For example,
and without limitation, Smoking on balconies, porches, or patios of a non-Smoking
Unit is prohibited.
8.12.055 SMOKE-FREE MULTI-UNIT RESIDENCES
(A) Except as provided in subsection (B) of this section, on or before January 1,
2012, at least 80% of the Units in all Multi-Unit Residences shall be designated
as non-smoking Units, and Smoking shall be prohibited inside such Units. Upon
designating non-smoking Units and not later than January 1, 2012, the Landlord
shall give written notice to every lawful tenant(s) then in occupancy of each
non-smoking Unit, informing the tenant(s) that Smoking is prohibited inside that
Unit. If fewer than all Units in a Multi-Unit Residence are designated as nonsmoking
Units, non-smoking Units shall be grouped together (e.g., horizontally
and/or vertically) and physically separated from Smoking Units to the maximum
extent practicable; if a Multi-Unit Residence is comprised of more than one
building, smoking units shall be contained in as few buildings as possible.
(B) Upon designating non-smoking units and not later than January 1, 2012,
each Landlord of an existing Multi-Family Residence that is not a “new” Multi-
Family Residence shall give written notice to every lawful tenant(s) who has
continuously occupied a Unit in the Multi-Family Residence from February 1,
2008 to the date the notice is given, informing the tenant(s) of his or her right
to make a written request to the Landlord that his or her Unit be designated a
Smoking Unit during his or her tenancy. Upon such a request, the inside of
such Unit shall not be subject to the Smoking restrictions of this section while
such tenant(s) continuously occupy(ies) the Unit. If such tenant(s)
subsequently relocates from that Unit to another Unit within the same Multi-
Unit Residence, both such Units shall thereafter be subject to the Smoking
restrictions of this section unless either is designated as a Smoking unit as
permitted by paragraph A above. A Multi-Unit Residence shall be considered “new” for purposes of this section if a certificate of occupancy for any Unit is
first issued by the city after February 1, 2008.
(C) By July 1, 2008, each Landlord of a Multi-Family Residence in the city shall
report, in writing, to the city manager, the number and locations of (i)
designated non-smoking units in the Multi-Family Residence, (ii) any Unit in the
Multi-Family Residence which is designated as a grand-fathered Unit under
paragraph (B) of this section, (iii) designated smoking units in the Multi-Family
Residence, and (iv) the location of any smoking area designated pursuant to
paragraph (B) of section 8.12.051 of this code. Each Landlord of a Multi-Family
Residence in the city shall make this written report annually thereafter until the
Multi-Unit Residence for which the report is made complies with the 80%
smoke-free requirement of paragraph (A) of this section, exclusive of grandfathered
smoking units under paragraph (B) of this section.
8.12.057 REQUIRED LEASE TERMS
(A) Every new lease or other agreement entered into after the effective date of
this section for the occupancy of a Unit in a Multi-Unit Residence, other than a
renewal of an existing lease to a tenant subject to section 8.12.055(B), shall
include:
:(1) a clause stating that Smoking is prohibited in the Unit, if the Unit has been designated as a non-smoking Unit;
:(2) a clause stating that it is a material breach of the lease or agreement to (i) violate any law or rule regulating Smoking while on the Premises; (ii) Smoke inside a non-smoking Unit or (iii) Smoke in any Multi-Unit Residence Common Area in which Smoking is prohibited by the Landlord or by law; and
:(3) a clause stating that all lawful occupants of Units in the Multi-Unit Residence are third-party beneficiaries of the clauses required by subsections (A)(1) and (A)(2) of this section.
(B) The lease or agreement terms required by subsection (A) of this section are
hereby incorporated by force of law into any lease or other agreement for the
occupancy of a Unit in a Multi-Unit Residence made on or after the effective date
of this section which lease does not fully comply with subsection (A).
(C) A tenant who breaches the Smoking regulations included in a lease
pursuant to subsection (A) of this section, or incorporated into a lease by
subsection (B) of this section, or who knowingly allows another person to do so
shall be liable to: (i) the Landlord; and (ii) to any lawful occupant of a Unit in the
Multi-Unit Residence who is exposed to secondhand smoke as a result of that
breach.
(D) A Landlord shall not be liable to any person for a tenant’s breach of Smoking
regulations if:
:(1) the Landlord has fully complied with subsection (A) of this section, and
:(2) upon receiving a signed written complaint regarding prohibited Smoking, the Landlord provides a written warning to the offending tenant, stating that such tenant may be evicted if another complaint is received. Upon receipt of a second signed, written complaint against the offending tenant, the Landlord may evict such tenant, but will not be held liable for the failure to do so.
(E) Failure to enforce any Smoking regulation of a lease or agreement on one or
more occasions shall not constitute a waiver of the lease or agreement provisions
required by this section and shall not prevent future enforcement of any such
Smoking regulation.
8.12.059 DISCLOSURE OF UNITS SUBJECT TO SMOKING RESTRICTIONS BY LANDLORD
Every Landlord shall maintain a list of designated non-Smoking Units and a floor
plan identifying the relative positions of Smoking and non-Smoking Units. The floor
plan also shall identify the location of any designated Smoking Areas. A copy of
this list and floor plan shall accompany every new lease or other agreement for the
occupancy of a Unit in a Multi-Unit Residence entered into after the sooner of (i)
the date non-smoking units are first designated by the Landlord under this chapter
or (ii) January 1, 2012.
SECTION 7. CODE AMENDMENT. Section 8.12.060 of the Calabasas
Municipal Code is hereby amended to read as follows:
8.12.060 ALLOWING, AIDING OR ABETTING SMOKING
(A) No person, Employer, Business, or Nonprofit Entity shall knowingly permit
Smoking in an area under his, her, or its legal or de facto control in which Smoking
is prohibited by this chapter or other law.
(B) No person, Employer, Business, or Nonprofit Entity shall allow the
placement or maintenance of a receptacle for Smoking waste in an area under his,
her, or its legal or de facto control in which Smoking is prohibited by this chapter or
other law.
(C) Notwithstanding any other provision of this chapter, any owner, Landlord,
Employer, Business, Nonprofit Entity, or other person who or which has legal or de
facto control over any property may declare any area in which Smoking would otherwise be permitted to be a nonsmoking area and, provided that signs are
posted giving notice of the Smoking restriction, Smoking in or within a Reasonable
Distance of that area shall constitute a violation of this chapter.
(D) “No Smoking” or “Smoke Free” signs, with letters of not less than one inch
in height or the international “No Smoking” symbol (consisting of a pictorial
representation of a burning cigarette enclosed in a red circle with a red bar across
it) or any alternative signage approved by the city manager shall be conspicuously
posted by the person, employer, business, or nonprofit entity who or which has
legal or de facto control of such place at each entrance to a public place in which
Smoking is prohibited by this chapter or any other place where the city manager
reasonably determines that Smoking in violation of this chapter has occurred, or is
likely to occur. The city manager shall post signs at each entrance to a public
place in which Smoking is prohibited by this chapter which is owned or controlled
by the city. Signage required by this subsection shall not be subject to Chapter
17.30 (“Signs”) of this code. Notwithstanding this provision, the presence or
absence of signs shall not be a defense to the violation of any other provision of
this chapter, except as to an area in which Smoking is prohibited only by
subsection (C) of this section.
SECTION 8. CODE AMENDMENT. Paragraph (A) of Section 8.12.070 of the
Calabasas Municipal Code is hereby amended to read as follows:
(A) A violation of this chapter shall constitute a misdemeanor punishable
pursuant to chapter 1.16 of this code unless the prosecutor determines to
prosecute it as an infraction as authorized by section 1.16.010(a).
SECTION 9. SEVERABILITY. If any section, subsection, subdivision, paragraph,
sentence, clause or phrase of this Ordinance, or its application to any person or
circumstance, is for any reason held to be invalid or unenforceable, such invalidity or
unenforceability shall not affect the validity or enforceability of the remaining sections,
subsections, subdivisions, paragraphs, sentences, clauses or phrases of this
Ordinance, or its application to any other person or circumstance. The City Council of
the City of Calabasas hereby declares that it would have adopted each section,
subsection, subdivision, paragraph, sentence, clause or phrase hereof, irrespective of
the fact that any one or more other sections, subsections, subdivisions, paragraphs,
sentences, clauses or phrases hereof be declared invalid or unenforceable.
SECTION 10. CONSTRUCTION. The City Council intends this Ordinance to
supplement, not to duplicate or contradict, applicable state and federal law and this
Ordinance shall be construed in light of that intent. To the extent the provisions of the
Calabasas Municipal Code as amended by this Ordinance are substantially the same as
the provisions of that Code prior to the effectiveness of this Ordinance, then those
amended provisions shall be construed as continuations of the earlier provisions and
not as new enactments.
SECTION 11. EFFECTIVE DATE. Except as otherwise provided herein, this
Ordinance shall take effect thirty days after its adoption pursuant to California
Government Code section 36937.
SECTION 12. CERTIFICATION. The City Clerk shall certify to the passage and
adoption of this Ordinance and shall cause the same to be published or posted
according to law.
Category:California
Category:City Governments
Category:Ordinances
Category:Smoking