HomeMy WebLinkAbout2017-01-09 Ordinance 54051
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Ordinance No. 5405
Ordinance of the Council of the City of Palo Alto Amending
Chapter 9.14 (Smoking and Tobacco Regulations) of the Palo Alto
Municipal Code to Establish New Smoking Restrictions for Multi
Family Housing
The Council of the City of Palo Alto does ORDAIN as follows:
SECTION 1. Findings and Declarations. The City Council finds and declares as follows:
(a) That the adoption of this Ordinance is necessary to protect the public health,
safety and welfare for the reasons set forth in section 9.14.005. The purposes of this Ordinance
are to ban smoking in multiunit housing in order to reduce the risks of second hand smoke and
vapor, reduce litter, and enhance enjoyment of these areas.
SECTION 2. Chapter 9.14 of the Palo Alto Municipal Code is hereby amended to read as
follows:
Chapter 9.14: Smoking and Tobacco Regulations
9.14.005 Purpose.
The purpose of this Chapter is to:
(a) Protect the public health, safety and general welfare by prohibiting smoking and
use of electronic smoking devices in multiunit housing, public parks, public places, service
locations, city pool cars, child day care facilities, and unenclosed eating establishments.
(b) Ensure a cleaner and more hygienic environment within the city, reduce litter,
and protect the City's natural resources, including creeks and streams.
(c) Enhance the welfare of residents, workers, and visitors by reducing exposure to
second hand smoke, which studies confirm can cause negative health effects in nonsmokers.
(d) Balance the needs of persons who smoke with the needs of nonsmokers,
including children and youth, to be free from the discomforts and health threats created by
exposure to secondhand smoke and vapor.
9.14.010 Definitions.
The following words and phrases, whenever used in this chapter shall be construed as defined
in this section:
(a) “Adjacent Unenclosed Property” means any Unenclosed Area of property,
publicly or privately owned, that abuts a MultiUnit Residence
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(ab) "Bar" means an area which is devoted to serving alcoholic beverages and in
which serving food is only incidental to the consumption of such beverages. "Bar" shall include
bar areas within eating establishments which are devoted to serving alcoholic beverages and in
which serving food is only incidental to the consumption of such beverages.
(bc) ”City car" means any truck, van or automobile owned by the city and operated
by a city employee.
(d)(c) “Commercial Area” means an area, including all publicly owned sidewalks, alleys,
parking areas, public places, outdoor dining areas, service areas, etc. within areas zoned in the
City’s Comprehensive Plan as regional/community commercial (including Downtown, California
Avenue Business District, Town and Country, and Stanford Shopping Center) and Neighborhood
Commercial.
(e) “Common Area” means every Enclosed Area and every Unenclosed Area of a
MultiUnit Residence that residents of more than one Unit are entitled to enter or use,
including, without limitation, halls, pathways, lobbies, courtyards, elevators, stairs, community
rooms, playgrounds, gym facilities, swimming pools, parking garages, parking lots, grassy or
landscaped areas, restrooms, laundry rooms, cooking areas, and eating areas.
(df) "Eating establishment" means a coffee shop, cafeteria, shortorder café,
luncheonette, sandwich shop, soda fountain, restaurant, or other establishment serving food to
members of the public.
(eg) “Electronic smoking device” means an electronic and/or batteryoperated device
that can deliver an inhalable dose of nicotine to the user. “Electronic smoking device” includes
any product meeting this definition, regardless of whether it is manufactured, distributed,
marketed or sold as an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe,
electronic hookah, electronic vape, vaporizer or any other product name or descriptor.
(fh) "Employee" means any person who is employed by any employer in
consideration for direct or indirect monetary wages or profit.
(gi) "Employee eating place" means any place serving as an employee cafeteria,
lunchrooms, lounge, or like place.
(hj) "Employer" means any person who employs the services of an individual person
or persons.
(ik) "Enclosed" means either closed in by a roof and four walls with appropriate
openings for ingress and egress or not open to the sky due to a cover or shelter consisting of a
tarpaulin, tent structure or other impermeable or semipermeable materials or fabric.
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(l) “Enclosed Area” means an area in which outside air cannot circulate freely to all
parts of the area, and includes an area that has:
(1) any type of overhead cover, whether or not that cover includes vents or
other openings and at least three (3) walls or other physical boundaries
of any height, whether or not those boundaries include vents or other
openings; or
(2) four (4) walls or other vertical boundaries that exceed six (6) feet in
height, whether or not those boundaries include vents or other
openings.
(m) “Landlord” means any Person or agent of a Person who owns, manages, or is
otherwise legally responsible for a Unit in a MultiUnit Residence that is leased to a residential
tenant, except that “Landlord” does not include a tenant who sublets a Unit (e.g., a sublessor).
(jn) "Motion picture theater" means any theater engaged in the business of
exhibiting motion pictures.
(o) “MultiUnit Residence” means property containing two (2) or more Units,
including, but not limited to, apartment buildings, condominium complexes, senior and assisted
living facilities, and longterm health care facilities. MultiUnit Residences do not include the
following:
(1) a hotel or motel that meets the requirements of California Civil Code
section 1940, subdivision (b)(2);
(2) a mobile home park;
(3) a singlefamily home; and
(4) a singlefamily home with a detached or attached inlaw or second
unit
(p) “Nonsmoking Area” means any Enclosed Area or Unenclosed Area in which Smoking
is prohibited by (1) this chapter or other law; (2) binding agreement relating to the ownership,
occupancy, or use of real property; or (3) designation of a Person with legal control over the
area.
(kq) “Public Event” means events open to the general public, including but not
limited to a farmers’ market, parade, craft fair, festival, or any other such event.
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(lr) "Public places" means enclosed areas within publicly and privately owned
buildings, structures, facilities, or complexes that are open to, used by, or accessible to the
general public. Public places include, but are not limited to, stores, banks, eating
establishments, bars, hotels, motels, depots and transit terminals, theaters and auditoriums,
enclosed sports arenas, convention centers, museums, galleries, polling places, hospitals and
other health care facilities of any kind (including clinics, dental, chiropractic, or physical therapy
facilities), automotive service centers, general business offices, nonprofit entity offices and
libraries. Public places further include, but are not limited to, hallways, restrooms, stairways,
escalators, elevators, lobbies, reception areas, waiting rooms, indoor service lines, checkout
stations, counters and other pay stations, classrooms, meeting or conference rooms, lecture
rooms, buses, or other enclosed places that are open to, used by, or accessible to the general
public.
(ms) "Service locations" means those enclosed or unenclosed areas open to, used by,
or accessible to the general public that are listed below:
(1) Bus, train and taxi shelters;
(2) Service waiting areas including, but not limited to, ticket or service lines,
public transportation waiting areas, and public telephones;
(3) Areas within twentyfive feet of the entrance or exit to an enclosed public
place, where smoking is prohibited;
(4) Areas in dedicated parks or other publicly accessible areas that are within
twentyfive feet of bleachers, backstops, or play structures.
(nt) "Smoking" means inhaling, exhaling, burning, or carrying any lighted, heated, or
ignited cigar, cigarette, cigarillo, pipe, hookah, electronic smoking device, or any plant product
intended for human inhalation.
(ou) "Tobacco product" means any substance containing tobacco leaf, including but
not limited to cigarettes, cigars, smoking tobacco, and smokeless tobacco.
(pv)"Tobacco store" means a retail store utilized primarily for the sale of tobacco
products and accessories and in which the sale of other products is incidental.
(qw) "Tobacco vending machine" means any electronic or mechanical device or
appliance the operation of whichdepends upon the insertion of money, whether coin or paper
bill, or other thing representative of value, which dispenses or releases a tobacco product
and/or tobacco accessories.
(x) “Unenclosed Area” means any area that is not an Enclosed Area.
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(y) “Unit” means a personal dwelling space, even where lacking cooking facilities or
private plumbing facilities, and includes any associated exclusiveuse Enclosed Area or
Unenclosed Area, such as, for example, a private balcony, porch, deck, or patio. “Unit” includes,
without limitation, an apartment; a condominium; a townhouse; a room in a senior facility; a
room in a longterm health care facility, assisted living facility, or hospital; a room in a hotel or
motel; a dormitory room; a room in a single room occupancy facility; a room in a homeless
shelter; a mobile home; a camper vehicle or tent; a singlefamily home; and an inlaw or second
unit.
(rz) “Vapor” means aerosol produced from use of an electronic smoking device.
(saa) "Workplace" means any enclosed area of a structure or portion thereof used as a
place of employment as well as unenclosed workplaces, such as outdoor construction sites.
9.14.020 Smoking prohibited Enclosed Places.
(a) Smoking and the use of electronic smoking devices is prohibited in the Enclosed
Areas of the following places within the City of Palo Alto, except in places subject to prohibition
on smoking contained in Labor Code section 6404.5, in which case that law applies
(1) Workplaces;
(2) Public places;
(3) Units within MultiUnit residences; and
(4) Common Areas of MultiUnit residences.
The effective date of the smoking prohibition provided in subdivisions (3) and (4) of this Section
is January 1, 2018.
(b) Any places exempted by the California smoke free workplace law (Labor Code
Section 6404.5(d)) are not exempt under this chapter. Smoking is prohibited by this chapter in
all places exempted by that State law, except as provided in 9.14.070.
9.14.025 Smoking prohibited Unenclosed Areas.
(a) Smoking and the use of electronic smoking devices in all unenclosed areas
defined as Service Locations shall be prohibited, including a buffer zone within 25 feet from any
doorway, window, opening, crack, or vent into an Enclosed Area in which Smoking is
prohibited, except while the Person Smoking is actively passing on the way to another
destination and provided Smoke does not enter any Enclosed Area in which Smoking is
prohibited.
(b) Smoking and the use of electronic smoking devices is prohibited in unenclosed
eating establishments and bars.
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9.14.030 Smoking prohibited City pool cars.
Smoking and the use of electronic smoking devices is prohibited in all city cars.
9.14.035 Smoking Prohibited Public Parks and Public Events.
Smoking and the use of electronic smoking devices is prohibited in all parks, including at public
events.
9.14.040 Smoking prohibited Child day care facilities.
Smoking is prohibited in a private residence which is licensed as a child day care facility within
the meaning of Health and Safety Code Section 1596.750 and Section 1596.795 and
amendments.
9.14.045 Smoking prohibited – Commercial Areas and Public Events.
Smoking and the use of electronic smoking devices is prohibited in commercial areas, except
places where smoking is already prohibited by state or federal law, in which case those laws
apply. This prohibition includes public events held on public streets. A shopping center or
commercial areas may establish a designated smoking area that is at least 25 feet away from
any openings and includes receptacles to control litter.
9.14.050 Smoking Prohibited Outdoor Common Areas of all Multi Unit Residences.
Smoking and the use of electronic smoking devices is prohibited in Outdoor Common Areas of
all MultiUnit Residences, provided, however, that a Person with legal control over a Common
Area may designate a portion of the Unenclosed Area of the Common Area as a designated
smoking area if the area meets the following criteria:
(1) Must be an Unenclosed Area;
(2) Must be at least twentyfive (25) feet from Unenclosed Areas primarily used by
children and Unenclosed Areas with improvements that facilitate physical activity
including, for example, playgrounds, tennis courts, swimming pools, and school
campuses;
(3) Must be at least twentyfive (25) feet in any direction from any operable
doorway, window, opening or other vent into an Enclosed Area that is located at the
MultiUnit Residence and is a Nonsmoking area;
(4) Shall have a clearly marked perimeter;
(5) Shall have a receptacle for cigarette butts that is emptied and maintained, and
(6) Shall be identified by conspicuous signs.
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9.14.055 Smoking Prohibited Nonsmoking Buffer Zones.
Smoking and the use of electronic smoking devices is prohibited in Adjacent Unenclosed
Property within twentyfive (25) feet in any direction of any doorway, window, opening, or
other vent into an Enclosed Area of a MultiUnit Residence.
9.14. 060 Required and Implied Lease Terms for all New and Existing Units in MultiUnit
Residences.
(a) Every lease or other rental agreement for the occupancy of a Unit in a MultiUnit
Residence, entered into, renewed, or continued monthtomonth, effective January 1,
2018 shall include the following:
(1) A clause stating that Smoking is prohibited in the Unit, including
exclusiveuse areas such as balconies, porches, or patios.
a. A clause providing that it is a material breach of the lease or agreement for
the tenant, or any other Person subject to the control of the tenant or
present by invitation or permission of the tenant, to (i) Smoke in any
Common Area of the property other than a designated Smoking area; (ii)
Smoke in the Unit, or (iii) violate any law regulating Smoking anywhere on
the property.
b. A clause providing that it is a material breach of the agreement for tenant or
any other Person subject to the control of the tenant to violate any law
regulating Smoking while anywhere on the property. Such a clause might
state, “It is a material breach of this agreement for tenant or any other
person subject to the control of the tenant or present by invitation or
permission of the tenant to violate any law regulating smoking while
anywhere on the property.”
(2) A clear description of all areas on the property and in the buffer zone
where Smoking is allowed or prohibited.
(3) A clause expressly conveying thirdparty beneficiary status to all
occupants of the MultiUnit Residence as to the Smoking provisions of the lease or
other rental agreement. Such a clause shall provide that any tenant of the MultiUnit
Residence may sue another tenant/owner to enforce the Smoking provisions of the
agreement but that no tenant shall have the right to evict another tenant for a
breach of the Smoking provisions of the agreement.
(b) Whether or not a Landlord complies with subsection (a) above, the clauses
required by that subsection shall be implied and incorporated by law into every
agreement to which subsection (a) applies and shall become effective as of the
earliest possible date on which the Landlord could have made the insertions
pursuant to subsections (a).
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(c) This chapter shall not create additional liability for a Landlord to any Person for a
tenant’s breach of any Smoking provision in a lease or other rental agreement
for the occupancy of a Unit in a MultiUnit Residence if the Landlord has fully
complied with this Section.
(d) Failure to enforce any Smoking provision required by this chapter shall not affect
the right to enforce such provision in the future, nor shall a waiver of any breach
constitute a waiver of any subsequent breach or a waiver of the provision itself.
9.14.065 Other Requirements And Prohibitions.
(a) Every Landlord shall deliver the following, on or before July 1, 2017, to each Unit
of a MultiUnit Residence:
(1) a written notice of the new requirements prohibiting smoking in units and
common areas as stated in 9.14. 020
(b) As of July 1, 2017, every seller of a Unit in a MultiUnit Residence shall provide
prospective buyers with written notice clearly stating that: (1i) Smoking is
prohibited in Units, including any associated exclusiveuse Enclosed Area or
Unenclosed Area, such as, for example, a private balcony, porch, deck, or patio,
as of January 1, 2018; and
(2ii) Smoking is prohibited in all Common Areas, except for specifically
designated Smoking areas, as of January 1, 2018.
(dc) Clear and unambiguous “No Smoking” signs shall be posted in sufficient numbers
and locations in Common Areas where Smoking is prohibited by this chapter or
other law. Such signs shall be maintained by the Person or Persons with legal
control over the Common Areas. The absence of signs shall not be a defense to a
violation of any provision of this chapter.
9.14.060 Reserved.*
* Editor's Note: Former Section 9.14.060, Regulation of Smoking in the Workplace, previously
codified herein and containing portions of Ordinance Nos. 4056 and 4164 was repealed in its
entirety by Ordinance No. 4294.
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9.14.070 Exemptions.
The following places and workplaces are exempt from Section 9.14.020:
(a) Smoking at theatrical production sites is not prohibited by this subsection if the
theater general manager certifies that smoking is an essential part of the story and the use of a
fake, prop, or special effect cannot reasonably convey the idea of smoking in an effective way
to a reasonable member of the anticipated audience. This exception will not apply if minors are
performers within the production.
(b)Bingo games, consistent with prohibition on smoking contained in Labor Code
section 6404.5 and licensed pursuant to the Palo Alto Municipal Code, which do not permit
access by minors under eighteen years of age
(c)(b)A fully enclosed room in a hotel, motel, other transient lodging establishment
similar to a hotel, motel, or public convention center which is being used entirely for a private
function and which is not open to the general public, except while food or beverage functions
are taking place, including setup, service, and cleanup activities, or when the room is being
used for exhibit purposes, sixtyfive percent of the guest rooms in a hotel, motel, or similar
transient lodging establishment;
(d)(c)Tobacco stores with private smokers' lounges meeting the requirements of the
applicable portions of subdivision (d)(4) of Labor Code Section 6404.5.
9.14.80 Location of tobacco vending machines.
(a) No person shall locate, install, keep or maintain a tobacco vending machine
except in a place which under state law is not lawfully accessible to minors.
(b) This section shall become effective ninety days after its enactment. Any tobacco
vending machine not in conformance with this section upon its effective date shall be removed.
9.14.090 Display of tobacco products for sale.
No person shall display or offer tobacco products for sale except in an area, or from within an
enclosure, which physically precludes the removal of the tobacco products without the
assistance of the person authorizing such display or offer, or an employee of such person.
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9.14.100 Posting of signs required.
With the exception of service locations, wherever this ordinance prohibits smoking and the use
of electronic smoking devices, conspicuous signs shall be posted. Signs of similar size containing
the international "no smoking" symbol consisting of a pictorial representation of a burning
cigarette and electronic smoking device enclosed in a red circle with a red bar across it may be
used in addition to or in lieu of any signs required hereunder. Such signs shall be placed by the
owner, operator, manager, or other persons having control of such room, building, or other
place where smoking and the use of electronic smoking devices is prohibited. Signs placed at
each entrance of buildings in which smoking is totally prohibited shall be sufficient. The
absence of signs shall not be a defense to a violation of any provision of this chapter.
9.14.110 Enforcement.
Pursuant to Section 6 of Article IV of the Palo Alto City Charter, the city manager is hereby
granted authority to enforce the provisions of this chapter and Labor Code Section 6404.5.
9.14.120 Public nuisance.
Any violation of this chapter is a public nuisance and may be abated in accordance with Chapter
9.56 of the Palo Alto Municipal Code and/or Code of Civil Procedure Section 731.
9.14.130 Violations.
Violation of any provision of this chapter shall be punishable as provided in this code. Violations
shall be punishable by the following:
(1) An administrative citation and a fine not exceeding $250 for the first violation;
(2) An infraction and a fine not exceeding $300 for the second violation
(3) An infraction or a misdemeanor and a fine not exceeding $500 for each
additional violation within one year
SECTION 3. Severability. If any provision, clause, sentence or paragraph of this
ordinance, or the application to any person or circumstances, shall be held invalid, such
invalidity shall not affect the other provisions of this Ordinance which can be given effect
without the invalid provision or application and, to this end, the provisions of this Ordinance
are hereby declared to be severable.
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SECTION 4. The Council finds that this project is exempt from the provisions of the
California Environmental Quality Act (“CEQA”), pursuant to Section 15061 of the CEQA
Guidelines, because it can be seen with certainty that there is no possibility that the ordinance
will have a significant effect on the environment.
INTRODUCED: December 5, 2016
PASSED: January 9, 2017
AYES: DUBOIS, FILSETH, FINE, HOLMAN, KNISS, KOU, SCHARFF, TANAKA, WOLBACH
NOES:
ABSENT:
ABSTENTIONS:
ATTEST:
City Clerk Mayor
APPROVED AS TO FORM: APPROVED:
Principal City Attorney City Manager
Director of Public Works
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