Previous Code (before 7/22/2021)
16.82.060 Standards and criteria for certain conditionally permitted uses.
V. Retail sales of cannabis. Where this code conflicts with Title 16 and MAUCRSA design and development standards, the more restrictive standards shall apply. All applicable district requirements are met, together with the following requirements:
1. Regulatory Permits. Retail sales of cannabis uses must obtain and main tain all required state and local permits and licenses including the local regulatory permit to operate required under Chapter 7.200 of this code. Revocation of the state cannabis license or the local regulatory permit to operate under Chapter 7.200 of this code shall be grounds for revocation of the minor use permit for the retail sales of cannabis use. Valid and applicable state and local licenses and permits shall be publicly displayed at all times during hours of operation. Operations and location requirements must at all times comply with applicable regulations contained in Title 16 of the California Code of Regulations as those may be updated from time to time by the California Bureau of Cannabis Control.
2. Locational Limitation.
a. Any retail sales of cannabis use may not be located within a six hundred-foot radius of a school providing instruction in kindergarten or any grades one through twelve, day care center, or youth center as defined in Health and Safety Code Section 11353.1. The distance specified in this section shall be the horizontal distance measured in a straight line from the property line of the school or center to the closest property line of the lot on which the permittee is to be located without regard to intervening structures. b. Any applicant for a use permit to conduct retail sales of cannabis, whether for 'adult use' or medicinal purposes, must conduct all retail sales at one site.
3. Development and Operational Standards. Retail sales of cannabis uses shall comply with site development standards specified in the applicable zoning district. Such uses shall also comply with the following standards:
a. General:
i. No person under age eighteen (for medical retail sales of cannabis) or twenty - one (for recreational retail sales of cannabis) shall be allowed on the property. ii. No transactions outside, or partially outside of an enclosed building are permitted. No transactions which are performed through walk-up or drive- through service are allowed.
iii. The property shall not include patio or cafe seating, unless used exclusively for employees in an area not accessible to the general public. iv. No use, inhalation, smoking, eating, ingestion, or other consumption of cannabis in any form shall be allowed on the property, including the parking areas of the property.
v. No alcohol shall be consumed, made available, sold, offered for sale, given, distributed, traded, or otherwise provided to customers, employees, guests, visitors, or volunteers.
Created: 2021-04-08 16:57:09 [EST]
(Update 1-21)
vi. No retail sales of cannabis shall occur, in any form, to anyone between the hours of eight p.m. and nine a.m., except delivery.
vii. The property complies with all applicable California State Building Code provisions, the city's property maintenance ordinance and is maintained free of debris, litter and trash.
viii. All transactions, including but not limited to cash or in-kind contributions, reimbursement or compensation, shall be fully documented. ix. The owner will have a written security plan including procedures for verifying identification and age of purchasers. The plan must include a description of licensed and uniformed security guards who must be present on site during hours of operation, including their number, location and hours, as well as a theft prevention plan including locked exterior doors and windows during the times the business is closed. The licensed and uniformed security guard best practices shall comply with state law.
x. The point of sale software used to track retail sales must be acceptable to the finance director.
xi. Retail sellers of cannabis may only use one name to identify themselves in the minor use permit, the local regulatory permit, the state license and any other state or local permit that may be required.
b. Limitations on retail area in industrial zones. In the Intensive Use-Limited (IU-L), Intensive Use (IU), and Planned Development Industrial (PDI) Districts, no more than fifty percent of the floor area shall be devoted to retail sales.
c. Lighting:
i. Exterior perimeter lighting shall be in place prior to operation; ii. Exterior lighting shall be code compliant LED fixtures or high efficiency luminaries, and shall have an illumination intensity of between one and four foot candles;
iii. Lights shall be directed and shielded so as not to illuminate adjoining properties;
iv. Lights shall include housing to protect against breakage; v. Broken or burnt out lights shall be replaced within forty-eight hours; vi. Transitional lighting shall be incorporated in exterior areas providing access to and from buildings or uses within a site; and
vii. Trees and shrubs shall not interfere with the distribution of lighting as required by this section.
d. Signs:
i. A sign shall be posted on the door or in view of the entrance stating that no person under the age of eighteen (for medical retail sales of cannabis) or twenty-one (for recreational Retail sales of cannabis) is allowed on site. ii. A sign shall be posted stating that the use or consumption of cannabis or cannabis products on or near the premises is prohibited. iii. A sign shall be posted stating loitering on or near the premises is prohibited.
Created: 2021-04-08 16:57:09 [EST]
(Update 1-21)
iv. A sign shall be posted outside the facility in full public view containing city contact information for both emergency situations and information regarding public concern about operations.
v. Other requirements as prescribed in Chapter 16.64.
e. Windows. In order to promote a strong pedestrian connection for retail safety, visibility, crime prevention through environmental design and a positive active environment, support natural lighting, and enhance curb appeal and value of retail space:
i. No display of cannabis or cannabis product shall be permitted within ten feet of the window.
ii. Storefronts must maintain transparent windows that allow visibility into the store, with a minimum of sixty percent transparency on the street frontage at the ground level and allow visibility into the building at a minimum of four feet above the ground.
f. Screening and landscaping:
i. Shrubs located next to pedestrian walkways and other vulnerable areas as determined by the planning manager or his or her designee shall not exceed three feet in height at maturity.
ii. Trees shall be pruned up to six feet above ground.
iii. Trees and shrubs shall be pruned back from windows, doors and walkways. iv. Decorative stone, brick, and other masonry material shall be grouted to prevent removal by hand.
v. Entrances to the site and parking lots shall be defined with landscaping or entry features.
vi. Outdoor waste and recycle bins shall be contained within a locked structure to prevent unauthorized entry.
vii. Other requirements as prescribed in Chapter 16.70. g. Noise:
i. The use of generators is prohibited, except as short-term temporary emergency back-up systems; and
ii. Other requirements as prescribed in Section 16.72.030 shall apply. h. Odor control: A sufficient odor-absorbing ventilation and exhaust system shall be installed and operated to ensure that odor generated by the use is not detected outside the property, anywhere on adjacent properties or public rights -of-way, or within any other separate use or unit located within the same building as the retail sales of cannabis use. i. Maintenance:
1. Property shall be maintained free of debris, litter and trash; and
2. The use shall comply with Chapter 7.54, Property Maintenance. j. Other performance standards: The use shall comply with all requirements prescribed in Chapter 16.72.
Created: 2021-04-08 16:57:09 [EST]
(Update 1-21)
(Ord. 1552 N.C.(2d) § 4 (part), 2005: Ord. 1524 N.C.(2d) § 8, 2004: Ord. 1368 N.C.(2d) §§ 5 (part), 18, 1996: Ord. 1360 N.C.(2d) §§ 2, 3, 1996: Ord. 1318 N.C.(2d) § 2 (part), 1994: Ord. 1283 N.C.(2d) § 16, 1993: Ord. 1029 N.C.(2d) § 15, 1989: Ord. 906 N.C.(2d) § 1, 1986: Ord. 898 N.C.(2d) § 3, 1986: Ord. 693 N.C.(2d) § 2, 1983: Ord. 649 N.C.(2d) § 23, 1982: Ord. 645 N.C.(2d) § 3, 1982; Ord. 633 N.C.(2d) § 4, 1982: Ord. 627 N.C.(2d) § 3, 1981: Ord. 595 N.C.(2d) § 18, 1981: Ord. 590 N.C.(2d) § 2; 1981: Ord. 578 N.C.(2d) § 2, 1980: Ord. 558 N.C.(2d) § 2 (part), 1980.) ( Ord. No. 1717 N.C.(2d) , § 1, 12-15-2015; Ord. No. 1680 N.C.(2d), § 4, 8-27-2013; Ord. No. 1667 N.C.(2d), § 5, 7- 10-2012; Ord. No. 1630 N.C.(2d), § 11, 12-8-2009; Ord. No. 1761 N.C.(2d), § 9, 6-13-2017; Ord. No. 1810 N.C.(2d) , § 16, 12-18-2018)
1 Jonathan Atkinson
From: Christina Ratcliffe
Sent: Friday, June 25, 2021 5:58 PM
To: Chuck Wesley; Martin Wesley; Robin Lee
Cc: Anne Cardwell; Veronica Nebb; Gillian Hayes; Jonathan Atkinson Subject: Re: VTown Farms
Chuck et all,
Mayor and Council (bcc'd)
Jonathan and I have gone over the plans with your architect on a Zoom meeting. I have reviewed the Planning Commission hearing and the City Council hearings on this issue. I have spoken to the Interim Deputy City Manager and the City Attorney and reviewed the Code requirements with them. City Staff concurs that the minimum 60% window requirement for the storefront on the street frontage is measured as a percentage of the wall area of the storefront in relation to the window area.
"Storefronts must maintain transparent windows that allow visibility into the store, with a minimum of sixty percent transparency on the street frontage at the ground level and allow visibility into the building at a minimum of four feet above the ground."
Your proposed definition of measuring the windows and storefront and taking a linear percentage does not meet the intent of the code. Under that definition, windows could be six inches high, or less. The Code states that the minimum 60% of storefront be windows "In order to promote a strong pedestrian connection for retail safety, visibility, crime prevention through environmental design and a positive active environment, support natural lighting, and enhance curb appeal and value of retail space".
This 60% of wall area is the criteria that was given to your team early on and consistently, as well as other new retail cannabis locations. It was supported and approved by the Planning Commission and the City Council. The current drawings show ~30% windows on the retail storefront. Please revise the drawings to reflect the required 60% transparency. If you do not wish to do this, you may apply for a Variance, which would involve a public hearing.
I also understand that due to the pandemic windows are taking an unusually long time from order to delivery (up to 16 weeks) Since your project was delayed by the appeal, and the City’s urgency ordinance is still in place, I would be willing to grant a Temporary Certificate of Occupancy, and allow you 16 weeks to install the required windows, provided all other Conditions of Approval and Code requirements are met.
If the 16 week extension is not met, your Use Permit and City cannabis license would be subject to revocation.
I believe this allows you the time you need to comply with the code and your conditions of approval, while ensuring that those requirements and conditions are met in a timely manner.
Let me know how you want to proceed.
Christina
2 Christina Ratcliffe, AICP
Interim Planning and Development Services Director
City of Vallejo | Planning & Development Services Dept. (707) 648‐4382| [email protected]
****COVID‐19 UPDATE: As COVID‐19 continues to evolve, the City of Vallejo is doing its part to limit the spread of the virus. Consistent with State and Federal guidance, and to limit potential exposure for employees and customers, City Hall and the Central Permit Center located at 555 Santa Clara Street will be open to the public for limited services between the hours of 9am to 3pm Monday through Thursday (closed Friday).
During City Hall non‐open to the public hours, routine questions will be responded to via phone Central Permit Center 707‐648‐4328 or email [email protected] and applications may be submitted using one of the following options (payments must be sent using options 1 or 3):
1. Via drop box outside City Hall (555 Santa Clara Street, Vallejo)
2. Via e‐mail to: [email protected], [email protected], or [email protected] (Central Permit Center)
3. Via regular mail to: Building or Planning Division, 555 Santa Clara St, Vallejo, CA, 94590
4. Via online: http://www.ci.vallejo.ca.us/online_services/central_permit_center
We recommend that you please call 707‐648‐4328 to make an appointment if you need to speak with a specific staff person.
If you need COVID support, we encourage you go to our website https://www.cityofvallejo.net/NCOV or for COVID urgent issues you may call the City's COVID hotline at (707) 648‐8605.
We value your business and your safety, and thank you for your flexibility and patience while we make necessary changes to better serve you. Thank you for being our customer!
From: [email protected] <[email protected]>
Sent: Friday, June 25, 2021 2:54 PM
To: Jonathan Atkinson <[email protected]>; Christina Ratcliffe <[email protected]> Cc: 'Chuck Wesley' <[email protected]>; 'Work' <[email protected]> Subject: VTown Farms
Jonathon/Christina,
Thank you for reviewing the transparency issue relative to VTown’s exterior elevation. 3 To recap, the elevations submitted (updated elevation attached for clarity) represents a solution designed to meet the intent of the code by providing the following:
1. 60% transparency along the entire length of the retail dispensary
2. 29% of the surface area of the exterior elevation
3. A structurally feasible alternative to rebuilding the entire storefront
Our concern is that the additional glazing would put the store operations at greater risk for crime, and at greater expense, without adding value in terms of visibility, or even daylight, given the soffited overhang running the length of the entry. We understand that your interpretation of this code requires additional glazing; but we’d like you to consider that it actually runs counter to the intent of the code.
Vallejo Zoning Code 16.82.060 Ve:
e. Windows. In order to promote a strong pedestrian connection for retail safety, visibility, crime prevention through environmental design and a positive active environment, support natural lighting, and enhance curb appeal and value of retail space:
i. No display of cannabis or cannabis product shall be permitted within ten feet of the window. ii. Storefronts must maintain transparent windows that allow visibility into the store, with a minimum of sixty percent transparency on the street frontage at the ground level and allow visibility into the building at a minimum of four feet above the ground.
We appreciate your consideration.
Robin Tibbetts
Studio Benavente Architects Inc.
580 Lennon Lane
Walnut Creek, CA 94598
925‐934‐7778
****************** This is an EXTERNAL EMAIL. Stop and think before clicking links or opening attachments. *******************
582 Market Street, Suite 1402 | San Francisco, CA 94104 | T 415-466-2997 | www.BASEDesignInc.com
September 9, 2021
City of Vallejo
Planning & Development Services Department
555 Santa Clara Street #3
Vallejo, CA
94590
RE: V-Town Farms
5184 Sonoma Boulevard
Vallejo, CA 94589
BASE Design Project No. 21087
To Whom it May Concern,
BASE Design has performed an assessment of the existing building at 5184 Sonoma Boulevard in Vallejo, CA for V-Town Farms, which is a new dispensary at this location. To comply with the City of Vall ejo Planning Department, V-Town Farm’s build-out includes extensive openings in the existing exterior wall to allow for visibility into the dispensary space. The exterior walls of this building are constructed of concrete masonry units (CMU).
The building at 5184 Sonoma Boulevard is a single-story structure. The building’s gravity load supporting system is open web joists at the roof supported by glulam beams and by the exterior CMU walls. The existing seismic force resisting s ystem is entirely comprised of the exterior CMU walls. The plywood diaphragm at the roof transfers seismic forces to these walls.
Because the exterior CMU walls are the seismic-force resisting system, installing new openings in these walls weakens the building’s ability to resist loads during an earthquake. Not only do these walls support seismic loads from the roof, which are parallel to the plane of the wall, but they a lso must resist seismic loads perpendicular to the plane o f the wall and created by the heavy weight of concrete masonry walls themselves.
All new openings in the exterior CMU walls need to be analy zed for both their effect on the building ’s overall seismic-force resisting capacity and for their lo calized effect on the wall’s ability to resist seismic loads due to its own weight.
Based on our analysis of the existing CMU walls and the new proposed openings shown in the architectural drawings prepared by Studio Benavente Architects Incorporated dated August 9, 2021, the existing walls require strengthening. Steel channels are proposed to assist in supporting out-of-plane seismic loads due to the weight of the CMU walls around new openings. Additionally, new jamb reinforcing steel is required to ensure that the portions of CMU walls that remain have adequate capacity to resist seismic loads from the building a s a w hole. With the current proposed new opening s, the remaining portions of CMU wall have just enough capacity to resist seismic loads from the building as a whole. Additiona l openings will require additional, more invasive strengthening of the portions of the CMU walls to remain . This strengthening would likely involve adding shotcrete to the face of the CMU walls and strengthening the existing roof.
Furthermore, due to a lack of as -built drawings for the existing building, BASE Design does not advise installing new openings within the 16 feet of wall between the two existing doors. The configuration of the RE: V-Town Farms Storefront
September 9, 2021 Page 2 of 2
582 Market Street, Suite 1402 | San Francisco, CA 94104 | T 415-466-2997 | www.BASEdesigninc.com
reinforcing steel around the existing openings is not known and cutting into the portion of wall between these openings would further weaken the building.
Please do not hesitate to contact me if you have any questions.
Very truly yours,
BASE Design
Kathryn Briggs, SE 5732
Principal
REG
ISTERED
PROFESSIONAL
ENGINEER
KATHRY BR IGGS
RT
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EAT
TS
FLCA IF
C T UU
ORNIA
S AL
N
NO. 5732
Exp. 12-31-22
From: Chuck Wesley
To: Robert H. McConnell; Rozzana Verder-Aliga; Pippin Dew; Mina Loera-Diaz; Katy Miessner; Tina Arriola Cc: Christina Ratcliffe
Subject: V-Town Farms - May 10th City Council Meeting
Date: Monday, May 2, 2022 7:55:46 AM
Mayor, Vice Mayor & Councilmembers,
Respectfully... On May 10th, the City Council will hear our Request for two changes to the existing Use Permit Conditions for V-Town Farms. Prior to the meeting, you will receive our packet of materials from Ms. Ratcliffe.
We believe you will find our requests to be worthy.
One of the requested changes pertains to the $600,000 annual donation requirement. We are requesting that it be changed to 1% of Revenue. A key point we will make is that this was presented and agreed to in
the context of a $60 Million revenue business. Presently, we are only a $10 Million revenue business with no apparent chance of achieving even $20 Million. $60 Million is no longer realistic.
Prior to the meeting of the 10th, we believe it is important that you have an opportunity to confirm our assertion that the $600K was presented and agreed in the context of V-Town Farms being a $60 Million business. And you can do this, as follows...
The City Council Meeting of May 25th can be viewed at... https://vallejoca.civicclerk.com/Web/Player.aspx?id=1378&key=-1&mod=-1&mk=-1&nov=0 At 4:05:25 of the City Council Meeting on May 25th, Councilmember Dew raised the matter for the first time and, in the context of V-Town Farms producing "double" the revenues of CoCo Farms in Antioch, asked if we could agree to donate $600K per year. (CoCo Farms generates $30 Million per year in revenue.)
I agreed. Again... in the context of V-Town Farms producing twice the revenue of CoCo Farms.
The City Council Meeting of June 7th can be viewed at... https://vallejoca.civicclerk.com/Web/Player.aspx?id=1660&key=-1&mod=-1&mk=-1&nov=0 At 37:05 of the City Council Meeting on June 7th, I requested that the $600,000 requirement be changed to 1%. And again clarified that the $600,000 was one percent of the planned $60 Million in annual revenue for V-Town Farms.
The requested edit was denied.
Thank you for your time and consideration.
Regards,
Chuck
Charles M. ("Chuck") Wesley
Managing Member
480-225-1167 mobile
Kolaboration Vallejo LLC
****************** This is an EXTERNAL EMAIL. Stop and think before clicking links or opening attachments. *******************
V-Town Farms City Council Presentation
May 10, 2022
● Recap of where the business is at…
○ Monthly Retail revenues are approximately $700K.
○ Monthly Wholesale revenue is approximately $300K.
○ Monthly cannabis fees to the City are approximately $50K ○ 47 Employees… 44% are Vallejo residents (55% of hires have been Vallejo residents) ■ 14 in Manufacturing & Packaging
■ 33 in Retail
● Pertaining to the 800 Number for Neighborhood complaints… ○ Nine months of operation… not one neighborhood complaint ○ Two customer complaints pertaining to service.
● Pertaining to the Community Outreach Program…
○ In as much as there have been no neighborhood complaints, this may be moot. ● Pertaining to Donations to Non-Profits…
○ Preliminary List is attached.
○ Solano AIDS Coalition is the only beneficiary to-date.
V-Town Farms City Council Presentation
May 10, 2022
● Pertaining to the 60% transparency requirement…
○ This requirement is not in the code.
○ Meeting it will damage the aesthetics of the building; not improve them. And it will surely diminish Safety & Security.
○ If we were applying today, it would be with a minor use permit and we would not be required to meet this requirement.
○ The building as it now exists is both conforming and legal . ● BASE Structural Engineers…
○ Two approaches to achieving 60%
○ Approach #1… $329,000 and closed for 6 weeks (Jim Garton Construction) ○ Approach #2… $278,000 and closed for 6 weeks (Jim Garton Construction) ○ Neither approach is affordable for the company.
● 60% Plan B…
○ Reconfigure the Retail floor from 9,000sf to 1,500sf and add one 4 x 10 window in the front.
○ The reduced Retail area will reduce the Distribution and Manufacturing areas. ○ Distribution would be resized from 1,500sf to 450sf. Manufacturing from 500sf to 150sf. ○ The downsized areas will not support current staffing.
V-Town Farms City Council Presentation
May 10, 2022
● Pertaining to the $600,000 Donation requirement…
○ We did not offer this. We agreed to it in the context of a $60 Million revenue business. ■ At 4:05:25 of the City Council Meeting on May 25th, Councilmember Dew raised the matter for the first time and, in the context of V-Town Farms producing "double" the revenues of CoCo Farms in Antioch, asked if we could agree to donate $600K per year. ■ I agreed. Again... in the context of V-Town Farms producing twice the revenue of CoCo Farms.
■ At 37:05 of the City Council Meeting on June 7th, I requested that the $600,000 requirement be changed to 1%. And again clarified that the $600,000 was one percent of the planned $60 Million in annual revenue for V-Town Farms.
■ The requested edit was denied.
○ So again…
■ We did not "offer" it.
■ We agreed to it in the context of V-Town Farms doubling the revenues of CoCo Farms.
Effectively, $60 Million in annual revenues.
■ We requested that the $600,000 be changed to 1%, and the request was denied. ○ No other cannabis company is required to make donations. ○ We are offering 1% of Revenue. This would be approximately $100,000 this year. ○ If at some point we ARE a $60 Million business, then the donation would be $600,000; which is what was contemplated during the City Council meetings.
ACTION ITEM 9.D.
DATE: May 10, 2022
TO: Mayor and Members of the City Council
FROM: Veronica A.F. Nebb, City Attorney
SUBJECT: INTRODUCTION AND FIRST READING OF AN ORDINANCE AMENDING CHAPTER 7.68
OF THE VALLEJO MUNICIPAL CODE RELATED TO THE PROHIBITION OF SMOKING
RECOMMENDATION
Introduce an ordinance amending Chapter 7.68 of the Vallejo Municipal Code, Regulation of Smoking in Public Places and Work Places, to prohibit smoking in and around multi-unit residences and other publically accessible places and to update outdated provisions of the Chapter to conform with State law.
REASONS FOR RECOMMENDATION
The proposed amendment to the ordinance regulating smoking will reduce exposure to secondhand smoke in multi-unit residences and other publically accessible places and bring the City’s regulations into compliance with State law.
BACKGROUND AND DISCUSSION
In 2021, several citizen groups and residents requested that the City Council consider amending the City's current Smoking Ordinance (Chapter 7.68 of the Municipal Code) to include additional measures to protect the public from secondhand smoke. In particular, requests for consideration of regulations specific to multi-unit housing were received by the City.
The health risks of tobacco use and exposure to secondhand smoke are well documented. Approximately 40,000 Californians die each year from smoking-related disease, making tobacco use the number one cause of preventable death, killing more people than alcohol, AIDS, car crashes, illegal drugs, murders, and suicides combined. The U.S. Surgeon General has concluded that there is no safe level of exposure to secondhand smoke and the California Air Resources Board has classified secondhand smoke as a toxic air contaminant.
Secondhand smoke in multi-unit housing drifts through doorways, cracks in walls, electrical lines, ventilation systems and plumbing. The Surgeon General has stated that eliminating smoking in indoor spaces is the only way to fully protect nonsmokers from secondhand smoke exposure, and that separating smokers from nonsmokers, cleaning the air, and ventilating buildings cannot completely prevent secondhand smoke exposure.
The proposed amendments to Chapter 17.68 of the Vallejo Municipal Code are designed to reduce exposure to secondhand smoke in multi-unit residences which house many of the city’s most vulnerable residents.
Secondhand smoke exposure in multi-unit housing contributes to tobacco-related health inequities. For example, in California, when compared with adults who live in single-family homes, adults who live in multi-unit housing are more likely to be people of color; lower income or below the poverty line; and/or uninsured.
Additionally, secondhand smoke in multi-unit housing is a significant threat to the health and safety of California children. About a quarter of those who live in multi-unit housing (25.2%) are under the age of 18 and the home is the primary source of secondhand smoke for children.
The COVID-19 pandemic has further highlighted the risks of smoking. Smoking doubles the risk of developing
Date: May 10, 2022
Subject: INTRODUCTION AND FIRST READING OF AN ORDINANCE AMENDING CHAPTER
7.68 OF THE VALLEJO MUNICIPAL CODE RELATED TO THE PROHIBITION OF
SMOKING
respiratory infections and doubles the risk of getting sicker from COVID-19. Additionally, the pandemic itself has resulted in increased time at home for most Californians over the last 2 years, thereby increasing the number of hours per day of potential exposure to second-hand smoke.
The City’s existing Ordinance does not adequately address the growing concerns about the effects of secondhand smoke and contains many outdated provisions inconsistent with State law. The proposed ordinance declares secondhand smoke a nuisance and enables a private citizen to bring a legal action to abate secondhand smoke as a nuisance.
Key provisions of the proposed revised ordinance are described below:
Ensuring all Places of Employment are Smoke-Free
The State smoke-free workplace law amended California Labor Code Section 6404.5 to ban smoking in most enclosed places of employment, but allowed for some exceptions, such as owner-operated facilities (such as bars under sole proprietorship). The proposed ordinance extends the smoking ban to include all “places of employment,” both indoors and outdoors, that an employee, volunteer, contractor, or member of the public can enter, regardless of sole proprietorship. Private smoking lounges within retail tobacco shops are excluded.
Establishing a Smoke-Free “Reasonable Distance” from Public Places Assembly Bill 846 went into effect on January 1, 2004, to amend California Government Code sections 7596 – 7598 and prohibit smoking within 20 feet (defined as a “reasonable distance”) of main entrances, exits, and operable windows at all public buildings owned, occupied, or leased and occupied by State, County, or City governments. The proposed ordinance expands the concept to prohibit smoking within a reasonable distance of any enclosed area (not just public buildings) and unenclosed areas within which smoking is prohibited.
Restricting Outdoor Smoking
Health and Safety Code Section 104495 already bans smoking within 25 feet of tot- lots and playgrounds. The proposed ordinance prohibits smoking in outdoor public places (places open to the general public), including, but not limited to, outdoor dining areas; public and private parks; sidewalks; and at public events. Service areas including ATM’s, kiosks, bus stops and shelters, and mobile vendor lines, or cab stands are also protected from smoking. The ordinance permits designated unenclosed smoking areas in unenclosed outdoor public areas (such as in commercial developments) provided the designated area meets specified criteria.
Restricting Smoking in Multi-Unit Residences
A multi-unit residence is defined as any attached housing, including apartment, co-op, condominium, townhome, duple, triplex, senior and assisted living facilities and long-term health facilities that contain two (2) or more dwelling units, excluding single-family detached homes (without attached ADU) and mobilehomes. The proposed ordinance prohibits smoking in all units of a multi-unit residence and common areas accessible to and usable by residents and/or members of the public (i.e., halls and paths, lobbies, laundry rooms, community rooms, outdoor eating areas, play areas and swimming pools). The ordinance does allow for the designation of an outdoor “smoking area” to accommodate smokers, provided certain conditions are met. The following types of housing are not considered a multi-unit residence: a single-family home and mobile homes in a mobile home park.
Enforcement
Date: May 10, 2022
Subject: INTRODUCTION AND FIRST READING OF AN ORDINANCE AMENDING CHAPTER
7.68 OF THE VALLEJO MUNICIPAL CODE RELATED TO THE PROHIBITION OF
SMOKING
The proposed ordinance specifies that enforcement of smoking prohibitions in enclosed areas, places of employment, and certain unenclosed areas shall be handled by any peace officer or code enforcement official. Enforcement of smoking prohibitions in multi-unit residences and commercial multi unit property is the responsibility of the landlord or other party responsible for setting rules (e.g., property manager, homeowners’ association, condominium board, etc.). Private citizens (including employees and tenants) may bring legal action to enforce the regulations.
Landlords and others who are responsible for setting rules in multi-unit properties (e.g., property managers, homeowners’ associations, condominium boards, etc.) will have the following responsibilities under the ordinance:
• Providing notice to tenants, prospective tenants, buyers and residents of the prohibition of smoking requirements by the effective date of the ordinance; and
• Posting “No Smoking” signs in areas where smoking is prohibited by the effective date of the ordinance.
Additionally, landlords must include “no smoking” requirements in any occupancy agreements entered into, renewed, or continued beginning 60 days after the effective date of the ordinance.
FISCAL IMPACT
There is no fiscal impact with approval of this item
ENVIRONMENTAL REVIEW
The proposed ordinance is not subject to review under the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines section 15061 (b)(3) because there is no possibility the activity in question may have a significant effect on the environment.
ATTACHMENTS
1. Ordinance Amending Chapter 7.68 Re_Prohibition of Smoking CAO Stamp
CONTACT
Veronica Nebb, City Attorney (707) 648-4545
[email protected]
1 ORDINANCE NO. ______
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF VALLEJO AMENDING CHAPTER 7.68 OF THE VALLEJO MUNICIPAL CODE RELATED TO THE
PROHIBITION OF SMOKING
THE CITY COUNCIL OF THE CITY OF VALLEJO DOES ORDAIN AS FOLLOWS:
SECTION 1. Recitals.
A. The World Health Organization (WHO) estimates that tobacco kills up to half of its users, amounting to more than 7 million deaths each year worldwide, including nearly half a million people who die prematurely from smoking in the United States alone.
B. The U.S. Environmental Protection Agency (EPA) has classified environmental tobacco smoke (ETS) as a group A carcinogen, a category reserved for toxic substances known to cause cancer and for which there is no safe level of exposure.
C. Numerous scientific and medical studies have found that ETS is a major contributor of indoor air pollution, and a significant health hazard to nonsmokers. ETS is the third leading cause of preventable disease and death in the U.S. Exposure to ETS is responsible for 87% of lung cancer deaths, 32% of coronary artery disease deaths, and 79% of all chronic obstructive pulmonary disease cases in the U.S.
D. ETS purposes a serious health risk for children and infants. Exposure to ETS by children and infants is responsible for: 1) serious respiratory ailments, such as bronchitis and pneumonia; 2) onset and exacerbation of asthmatic symptoms; 3) increased frequency of cough and wheezing; 4) reduced lung function and lung growth; and 5) increased rates of chronic ear infections.
E. The U.S. EPA estimates that exposure to ETS in the workplace is about four times that of typical household exposure. Tobacco smoke in the workplace is responsible for increased health risks to workers, higher employer costs for fire and health insurance premiums, and an increased threat of employer legal liability.
F. The U.S. Surgeon General has found that nicotine in tobacco products is as addictive as cocaine and heroin. The majority of those Americans became addicted to nicotine in tobacco
2 products as adolescents before the age of legal consent. Recent scientific studies have found that tobacco companies target children and teens with cigarette advertising and promotion.
G. WHEREAS, significant disparities in tobacco use exist in California which create barriers to health equity, as evidenced by the following:
African American (20%), Asian (15.6%), Hispanic (15.0%), and American Indian/Alaska Native (36.2%) males all report a higher smoking prevalence than White, Non-Hispanic males (14.8%).
More than half of low socioeconomic status American Indian/Alaska Native Californians smoke, the highest smoking prevalence among all populations; Smoking prevalence increased among high school–age African American youth from 2002 to 2012 while rates decreased for high school–age youth overall, and for all other race/ethnicity groups.
Californians with the highest levels of educational attainment and annual household income have the lowest smoking rates.
Those who identify as bisexual, compared with heterosexual, gay/lesbian/homosexual, not sexual, celibate, or other, smoke at rates disproportional to their representation in California.
Those who rent their homes, compared with those who own their homes or have other arrangements, smoke at rates disproportional to their representation in California. A 2014 report noted that those who reported they likely experienced psychological distress in the preceding year smoked at rates disproportional to their representation in California.
H. WHEREAS, secondhand smoke has repeatedly been identified as a health hazard, as evidenced by the following:
The U.S. Surgeon General concluded that there is no risk-free level of exposure to secondhand smoke.
The California Air Resources Board categorized secondhand smoke as a toxic air contaminant, along with most toxic automotive and industrial air pollutants, for which there is no safe level of exposure.
The California Environmental Protection Agency (EPA) included secondhand smoke on the Proposition 65 list of chemicals known to the state of California to cause cancer, birth defects, and other reproductive harm.
The American Society of Heating, Refrigerating, and Air Conditioning Engineers (ASHRAE) recommends that multiunit housing be free from secondhand smoke, cannabis smoke, and aerosol from electronic smoking devices. The American Heart Association has recommended all adults and children be protected from smoking in multiunit housing.
3 I. WHEREAS, exposure to secondhand smoke causes death and disease, as evidenced by the following:
Since 1964, approximately 2.5 million nonsmokers have died from health problems caused by exposure to secondhand smoke.
Secondhand smoke was responsible for an estimated 34,000 heart disease–related and 7,300 lung cancer–related deaths among adult nonsmokers each year during 2005-2009 in the United States.
Exposure to secondhand smoke increases the risk of coronary heart disease by about 25% to 30%i and increases the risk of stroke by 20% to 30%. Secondhand smoke kills more than 400 infants every year.
J. WHEREAS, electronic smoking device aerosol may be considered a health hazard, as evidenced by the following:
Research has found electronic smoking device aerosol to contain at least ten chemicals known to the State of California to cause cancer, birth defects, or other reproductive harm, such as formaldehyde, acetaldehyde, lead, nickel, and toluene. Electronic smoking device aerosol is not harmless water vapor as it contains varying concentrations of particles and chemicals with some studies finding particle sizes and nicotine concentrations similar to, or even exceeding, conventional cigarette smoke. Evidence continues to build that exposure to electronic smoking device aerosol, including secondhand exposure, has immediate impacts on the human respiratory and cardiovascular systems, and thus likely poses a risk to human health. Given the increasing prevalence of electronic smoking device use, especially among youth and young adults, widespread nicotine exposure resulting in addiction and other harmful consequences is a serious concern.
Indoor air experts and health authorities, including the U.S. Surgeon General, American Society of Heating Refrigerating and Air-Conditioning Engineers, and State of California’s Tobacco Education and Research Oversight Committee (TEROC), all support inclusion of electronic smoking devices in regulations of smoking and other tobacco product use.
SECTION 2. Chapter 7.68 of the Vallejo Municipal Code is hereby repealed in its entirety.
SECTION 3. There is hereby added a new Chapter 7.68 to the Vallejo Municipal Code which is adopted to read as follows:
4 Chapter 7.68
PROHIBITION OF SMOKING
7.68.010 Legislative findings and purposes.
7.68.020 Definitions.
7.68.030 Prohibition of smoking in City-owned vehicles and facilities.
7.68.040 Smoking restrictions in multi-unit residences.
7.68.050 Prohibition of smoking in enclosed areas.
7.68.060 Prohibition of smoking in unenclosed areas.
7.68.070 Smoking optional areas.
7.68.080 Reasonable smoking distance required.
7.68.090 Nonsmoking buffer zones.
7.68.100 Notice and posting of signs.
7.68.110 Required and implied lease terms.
7.68.120 Nuisance.
7.68.130 Other requirements and prohibitions.
7.68.140 Penalties and enforcement.
7.68.150 Other applicable laws.
7.68.010 – Findings and purposes.
The City council of the City of Vallejo finds and declares that the purposes of this chapter are:
A. To protect the public health, safety and general welfare; and B. To guarantee the right of nonsmokers, especially children, to breathe smoke-free air, and to recognize that the need to breathe smoke-free air has priority over the desire to smoke; and C. To reduce addiction to tobacco products by children and teenagers.
The City Council further finds it is within its basic police power to implement and enforce the provisions of this chapter.
7.68.020 – 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 multi-unit residence, but does not include property containing detached single-family homes.
B. "Business" means any sole proprietorship, joint venture, corporation, or other business entity formed for profit-making purposes, including retail establishments where goods or services are sold, offered for sale, performed or delivered.
C. “Cannabis” has the meaning set forth in California Business and Professions Code Section 26001(f), as that section may be amended from time to time. 5 D. “Common area” means any enclosed or unenclosed area of a multi-unit residence or multi- unit non-residential premises (such as hotels, motels, mobile home parks, shopping centers, and office buildings) accessible to and usable by more than one resident, tenant, owner, employee, employer, or member of the public, including but not limited to areas such as halls and paths, lobbies, elevators, stairs, laundry rooms, community rooms, cooking areas, dining areas, gym facilities, swimming pools, grassy or landscaped areas, walking/biking paths, seating areas, garages, and parking lots.
E. “Dining area” means any area, including streets and sidewalks, that is available to or customarily used by the public or an employee, and that is designed, established, or regularly used for consuming food or drink, including but not limited to restaurants.
F. “Electronic smoking device” means any device that may be used to deliver any aerosolized or vaporized substance to the person inhaling from the device, including, but not limited to, an e- cigarette, e-cigar, e-pipe, vape pen, or e-hookah.
G. "Employee" means any person who is employed or retained as an independent contractor by any employer in consideration for direct or indirect monetary wages or profit, and any person who volunteers his or her services for an employer.
H. “Employer” means any person, partnership, corporation or other business or nonprofit entity that retains the service of one or more employees.
I. "Enclosed area" means an area in which outside air cannot circulate freely to all parts of the area, and includes an area that has:
1. Any type of overhead cover, whether or not that cover includes vents or other openings, and at least three walls or other vertical constraint to airflow, including, but not limited to, vegetation of any height, whether or not those boundaries include vents or other openings; or
2. Four walls or other vertical constraints to airflow, including, but not limited to, vegetation, that exceed six feet in height, whether or not those boundaries include vents or other openings.
J. “Homeowners’ association” or “HOA” means an organization or entity established for the purpose of managing or maintaining a common interest development. A homeowners' association shall also mean "association" as defined in California Civil Code Section 4080, or any successor legislation.
K.“Landlord” means any person or agent of a person who owns real property leased or rented or any person who manages premises including property managers, homeowners’ associations, commercial property associations, condominium boards, etc., except that “landlord” does not include sublessors.
6 L.“Multi-unit residence” means property containing two or more units that share a wall, including, but not limited to, apartments, condominiums, townhomes, duplexes, triplexes, quadruplexes, a single-family residence with a junior accessory dwelling unit or attached accessory dwelling unit, senior and assisted living facilities, drug and alcohol rehabilitation facilities, and long-term health care facilities, hospitals, a room in a single room occupancy (“SRO”) facility. Includes all personal dwelling space, even where lacking cooking facilities or private plumbing facilities, and includes any associated exclusive use enclosed area or unenclosed area, such as, for example, a private balcony, porch, deck, or patio. Multi-unit residences do not include the following:
1. A mobile home;
2. A single-family home, except if used as a health care facility subject to licensing requirements; and
3. A single-family home with a detached accessory dwelling unit permitted pursuant to California Government Code Sections 65852.1, 65852.150, 65852.2, or an ordinance of the City adopted pursuant to those sections, except if the single-family home or accessory dwelling unit is used as a health care facility subject to licensing requirements.
4. A single-family home with a junior or attached accessory dwelling unit where neither unit is rented or leased to an individual or entity other than the occupant of the other unit or a member of the immediate family of the occupant of the other unit.
M. "Nonprofit entity" means any entity that meets the requirements of California Corporations Code Section 5003 as well as any corporation, unincorporated association, or other entity created for charitable, religious, philanthropic, educational, political, social, or similar purposes, the net proceeds of which are committed to the promotion of the objectives or purposes of the entity and not to private gain. A government agency is not a nonprofit entity within the meaning of this chapter.
N. “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. A person with legal control over the area.
O. "Person" means any individual, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee, or any other legal entity.
P. “Premises” means a piece of land and any improvements thereon 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.
Q. “Private smokers’ lounge” means any enclosed area in or attached to a retail tobacco shop that is dedicated to the use of tobacco products, including, but not limited to, cigars and pipes. 7 R. "Public place" means any place, publicly or privately owned, which is open to the public regardless of any fee or age requirement.
S. “Reasonable Distance” means a distance of at least 20 feet in any direction from an area in which smoking is prohibited.
T. "Recreational area" means any area including streets and sidewalks publicly or privately owned and open to the public for recreational purposes, regardless of any fee or age requirement.
The term “recreational area” includes, but is not limited to, parks, picnic areas, playgrounds, sports fields, golf courses, walking paths, gardens, hiking trails, bike paths, riding trails, swimming pools, amusement parks, marinas, and beaches.
U. "Restaurant" means any coffee shop, cafeteria, sandwich stand, private and public-school cafeteria, and any other eating establishment which gives or offers for sale food to the public, guests, or employees, as well as kitchens in which food is prepared on the premises for serving elsewhere, including catering facilities.
V. "Retail tobacco store" means any business establishment utilized primarily for the sale of tobacco products, including but not limited to, cigars pipe tobacco, and smoking accessories, and in which the sale of other products is merely incidental.
W. "Service area” means any publicly or privately owned area, including streets and sidewalks, that is designed to be used or is regularly used by one or more persons to receive a service, wait to receive a service, or to make a transaction, whether or not such service or transaction includes the exchange of money. The term “service area” includes, but is not limited to, areas including or adjacent to information kiosks, automatic teller machines (ATMs), ticket lines, bus stops or shelters, mobile vendor lines, or cab stands.
X. “Smoke” means the gases, particles, or vapors released into the air as a result of combustion, electrical ignition, or vaporization, when the apparent or usual purpose of the combustion, electrical ignition, or vaporization is human inhalation of the byproducts, except when the combusting or vaporizing material contains no tobacco or nicotine and the purpose of inhalation is solely olfactory, such as, for example, smoke from incense. The term “smoke” includes, but is not limited to, tobacco smoke, vapors from an electronic device, and cannabis smoke.
Y. "Smoking" means inhaling, exhaling, burning, or carrying any lighted cigar, cigarette, weed or plant or other combustible substance whose smoke is intended to be inhaled. Smoking, as defined in this chapter, does not include the use of traditional, sacred tobacco as part of an Indigenous practice or a lawfully recognized religious, spiritual, or cultural ceremony or practice.
Z. "Sports arena" means enclosed or unenclosed sports pavilions, gymnasiums, health spas, boxing arenas, swimming pools, roller and ice rinks, bowling alleys and other similar places where members of the public assemble either to engage in physical exercise, participate in athletic competition, or witness sports events.
8 AA. “Tobacco product” means:
1. Any product containing, made, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, snuff; and
2. Any electronic device that delivers nicotine or other substances to the person inhaling from the device, including, but not limited to, an electronic cigarette, electronic cigar, electronic pipe, or electronic hookah.
The phrase “tobacco product” does not include a product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where the product is marketed and sold solely for such an approved purpose.
7.68.030 – Prohibition of smoking in City-owned vehicles and facilities.
Smoking shall be prohibited in all City-owned vehicles, including buses and other means of public transit under the authority of the City, and all enclosed facilities owned and controlled by the City.
7.68.040 – Smoking restrictions in multi-unit residences.
A. Effective 90 days after the effective date of this ordinance, smoking is prohibited in all multi-unit residences.
B. No person with legal control over any multi-unit residence shall permit smoking anywhere on the premises of the multi-unit residence except as permitted in subsection
7.68.060(A)(7).
7.68.050 – Prohibition of smoking in enclosed areas.
Smoking is prohibited in the enclosed areas of the following places within the City:
A. Places of employment;
B. Public places;
C. Common areas of multi-unit residences;
D. Retail tobacco shops; and
E. Sports arenas.
9 7.68.060 – Prohibition of smoking in unenclosed areas.
A. Except as otherwise provided in this chapter, smoking shall be prohibited in the unenclosed areas of the following places within the City:
1. Recreational areas.
2. Service areas.
3. Dining Areas.
4. Places of employment, except as permitted in subsection 7.68.060(A)(8).
5. Any private or public sidewalks.
6. Public places, except as permitted in subsection 7.68.060(A)(8).
7. Common areas of multi-unit 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:
a. Is located a reasonable distance from any unit or enclosed area where smoking is prohibited by this chapter or other law; by binding agreement relating to the ownership, occupancy, or use of real property; or by designation of a person with legal control over the property. A person with legal control over a designated smoking area may be obliged to modify, relocate, or eliminate it as laws change, as binding agreements are created, and as nonsmoking areas on neighboring property are established;
b. Does not include, and is a reasonable distance from, unenclosed areas primarily used by children and unenclosed areas with improvements that facilitate physical activity including, for example, playgrounds, tennis courts, swimming pools, school campuses, and sandboxes;
c. Is no more than 10 percent of the total unenclosed area of the multi-unit residence for which it is designated;
d. Has a clearly marked perimeter;
e. Is identified by conspicuous signs;
f. Is completely within an unenclosed area; and
g. Does not overlap with any enclosed or unenclosed area in which smoking is otherwise prohibited by this chapter or other provisions of this code, state law, or federal law.
8. Common areas of commercial properties, 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:
10 a. Is located a reasonable distance from any enclosed area where smoking is prohibited by this chapter or other law; by binding agreement relating to the ownership, occupancy, or use of real property; or by designation of a person with legal control over the property. A person with legal control over a designated smoking area may be obliged to modify, relocate, or eliminate it as laws change, as binding agreements are created, and as nonsmoking areas on neighboring property are established;
b. Does not include, and is a reasonable distance from, unenclosed areas primarily used by children and unenclosed areas with improvements that facilitate physical activity including, for example, playgrounds, tennis courts, swimming pools, school campuses, and sandboxes;
c. Is no more than 10 percent of the total unenclosed area of the commercial property for which it is designated;
d. Has a clearly marked perimeter;
e. Is identified by conspicuous signs;
f. Is completely within an unenclosed area; and
g. Does not overlap with any enclosed or unenclosed area in which smoking is otherwise prohibited by this chapter or other provisions of this code, state law, or federal law.
B. Nothing in this chapter prohibits any person, employer, or nonprofit entity with legal control over any premises from prohibiting smoking on any part of such premises, even if smoking is not otherwise prohibited in that area.
7.68.070 – Smoking optional areas.
A. Notwithstanding any other provision of this chapter to the contrary, the following areas shall not be subject to the smoking restrictions of this chapter:
1. Private detached single-family residences, except when used as a family day care or health care facility.
2. Private smokers’ lounges.
3. An enclosed place of employment which employs only the owner and no other employee, provided that:
(a) The place of employment is not a public place; and
11 (b) The place of employment does not share a ventilation system with any other enclosed place of employment or public place.
7.68.080 – Reasonable smoking distance required.
A. Smoking in all unenclosed areas shall be prohibited within a reasonable distance from any doorway, window, opening, crack, or vent into an enclosed area in which smoking is prohibited.
B. Smoking in unenclosed areas shall be prohibited within a reasonable distance from any unenclosed areas in which smoking is prohibited under Section 7.68.060.
C. The prohibitions in subsections (A) and (B) of this section shall not apply to unenclosed areas of private residential properties that are not multi-unit residences.
7.68.090 – Nonsmoking buffer zones.
A. Smoking is prohibited in adjacent unenclosed property located within 20 feet in any direction of any doorway, window, opening, or other vent into an enclosed area of a multi-unit residence.
B. Subsection (A) of this section does not apply to a person who is smoking in the restricted buffer zone area while actively passing on the way to another destination.
7.68.100 Notice and posting of signs.
A. Every landlord and homeowner association shall deliver the following, on or before the effective date of the ordinance codified in this chapter plus 90 days, to each unit of a multi-unit residence or multi-tenant non-residential premises:
1. A written notice clearly stating:
a. All units are designated nonsmoking units and smoking is illegal in a unit, including any associated exclusive-use enclosed area or unenclosed area, such as a private balcony, porch, deck, or patio, as of the effective date of the ordinance plus 90 days; and
b. Smoking in all common areas, except for specifically designated smoking areas, is a violation of this chapter as of the effective date of the ordinance codified in this chapter.
2. A copy of this chapter.
B. As of the effective date of the ordinance codified in this chapter, every landlord shall provide prospective tenants with written notice clearly stating that:
12 1. Smoking is prohibited in units, including any associated exclusive-use enclosed area or unenclosed area, such as, for example, a private balcony, porch, deck, or patio, as of effective date of the ordinance codified in this chapter; and
2. Smoking is prohibited in all common areas, except for specifically designated smoking areas, as of effective date of ordinance codified in this chapter.
C. As of the effective date of the ordinance codified in this chapter, every seller of a unit in a multi-unit residence or a non-residential premises space shall provide prospective buyers with written notice clearly stating that:
1. Smoking is prohibited in units, including any associated exclusive-use enclosed area or unenclosed area, such as, for example, a private balcony, porch, deck, or patio, as of the effective date of the ordinance codified in this chapter; and
2. Smoking is prohibited in all common areas, except for specifically designated smoking areas, as of the effective date of the ordinance codified in this chapter.
D. The person or persons with legal control over common areas shall post clear and unambiguous “No smoking” signs in sufficient numbers and locations in common areas where smoking is prohibited by this chapter or other law. In addition, the person or persons with legal control over the multi-unit residence shall post signs in sufficient numbers and locations in the multi-unit residence to indicate that smoking is prohibited in all units. The person or persons with legal control over the common areas shall maintain such signs. The absence of signs shall not be a defense to a violation of any provision of this chapter.
7.68.110 – Required and implied lease terms.
A. Every lease or other rental agreement for the occupancy of a unit in a multi-unit residence or multi-tenant space in a non-residential premises, entered into, renewed, or continued month to month after the effective date of the ordinance codified in this chapter, shall include the provisions set forth in subsection (B) of this section on the earliest possible date allowable by law.
B. Every lease or other rental agreement for the occupancy of a unit in a multi-unit residence or multi-tenant space in a non-residential premises, entered into, renewed, or continued month to month after the effective date of the ordinance codified in this chapter, shall be amended to include the following provisions:
1. A clause providing that as of the effective date of the ordinance codified in this chapter, it is a material breach of the agreement to knowingly or intentionally allow, or engage in, smoking in the unit, including exclusive-use areas such as balconies, porches, or patios.
2. A clause providing that it is a material breach of the agreement for tenant to knowingly and intentionally allow, or engage in, smoking in any common area of the 13 multi-unit residence or multi-tenant space in a non-residential premises other than a designated smoking area.
3. A clause providing that it is a material breach of the agreement for tenant to violate any law regulating smoking while anywhere on the property, or to knowingly and intentionally allow any other person subject to the control of the tenant to engage in such behavior.
4. A clause expressly conveying third-party beneficiary status to all occupants of the multi-unit residence or multi-tenant space in a non-residential premises as to the smoking provisions of the lease or other rental agreement.
C. Whether or not a landlord complies with subsections (A) and (B) of this section, the clauses required by those subsections shall be implied and incorporated by law into every agreement to which subsection (A) or (B) of this section apply and shall become effective as of the earliest possible date on which the landlord could have made the insertions pursuant to subsection (A) or (B) of this section.
D. A tenant who breaches, or knowingly and intentionally allows any other person subject to the control of the tenant to breach, a smoking provision of a lease or other rental agreement for the occupancy of a unit in a multi-unit residence or multi-tenant space in a non-residential premises shall be liable for the breach to (1) the landlord; and (2) any occupant of the multi-unit residence or multi-tenant space in a non-residential premises who is exposed to smoke or who suffers damages as a result of the breach. A landlord shall not be liable to any person for a tenant’s breach of smoking regulations if the landlord has fully complied with this section.
E. 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.
7.68.120 – Nuisance.
A. The provisions of this chapter are restrictive only and establish no new rights for a person who engages in smoking. Notwithstanding (1) any provision of this chapter or of this code, (2) any failure by any person to restrict smoking under this chapter or (3) any explicit or implicit provision of this code that allows smoking in any place, nothing in this code shall be interpreted to limit any person’s legal rights under other laws with regard to smoking, including, for example, rights in nuisance, trespass, property damage, and personal injury or other legal or equitable principles.
B. For all purposes within the jurisdiction of the City, nonconsensual exposure to smoke occurring on or drifting into residential property is a nuisance, and the uninvited presence of smoke on residential property is a nuisance.
C. Pursuant to California State law, Health and Safety Code Section 11362.3, smoking cannabis is prohibited wherever smoking tobacco is prohibited. 14 D. Notwithstanding any provision to the contrary, nothing in this chapter shall be interpreted to restrict or otherwise regulate the use of a drug, device, or combination product authorized for sale by the United States Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act.
7.68.130 – Other requirements and prohibitions.
A. No person, employer, or nonprofit entity shall knowingly permit smoking in an area which is under the legal or de facto control of that person, employer, or nonprofit entity and in which smoking is prohibited by law.
B. No person, employer, or nonprofit entity shall discharge, refuse to hire or in any manner retaliate against any employee or applicant for employment because such employee or applicant exercises any right to a smoke-free environment afforded by this chapter.
C. It shall be unlawful for any person to smoke in any area where smoking is prohibited under this chapter.
7.68.140 – Penalties and enforcement.
A. The remedies provided by this chapter are cumulative and in addition to any other remedies available under this code, at law, and/or in equity.
B. Enforcement of this chapter shall be implemented by the City Manager or his/her designee and may be enforced by any peace officer or code enforcement official. Prohibition of smoking in multi-unit residences and private outdoor spaces shall be enforced by the landlord and/or tenant.
C. Notwithstanding any other provision of this chapter, a private citizen may bring legal action to enforce this Chapter.
D. Each incident of smoking in violation of this chapter is an infraction subject to
1. A fine, not exceeding $100.00 and/or 5 days of community service, for the first violation.
2. A fine, not exceeding $200.00 and/or 10 days of community service, for a second violation of this section within 1 year.
3. A fine not exceeding $500.00 and/or 15 days of community service, for a third violation or any subsequent violation of this section within one year. 15 E. Each instance of smoking in violation of this chapter shall constitute a separate violation.
For violations other than for smoking, each day of a continuing violation of this chapter shall constitute a separate violation.
7.68.150 – Other applicable laws.
This chapter shall not be interpreted or construed to permit smoking when it is otherwise restricted or prohibited by other applicable laws.
SECTION 8. Severability
If any section, subsection, sentence, clause, phrase or word of this Ordinance is for any reason held to be invalid by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed and adopted this Ordinance, and each and all provisions hereof, irrespective of the fact one or more provisions may be declared invalid.
SECTION 9. Effective Date.
This Ordinance shall take effect and be in full force and effect from and after thirty (30) days after its final passage.
16