This chapter shall be known as the "Smoking Pollution Control
Ordinance."
(Sec. 1 (part), Ord. 18-003, eff. Dec. 1, 2018)
The following words and phrases, whenever used in this chapter,
shall be construed as defined in this section:
(a)
Cannabis. See Section 5-28.03(b) or its successor section of the Emeryville Municipal Code.
(b)
"Cigar"
means any roll of tobacco that is wrapped in tobacco leaf
or any other substance containing tobacco, with or without a tip or
mouthpiece, including, but not limited to, tobacco products known
or labeled as cigar, cigarillo, little cigar, blunt, blunt wrap, or
cigar wrap.
(c)
"Cigarette"
means any roll of tobacco wrapped in paper or in any substance
not containing tobacco, and any roll of tobacco wrapped in any substance
containing tobacco which, because of its appearance, the type of tobacco
used in the filler, or its packaging and labeling, is likely to be
offered to, or purchased by, consumers as a cigarette described herein.
(d)
"Common area"
means every enclosed area and every unenclosed area of a
multi-unit residence that residents of more than one (1) 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, grassy or landscaped
areas, restrooms, laundry rooms, cooking areas, and eating areas.
(e)
"Electronic smoking device"
means an electronic 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 including any component, part, or accessory of the device and any substance that may be aerosolized or vaporized by such a device, whether or not the substance contains nicotine. "Electronic smoking device" does not include drugs, devices, or combination of products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act, or cannabis or cannabis product as defined in Section 5-28.03.
(f)
"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.
(g)
"Multi-unit residence"
means residential property containing two (2) or more units,
with one (1) or more shared wall, floor, ceiling or ventilation system,
including apartments, condominiums, duplexes or townhomes and their
patios and balconies. A multi-unit residence does not include: a residential
care facility or assisted living facility where smoking is governed
by Federal or State community care licensing regulations; or a single-family
residence, including one (1) which has a detached permitted accessory
dwelling unit on the same lot, unless the single-family residence
is used as a day care center.
(h)
"Public place"
means any place, public or private, open to the general public regardless of any fee or age requirement, including, for example, businesses, bars, restaurants, clubs, dining areas, outdoor recreational facilities, sports arenas, stores, stadiums, parks, greenways, playgrounds (including tot lots), retail stores, theaters and waiting rooms. Excludes a place that has a cannabis sales conditional use permit pursuant to Title 9 and dispensary/retailer operator's permit pursuant to Chapter 28 of Title 5.
(i)
"Reasonable distance"
means a distance of twenty-five feet (25') from any smoke-free
area that ensures that occupants of an area in which smoking is prohibited
are not exposed to secondhand smoke created by smokers outside the
area.
(j)
"Retail or wholesale tobacco shop"
means any business establishment that derives fifty percent
(50%) or more of gross receipts from the sale or exchange of tobacco
products or any other weed, plant or combustible substance, including
smoking paraphernalia.
(k)
"Secondhand smoke"
means the smoke created by burning or carrying any lighted
pipe, cigar, hookah, narghile, sheesha, cigarette, or tobacco product
of any kind, or any other weed, plant or combustible substance, and
the smoke exhaled by an individual who engages in smoking as defined
in this section.
(l)
"Service lines"
means any place where people are using or waiting for a service,
entry, or transaction whether or not such service includes the exchange
of money including, but not limited to, ATMs, bank teller windows,
telephones, ticket lines, and waiting areas of public transit or taxicab
depots.
(m)
"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, tobacco
product, 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, electronic smoking device vapors,
cannabis smoke, and crack cocaine smoke.
(n)
"Smoking"
means inhaling, exhaling, burning or carrying any lighted,
heated, or ignited pipe, cigar, hookah, narghile, sheesha, cigarette,
cigarillo, electronic smoking device or any plant product, including
tobacco or tobacco product, intended for human inhalation.
(o)
"Smoking lounges"
means a business establishment that is dedicated, in whole or part, to the smoking of tobacco products of any kind, or any other weed, plant or combustible substance, including cannabis, including but not limited to establishments known variously as cigar, hookah, narghile, sheesha or tobacco lounges, clubs, bars or cafes, whether private or public. For purposes of this chapter, "smoking lounges" include such establishments where the sale of beverages or food for consumption occurs on such premises, even where incidental to stated purpose. Excludes a place that has a cannabis sales conditional use permit pursuant to Title 9 that allows for smoking.
(p)
"Smoking paraphernalia"
means cigarette papers or wrappers, pipes, holders of smoking
materials of all types, hookahs, cigarette rolling machines, electronic
cigarettes and any other item designed for the smoking or ingestion
of tobacco products or any other weed, plant or combustible substance.
(q)
"Tobacco product"
means any product, whether natural or synthetic, 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, and snuff. Also includes any component, part, or accessory
of a tobacco product, whether or not sold separately. Excludes any
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 such product is marketed and sold solely
for such an approved purpose.
(r)
"Unenclosed area"
means any area that is not an enclosed area.
(s)
"Vending machine"
means any electronic or mechanical device or appliance, the
operation of which depends upon insertion of money, whether in coin
or in paper bill, or other thing representative of value, which dispenses
or releases tobacco products, cannabis and/or smoking paraphernalia.
(Sec. 2, Ord. 24-006, eff. June 6, 2024; Sec. 1 (part), Ord. 18-003, eff. Dec. 1, 2018)
Smoking shall be prohibited in all facilities, areas, and vehicles
owned, leased, operated or controlled by the City of Emeryville, and
all such areas shall be subject to the provisions of this chapter.
(Sec. 1 (part), Ord. 18-003, eff. Dec. 1, 2018)
(a)
Smoking
shall be prohibited in any and all public places within the City of
Emeryville whether enclosed or unenclosed areas, including the enclosed
places identified in California Labor Code Section 6404.5(e), or its
successor, unless an exception exists elsewhere in either State law
or this chapter.
(b)
To the extent not prohibited by subsection (a) of this section, smoking shall be prohibited in the following places:
(1)
In all areas, including common areas, and all units of a multi-unit
residence, including any associated exclusive-use enclosed areas or
unenclosed areas, such as, for example, a private balcony, porch,
deck, or patio.
(2)
All areas of a hotel, motel, or other similar transient lodging establishment,
including guest rooms, meeting and banquet rooms, and all lobby areas.
For purposes of this subsection, "lobby" means the common public area
of an establishment in which registration and other similar or related
transactions, or both, are conducted and in which the establishment's
guests and members of the public typically congregate.
(3)
Meeting and banquet rooms in a restaurant, or public convention center,
including while food or beverage functions are taking place, setup,
service, and cleanup activities, or when the room is being used for
exhibit purposes.
(4)
Retail or wholesale tobacco shops and smoking lounges as defined
herein and by California Labor Code Section 6404.5(e)(2)(A), except as provided in Section 5-29.09.
(5)
Buses, taxicabs and other means of public transit offered within
the City, and service lines.
(6)
Retail stores.
(7)
All enclosed areas available to and customarily used by the general
public in all businesses and nonprofit entities patronized by the
public, including, but not limited to, business offices and banks.
(8)
Restaurants, dining areas and bars whether enclosed or unenclosed.
(9)
Sports arenas and convention halls, except in designated smoking
areas approved by the City and which protect nonsmokers from secondhand
smoke.
(10)
Every room, chamber, and place of meeting or public assembly, including
school buildings under the control of any board, council, commission,
committee, or agencies of the City or any political subdivision of
the State during such time as a public meeting is in progress, to
the extent such place is subject to the jurisdiction of the City.
(11)
Parks, playgrounds, and greenways.
(12)
Family care, childcare, and health care facilities and single-family
residences used as a family care, childcare or health care facility.
(13)
Public events, including those events occurring in the public right-of-way.
(14)
Service lines, including Alameda County Transit bus stops, Emery-Go-Round
shuttle stops and within a reasonable distance from Emery-Go-Round
shuttle stops and Alameda County Transit bus stops.
(c)
Pursuant to State law, smoking of cannabis or any product, whether natural or synthetic, containing, made or derived from cannabis is prohibited in all areas where smoking of tobacco or tobacco products is prohibited and in public places, as that term is interpreted under State law, except in a designated area at a cannabis retail sales site, provided the site has obtained a conditional use permit pursuant to Title 9 that allows for smoking of cannabis, and the designated smoking cannabis area complies with California Business and Professions Code Section 26200(g).
(d)
Notwithstanding
any other provision of this section, any person, business, nonprofit
entity, owner, operator, manager or employer who controls any premises
described in this section may declare that entire establishment as
a nonsmoking establishment.
(e)
No
person, business, nonprofit entity, owner, operator, manager or employer
who controls any premises described in this section shall provide
or place ash receptacles such as, without limitation, ashtrays or
ash cans, within an area in which smoking is prohibited, including,
without limitation, inside the perimeter of any reasonable distance
required by this chapter.
(Sec. 1 (part), Ord. 18-003, eff. Dec. 1, 2018)
Except as provided for in Section 5-29.07, smoking shall be prohibited in all places of employment.
(Sec. 1 (part), Ord. 18-003, eff. Dec. 1, 2018)
(a)
No
person, business, nonprofit entity, owner, manager, operator or employer
shall knowingly or intentionally permit smoking in an area which is
under their control and in which smoking is prohibited pursuant to
this chapter.
(b)
No
person, business, nonprofit entity, owner, manager, operator or employer
shall knowingly or intentionally permit the presence or placement
of ash receptacles, such as, without limitation, ash trays or ash
cans, within an area which is under their control and in which smoking
is prohibited, including, without limitation, inside the perimeter
of any reasonable distance required by this chapter.
(c)
It shall be the responsibility of employers to provide smoke-free working areas for all employees, but employers are not required to incur any expense to make structural or other physical modifications. Employers shall post "No Smoking" or "Smoke Free" signs in accordance with Section 5-29.12. Smoking outside of the work building shall occur only at the reasonable distance from the building to minimize any smoke entering the building from operable doors, windows, or vents.
(d)
For
purposes of this section, a person, business, nonprofit entity, owner,
manager, operator or employer who permits any person access to an
area under their control has not "knowingly" or "intentionally" permitted
smoking in the area if the following reasonable steps have been taken
to prevent smoking:
(1)
"Smoking" or "No Smoking"
signs, whichever are appropriate, have been posted in accordance with Section 5-29.12; and
(2)
Has requested, when appropriate, that a person who is smoking in
violation of this chapter refrain from smoking; and
(3)
Has registered a complaint pursuant to Section 5-29.15(b) with the City Manager or his or her designee when the person who is smoking in violation of this chapter refuses to refrain from smoking.
For purposes of this subsection, "reasonable steps" does not
include any obligation on the part of the person, business, nonprofit
entity, owner, manager, operator or employer who is in control of
an area in which smoking is prohibited to: (i) effect the physical
ejection of the person who is smoking from the area; or (ii) make
a request of a person to refrain from smoking under circumstances
involving a risk of physical harm to any person.
(e)
Every
lease or other rental agreement for the occupancy of a unit in a multi-unit
residence, entered into, renewed, or continued month-to-month after
January 1, 2019, shall include the provisions set forth in this subsection
on the earliest date when such an amendment is allowable by law when
providing the minimum legal notice.
(1)
Every lease or other rental agreement for the occupancy of a unit
in a multi-unit residence, entered into, renewed, or continued month-to-month
after January 1, 2019, shall be amended to include the following provisions:
(i)
A clause providing that as of January 1, 2019, it is a material breach
of the agreement to allow or engage in smoking in the unit of a multi-unit
residence, including exclusive-use areas such as balconies, porches,
or patios. 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 to engage in smoking in the unit or exclusive use areas
such as balconies, porches, or patios as of January 1, 2019."
(ii)
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 engage in smoking in any common area of the multi-unit residence
other than a designated smoking area. 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 engage in smoking in any common area of the property,
except in an outdoor designated smoking area, if one exists."
(iii)
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."
(iv)
A clause expressly conveying third-party beneficiary status to all
occupants of the multi-unit residence as to the smoking provisions
of the lease or other rental agreement. Such a clause might state,
"Other occupants of the property are express third-party beneficiaries
of those provisions in this agreement regarding smoking. As such,
other occupants of the property may enforce such provisions by any
lawful means, including by bringing a civil action in a court of law."
(2)
Whether or not an owner complies with subsection (e)(1) of this section,
the clauses required by the subsection shall be implied and incorporated
by law into every agreement to which subsection (e)(1) of this section
applies and shall become effective as of the earliest possible date
on which the owner could have made the insertions pursuant to subsection
(e)(1) of this section.
(3)
This section shall not create additional liability for owner 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 multi-unit
residence if the owner has fully complied with this section.
(f)
Every
owner of a unit(s) of a multi-unit residence shall deliver the following,
on or before January 1, 2019, to any tenant:
(1)
A written notice clearly stating:
(i)
All units in a multi-unit residence are designated nonsmoking units
and smoking will be illegal in a unit, including any associated exclusive-use
enclosed area or unenclosed area, such as, for example, a private
balcony, porch, deck, or patio as of July 1, 2019.
(ii)
Smoking in all common areas, except for specifically designated smoking
areas, will be a violation of this chapter as of July 1, 2019.
(2)
A copy of this chapter.
(g)
As
of January 1, 2019, every owner shall provide to prospective tenants
of a unit in a multi-unit residence the following written notice:
(h)
As
of January 1, 2019, every seller of a unit in a multi-unit residence
shall provide prospective buyers with written notice clearly stating
that:
(Sec. 1 (part), Ord. 18-003, eff. Dec. 1, 2018)
Notwithstanding any other provisions of this chapter to the
contrary, the following areas shall not be subject to the restrictions
of this chapter:
(a)
Unenclosed
areas outside of the reasonable distance, as defined in this chapter,
from any operable entryway, window, or vent into any area in which
smoking is prohibited by this chapter.
(b)
Single-family
residences, except where used as a family care, childcare or health
care facility, or where an attached accessory dwelling unit exists.
(c)
Medical
research or treatment sites if smoking is integral to the research
and treatment being conducted.
(d)
A
designated smoking area in a common area that meets all of the following
requirements: (1) located in an unenclosed area, (2) at least a reasonable
distance from any unenclosed areas that are primarily used by children,
and any unenclosed areas with improvements that facilitate physical
activity, such as playgrounds, tennis courts, swimming pools, and
school campuses, and (3) oriented so that smoke does not drift into
an area where smoking is prohibited.
(e)
The
public right-of-way, provided the smoking is in compliance with all
other provisions of this chapter.
(Sec. 1 (part), Ord. 18-003, eff. Dec. 1, 2018)
No cigarette or other tobacco product may be sold, offered for
sale, or distributed by or from a vending machine or other appliance,
or any other device designed or used for vending purposes, except
from vending machines located on premises which have either a type
61, type 42 or type 48 license or their equivalent from the Department
of Alcoholic Beverage Control, or other premises from which persons
younger than twenty-one (21) years of age are at all times excluded,
including card rooms that are licensed to operate within the City
of Emeryville in accordance with Chapter 5 of this title.
(Sec. 1 (part), Ord. 18-003, eff. Dec. 1, 2018)
Smoking shall be prohibited in any smoking lounge within the
City of Emeryville.
(Sec. 2, Ord. 24-006, eff. June 6, 2024; Sec. 1 (part), Ord. 18-003, eff. Dec. 1, 2018)
Retail or wholesale tobacco shops are prohibited from being
located within one thousand feet (1,000') of public or private schools
and parks, greenways and playgrounds.
(Sec. 1 (part), Ord. 18-003, eff. Dec. 1, 2018)
(a)
Smoking
shall be prohibited within a reasonable distance, as defined in this
chapter, from any operable entryway, window, or vent into an enclosed
area of any area in which smoking is prohibited by this chapter, except
while actively passing on the way to another destination and without
entering or crossing any area in which smoking is prohibited.
(b)
Smoking
shall be prohibited within a reasonable distance, as defined in this
chapter, from any area in which smoking is prohibited by this chapter,
except while actively passing on the way to another destination and
without entering or crossing any area in which smoking is prohibited.
(Sec. 1 (part), Ord. 18-003, eff. Dec. 1, 2018)
(a)
"Smoking" or "No Smoking"
signs, whichever are appropriate, with letters of not less
than one inch (1") in height, or the international "No Smoking" symbol
(consisting of a pictorial representation of a burning cigarette enclosed
in a red circle with a red bar across it) shall be clearly, sufficiently
and conspicuously posted inside and outside of buildings and other
general areas where smoking is controlled by this chapter, by the
owner, operator, manager or other person having control of such buildings
or areas. When a sign is posted on the exterior of a building to indicate
no smoking, it shall include the reasonable distance limitations contained
in this chapter.
(b)
Every
theater and hotel or motel owner, manager, or operator shall conspicuously
post signs in the lobby, meeting and banquet rooms and other general
areas stating that smoking is prohibited within the hotel, motel,
theater or auditorium.
(Sec. 1 (part), Ord. 18-003, eff. Dec. 1, 2018)
This chapter shall not be interpreted or construed to permit
smoking where it is otherwise restricted by other applicable laws.
Further, to the extent smoking is already prohibited by provisions
of State or Federal law, then such State or Federal laws shall apply.
(Sec. 1 (part), Ord. 18-003, eff. Dec. 1, 2018)
Secondhand smoke in violation of this chapter constitutes a
nuisance.
(Sec. 1 (part), Ord. 18-003, eff. Dec. 1, 2018)
(a)
Enforcement
shall be implemented by the City Manager, or his or her designee.
(b)
Any
citizen may initiate enforcement of this chapter by registering a
complaint with the City Manager, or his or her designee.
(c)
Any
person, business, nonprofit entity, owner, manager, operator or employer
who owns, manages, operates or otherwise controls the use of any premises
subject to this chapter shall have the right to inform persons violating
this chapter of the appropriate provisions hereof.
(d)
Notwithstanding
any other provisions of this chapter, a private citizen may bring
legal action to enforce this chapter or to abate secondhand smoke
as a nuisance. However, the City is not a proper party nor shall a
private citizen or any party otherwise bring legal action against
the City for nonenforcement of this chapter.
(e)
No
person shall intimidate, harass, or otherwise retaliate against any
person who seeks compliance with this chapter. Moreover, no person
shall intentionally or recklessly expose another person to smoke in
response to that person's effort to achieve compliance with this chapter.
(f)
Any
person, including a legal entity or organization acting for the interests
of itself, its members, or the general public, may bring a civil action
to enforce this chapter by way of a conditional judgment or an injunction
to prevent future such violations and may sue to recover such actual
or statutory damages as he or she may prove.
(Sec. 1 (part), Ord. 18-003, eff. Dec. 1, 2018)
(a)
It
is unlawful for any person, business, nonprofit entity, owner, manager,
operator or employer who owns, manages, operates or otherwise controls
the use of any premises subject to the regulation under this chapter
to fail to comply with its provisions.
(b)
It
is unlawful for any person to smoke in any area restricted by the
provisions of this chapter.
(c)
Any person, business, nonprofit entity, owner, manager, operator or employer who violates any provision of this chapter shall be guilty of an infraction, punishable in accordance with Section 1-2.01.
(d)
Where the City finds that this chapter has been violated, the City may issue an administrative citation pursuant to Chapter 7 of Title 1.
(e)
A
tenant who breaches a smoking provision of a lease or other rental
agreement for the occupancy of a unit in a multi-unit residence, or
who knowingly permits any other person subject to the control of the
tenant or present by invitation or permission of the tenant, shall
be liable for the breach to (1) the owner; and (2) any occupant of
the multi-unit residence who is exposed to smoke or who suffers damages
as a result of the breach.
(Sec. 1 (part), Ord. 18-003, eff. Dec. 1, 2018)
Any enforcement action taken by the City Manager relating to this chapter may be appealed to a hearing officer in accordance with Chapter 7 of Title 1.
(Sec. 1 (part), Ord. 18-003, eff. Dec. 1, 2018)
The City Manager is authorized to promulgate regulations to
implement and enforce this chapter.
(Sec. 1 (part), Ord. 18-003, eff. Dec. 1, 2018)