HomeMy WebLinkAbout6.1 Amend Muni Code Smoking~~~~~
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CITY CLERK
File # ^~~ 0^-~0
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: November 18, 2008
SUBJECT:
ATTACHMENTS:
RECOMMENDATION:
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FINANCIAL STATEMENT:
PUBLIC HEARING: Amendment of Dublin Municipal Code
Chapter 5.56 (Smoking Pollution Control)
Report Prepared by Roger Bradley, Administrative Analyst
1) Ordinance Amending Chapter 5.56 of the Dublin Municipal
Code Relating to Smoking Pollution Control with
Strikethrough Notations.
2) Ordinance Amending Chapter 5.56 of the Dublin Municipal
Code Relating to Smoking Pollution Control without
Strikethrough Notations.
1) Receive Staff Presentation;
2) Open Public Hearing;
3) Receive Public Testimony;
4) Close Public Hearing and Deliberate; and
5) Waive the reading and INTRODUCE the Ordinance
Amending Chapter 5.56 of the Dublin Municipal Code
relating to Smoking Pollution Control.
None.
DESCRIPTION: At the City Council meeting on October 7, 2008, the City Council
directed Staff to prepare an ordinance, for Council's consideration, which would augment the City's
Smoking Pollution Control Ordinance by creating non-smoking units at the apartment rental housing
complexes in the City of Dublin. The proposed ordinance is based on the City Council approved
recommendations from the Multifamily Dwelling Taskforce and Housing Committee. Two copies of the
proposed ordinance are attached. Attachment 1 shows the changes proposed to Chapter 5.56 with
additions underlined and deletions denoted by strikethrough, and Attachment 2 is a clean version
provided for adoption.
COPY TO: Janice Louie, ALCO Tobacco Coalition
Multifamily Dwelling Taskforce Members
Page 1 of 2
ITEM NO.
F:\Council\Agenda Statements\2008-2009\as-MFD lst.doc
n
Amendment Proposal
The proposed ordinance requires that apartment complexes with 16 or more for rent apartment units
designate 50% of those units as non-smoking within a 24 month period. In addition, the proposed
ordinance would prohibit smoking in common outdoor areas, which includes a provision that landlords
may designate a portion of the outdoor area for smoking. Under the proposed ordinance, prohibited
outdoor areas would include, but not be limited to, recreation facilities (e.g., basketball courts and
swimming pools), common outdoor space (e.g., courtyards and paths), and parking areas. At the
conclusion of the 24 month period, the City Council would revisit the ordinance and decide whether to
increase the requirement to designate 50% of the units as non-smoking to 70%. Revisiting this item before
increasing the percentage will allow landlords and others to present findings as to whether a 70%
threshold can be feasibly and equitably obtained. Non-smoking units would have to be grouped together to
the greatest extent possible.
The Smoking Pollution Control Chapter of Dublin Municipal Code (Chapter 5.56) currently contains an
item that would apply to the proposed ordinance. Specifically, the Reasonable Distance provision of this
chapter would provide a buffer zone of 20 feet around windows, doors, and vents of non-smoking units.
The proposed ordinance also contains a provision that landlords of multiunit complexes with 16 or more
units will be required to disclose to prospective tenants the number and location of smoking and non-
smoking units, location of smoking areas, and procedures for addressing smoking-related complaints.
The proposed ordinance requires that annual reports be submitted to the City, covering compliance,
feasibility, and the effects of the transition. As requested by the City Council, Staff will review these
reports and present findings to the City Council after the first year of the transition. The City Council will
review the necessity to continue the submittal of the annual report at 24 months and, if necessary, at 48
months.
Enforcement of Proposed Ordinance
Dublin Police Services is responsible for enforcing the provisions of the Smoking Pollution Control
Ordinance. Typically, enforcement occurs when the City receives notice that a specific violation or repeat
violation has occurred. Fines may be given when necessary, particularly for repeat offenses. A fine not
exceeding $100 may be issued for any single violation within a given year, followed by a fine of $200 for
a second violation, and a fine of $500 for all subsequent violations within the same year. These fines are
currently codified in the Dublin Municipal Code and could be applied to violators of the proposed
ordinance. Additionally, violations of the proposed ordinance would be considered a breach of the
contract with the landlord and grounds for terminating tenancy.
Outreach & Notification
All Dublin multi-family complexes have received an individual notice, as a courtesy, about the proposed
ordinance and information about when and how to provide public testimony. In addition, a courtesy
announcement appeared in the Valley Times on Saturday, November 8, 2008 to inform the community of
the City Council's consideration of the proposed Ordinance. If the City Council were to adopt the
ordinance as proposed, landlords would have 90 days to notify their tenants about the ordinance.
RECOMMENDATION: Staff recommends that the City Council: 1) Receive Staff
presentation; 2) Open public hearing; 3) Receive public testimony; 4) Close public hearing and deliberate;
and 5) Waive the reading and INTRODUCE the Ordinance Amending Chapter 5.56 of the Dublin
Municipal Code relating to Smoking Pollution Control.
Page 2 of 2
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ORDINANCE NO.
AN ORDINANCE OF THE CITY OF DUBLIN AMENDING
CHAPTER 5.56 OF THE DUBLIN MUNICIPAL CODE
RELATING TO SMOKING POLLUTION CONTROL
WHEREAS, smoking has been shown to pose health risks to smokers; and
WHEREAS, secondhand smoke and its residual contaminants have been shown to pose
health risks to both smokers and non-smokers; and
WHEREAS, the City Council of the City of Dublin wishes to preserve and improve the
health of it residents by reducing the possibility of exposure to secondhand smoke and its
contaminates by providing housing for non-smokers within the City's apartment rental housing
complexes.
NOW, THEREFORE, the City Council of the City of Dublin does hereby ordain as follows:
Section 1. Sections 5.56.020, 5.56.040, and 5.56.050 of the Dublin Municipal Code are
amended as follows and Section 5.56.055 is added to the Dublin Municipal Code, with additions
indicated by underline and deletions by strikethrough:
5.56.020 Findings and Purpose.
A. The City Council finds that:
1. Numerous studies have found that tobacco smoke is a major contributor to indoor air
pollution; and
2. Reliable studies have shown that breathing secondhand smoke is a significant health
hazard for certain population groups, including elderly people, individuals with cardiovascular
disease, and individuals with impaired respiratory function, including asthmatics and those with
obstructive airway disease; and
3. Health hazards induced by breathing secondhand smoke include lung cancer, respiratory
infection, decreased exercise tolerance, decreased respiratory function, bronchoconstriction, and
bronchospasm; and
4. Nonsmokers with allergies, respiratory diseases and those who suffer other ill effects of
breathing secondhand smoke may experience a loss of job productivity or may be forced to take
periodic sick leave because of adverse reactions to same; and
5. Numerous studies have shown that a majority of both non-smokers and smokers desire to
have restrictions on smoking in public places, places of employment, and multi-unit housing;
and
6. ,
'' ~' a ~ •* ° ° ^'°~~°~ *°'^~~~~„°~~°~. Smoking is the number one cause
of preventable home fire deaths across the nation; and
7. Cigarette butts pose a health threat to youn~ children when ingested, which may result in
vomiting, letharcy, nausea, and Wigging; and
8. Cigarette butts are a major and persistent source of litter; and
9. Nearly 87% of Californians do not smoke; and
Attachment 1
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10 A local ordinance that authorizes residential rental agreements to include a prohibition
on smoking of tobacco products within rental units is not prohibited by state law; and
B. Accordingly, the City Council finds and declares that the purposes of this chapter are:
1. To protect the public health and welfare by prohibiting smoking in public places except
in designated smoking areas, and by regulating smoking in places of employment; and
2. To strike a reasonable balance between the needs of smokers and the need of non_
smokers to breathe smoke-free air, and to recognize that, where these needs conflict, the need to
breathe smoke-free air shall have priority:; and
3 To provide for the~ublic health safety and welfare b~ discouraging the inherently
dangerous behavior of smoking around non-tobacco users; by protectinc children from exposure
to smoking where they live and play' and byprotecting_the public from nonconsensual exposure
to secondhand smoke in and around their homes.
5.56.040 Definitions.
The following words and phrases, whenever used in this chapter, shall be construed as defined
in this section:
"Bar" means an area that is devoted to the serving of alcoholic beverages for consumption by
guests on the premises and in which the service of food is incidental to the consumption of
beverages and in which persons younger than twenty-one (21) years of age are at all times
excluded:
"Business" means any sole proprietorship, partnership, joint venture, corporation or other
business entity formed for profit-making purposes, including private residences that are licensed
to provide child care, adult care, and other health care related services, retail establishments
where goods or services are sold as well as professional corporations and other entities where
legal, medical, dental, engineering, architectural or other professional services are delivered.
"Dining area" means any area containing a counter or table upon which meals are served or
any area designed, established, or regularly used for consuming meals.
"City sponsored event" means an event which the City of Dublin plans, administers,
coordinates, and finances, and which is held upon property owned by the City of Dublin.
"Community Park" means Dougherty Hills Dog Park, Dublin Heritage Center, Dublin Historic
Park, Dublin Sports Grounds, Dublin Swim Center, Emerald Glen Park, Fallon Sports Park,
Shannon Park, and any new park constructed after the effective date of this Ordinance that is
greater than eight (8) acres in size.
"Employee" means any person who is employed by any employer or hired as an independent
contractor in consideration for direct or indirect monetary wages or profit, and any person who
volunteers his or her services for a nonprofit entity.
"Employer" means any person, partnership, corporation or nonprofit entity, including a
municipal corporation, who employs the services of one or more persons.
"Enclosed" means closed in by roof and four walls with appropriate openings for ingress and
egress.
"Landlord" means any Person who owns real property leased as residential property, any
Person who lets residential property, or any Person who manages such property, except that
"Landlord" does not include sublessors.
"Multi-Unit Residence" means a Premises that contains sixteen (16) or more Units for rent
"Multi-Unit Residence Common Area" means any outdoor area of aMulti-Unit Residence
accessible to and usable by residents of different Units, including but not limited to pla areas,
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Attachment 1
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common cooking and eating areas swimming_pools common courtyards, paths and walkways,
and parking_areas.
"Nonprofit entity" means any corporation, unincorporated association or other entity created
for charitable, educational, political, social or other similar purposes, the net proceeds from the
operations of which are committed to the promotion of the objects or purposes of the
organization and not to private financial gain. A public agency is not a nonprofit entity within the
meaning of this section.
"Park recreation area" means any and all children's play areas, playgrounds, swimming areas,
sports fields, sports courts, skate parks, and picnic areas.
"Person" means an~natural person, partnership, cooperative association, corporation, personal
representative receiver, trustee, assignee, or any other legal entity
"Place of employment" means any area under the control of a public or private employer that
employees may have cause to enter during the normal course of employment, including, but not
limited to, work areas, vehicles, employee lounges and restrooms, conference rooms and
classrooms, cafeterias and hallways, except that a private residence is not a place of employment
unless it is used as a child care or a health care facility.
"Premises" means apiece of land and an~provements upon it such as is usually described
in a deed deed of trust or mortgage and includes leg_all~separate but Conti ug ous pieces of land
that are owned bathe same Person or b~tiple Persons ownin ag nd operating the land under
common control.
"Public place" means any area in which the public is invited or in which the public is
permitted, including, but not limited to: banks, educational facilities, health facilities, public
transportation facilities, reception areas, restaurants, retail food production and marketing
establishments, retail stores, theaters and waiting rooms.
"Reasonable distance" means a distance that ensures that occupants of an area in which
smoking is prohibited are not exposed to secondhand smoke created by smokers outside the area.
Except as otherwise provided in this Chapter, this distance shall be a minimum of twenty (20)
feet unless the application of the twenty (20) foot minimum would place the smoker in a
potentially unsafe location, in which case a "reasonable distance" shall be a location closer than
twenty feet which does not place the smoker in a potentially unsafe location.
"Restaurant" means any coffee shop, cafeteria, tavern, sandwich stand, soda fountain, private
or public school cafeteria, and any other eating establishment, organization, club, boardinghouse
or guest house, which gives or offers food for sale to the public, guests, patrons, members or
employees.
"Retail tobacco store" means a retail store utilized primarily for the sale of tobacco products
and accessories.
"Secondhand smoke" means the tobacco smoke created by burning or carrying any lighted
pipe, cigar, or cigarette of any kind, and the smoke exhaled by an individual who engages in
smoking.
"Self-service display" means the open display of tobacco products or tobacco paraphernalia in
a manner that is accessible to the general public without the assistance of the retailer or employee
of the retailer.
"Smoking" means the consumption of tobacco by inhaling, exhaling, burning or carrying any
lighted pipe, cigar or cigarette of any kind.
Attachment 1
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"Tobacco paraphernalia" means cigarette papers or wrappers, pipes, holders of smoking
materials of all types, cigarette rolling machines, and any other item designed for the smoking or
ingestion of tobacco products.
"Tobacco product" means any substance containing tobacco leaf, including but not limited to
cigarettes, cigars, pipe tobacco, snuff, chewing tobacco, dipping tobacco, bidis, or any other
preparation of tobacco.
"Tobacco retailer" means any person who sells, offers for sale, or does or offers to exchange
for any form of consideration tobacco, tobacco products, or tobacco paraphernalia. "Tobacco
retailing" shall mean the doing of any of these things. This definition is without regard to the
quantity of tobacco, tobacco products, or tobacco paraphernalia sold, offered for sale, exchanged,
or offered for exchange.
"Unit" means• (1) a dwelling space consisting of complete independent living facilities for one
or more persons including for exampleLpermanent provisions for livi ~ and sleeping and any
private outdoor spaces like balconies and patios• and (2) senior citizen housing and single room
occupancyhotels as defined in California Health and Safety Code section 50519(b)(1), even
where lacking_private cooking facilities or private plumbing facilities. "Unit" does not include
lodging in a hotel or motel that meets the requirements set forth in California Civil Code section
1940(b)(2).
"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 and/or tobacco accessories.
5.56.050 Prohibition of smoking in public places and places of employment.
A. Smoking shall be prohibited in any enclosed public place, business, restaurant, or place of
employment within the city of Dublin except in the enclosed places identified in California
Labor Code Section 6404.5(d), or its successor.
B. Smoking shall be prohibited in the following enclosed places:
1. Common areas of multi-unit, multi- residence, or multi-family buildings including, but
not limited to, apartments, condominiums, retirement facilities, and nursing homes; and
2. Areas that have a common or shared air space with other enclosed areas in which
smoking is prohibited such as, without limitation, air conditioning systems, heating systems,
ventilation systems, entries, doorways, hallways, and stairways.
C. Smoking shall be prohibited in the following unenclosed places:
1. Dining areas that are part of a restaurant, business, nonprofit entity, place of
employment, or located in any public place;
2. Any City park except for a community park;
3. Any park recreation area within community parks;
4. Any place where people are using or waiting for a service, entry, or a transaction
whether or not such service includes the exchange of money including, but not limited to, ATMs,
bank teller windows, telephones, ticket lines, bus stops and cab stands;
5. Any City sponsored event, except in any area designated by the City as a smoking area.
City sponsored events may have one or more designated smoking areas of an appropriate size
provided the area is prominently marked with signs and is located the greatest distance
practicable from all areas of high pedestrian traffic, any parking areas, and any area in which
smoking is prohibited. In no case shall a designated smoking area be placed less than 25 feet
from such areas.
4
Attachment 1
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6 Smoking is prohibited in all multi-unit residence common areas, except that a landlord
may desi ng ate abortion of the outdoor area of premises as a smoking area as provided in
subparagraph (a) below.
(a) A designated smoking area:
(i) must be located a reasonable distance from any area where smoking is prohibited;
and
(ii) must be no more than twenty-five percent (25%) of the total outdoor area of the
premises for which it is designated; and
(iii) must have a clearly marked perimeter; and
(iv) must be identified by one conspicuous sign at the designated smoking area, and
one conspicuous sign elsewhere on the premises; and
(v) must not overlap with any area in which smoking is otherwise prohibited by this
chapter or other provisions of this Code state law or federal law; and
(b) If a suitable area cannot be determined an exemption from the requirements of this
section may be granted at the discretion of the City Manager, or his or her designee, provided
that the smoking area does not overlap with any area otherwise prohibited by other provisions of
this Code, state law, or federal law.
(c) Nothin sg hall prevent amulti-unit residence from desi ng ating all outdoor areas of the
premises as nonsmoking.
D. No person shall provide or place ash receptacles such as, without limitation, ashtrays or
ash cans, within an area in which smoking is prohibited, including, without limitation, inside the
perimeter of any reasonable smoking distance required by this chapter.
E. Notwithstanding the exception in subsection A of this section for enclosed places identified
in California Labor Code Section 6404.5(d) or its successor, "place of employment" shall
include retail or wholesale tobacco shops and private smokers' lounges, as such terms are
defined in California Labor Code Section 6404.5(d)(4), as well as private residences licensed as
family day care homes- regardless of their hours of operation.
5.56.055 Prohibition of smoking in multi-unit residences
A. Multi-unit residences:
1 In every Multi-Unit Residence at least fiftypercent (50%) of the units (including private
outdoor spaces associated with such units such as balconies patios and decks ,must be
designated as non-smoking units by January 1, 2011;
2 Non-smoking units must be Conti ug ously_ r~ouped together both horizontally and vertically
and physicallyseparated from smoking units to the maximum extent practicable;
3 Landlords shall within nines (90) days of the effective date of the ordinance which
adopted this section notify each unit of its implementation schedule and plan for complying with
this section;
4. Smoking isprohibited in non-smoking units in multi-unit residences;
5. Landlords may designate a higher percentage ofnon-smoking units or do so within an
earlier timeframe than required under subsection (A~ 1).
B. Required lease terms:
1. Every lease or other agreement for the occupancy of a unit in a multi-unit residence shall,
by January 1, 2011, include:
a. A clause stating that smoking is prohibited in the unit if the unit has been
designated as anon-smoking unit;
Attachment 1
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b. A clause stating that it is a material breach of the lease or agreement to (i) violate
any law re u~ latin~ smoking while on the premises; (ii) smoke in anon-smoking unit; or (iii)
smoke in any multi-unit residence common area in which smoking is prohibited by the landlord;
c. A clause stating_that all lawful occupants of the multi-unit residence are express
third-party beneficiaries of the above required clauses;
2. The California Apartment Association's form 34.0, revised 1/07, meets the requirements
for lease terms as outlined and is an option for use to comply with this section;
3. The lease or agreement terms required by Section B(1) are hereby incorporated by force
of law into any lease or other agreement for the occupant of a unit in a multi-unit residence
made on or after January 1 2011 and which does not fully comply with Section B(1);
4. A tenant who breaches the smoking_regulations of a lease or knowingly allows another
person to do so shall be liable to: (i) the landlord; and (ii) to any lawful occupant of the multi-
unit residence who is exposed to secondhand smoke as a result of that breach. A landlord shall
not be liable to andperson for a tenant's breach of smoking regulations if the landlord has fully
complied with Section B(1);
5. Failure to enforce any smoking regulation of a lease or agreement on one or more
occasions shall not constitute a waiver of the lease or agreement provisions required bps
ordinance and shall not prevent future enforcement of any such smoking regulation on another
occasion.
C. Disclosure by landlords of multi-unit residences:
1. Every landlord shall maintain a list of designated smoking and non-smoking units and a
floor plan identifying the relative position of smoking and non-smoking units. The floor plan
also shall identify the location of an~designated smoking areas. A copy of this list, floor plan,
and a copy of an~procedures for addressing smoking related complaints shall accompany every
new lease or other agreement for the occupancy of a unit in a multi-unit residence. If a copes
the list and floor plan is not so supplied, the unit subject to the lease shall be anon-smoking unit.
D. Prohibitions and duties eg nerall~
1. No Person shall smoke or knowingly permit smoking in an area of the premises under his
or her legal or de facto control in which smoking is prohibited by a lease or agreement term, by
this chapter this Code or any other state or federal law provided, however, that this prohibition
does not apply to a person who is already compelled to act under state or federal law.
Section 2. Within twelve (12) months of the effective date of this ordinance, and
annually thereafter, reports from affected landlords covering compliance, feasibility, and the
effects of the transition as outlined in this section shall be submitted to the City. The City
Council will review the necessity of continuin tg he requirement to submit annual reports at
twenty-four (241 and at forty-eight (481 months from the effective date of the ordinance which
adopted this section of the Municipal Code.
Section 3. Twenty-four (24) months from the effective date of this ordinance, the
City Council shall determine whether to increase the percentage ofnon-smoking units from at
least fifthpercent (50%) to at least seventy percent (70%) of the units (including_private outdoor
spaces associated with such units, such as balconies, patios, and decks) with the increased
oercenta~e of non-smoking units to be achieved within by forty-eight (48) months of the
effective date of this ordinance.
Attachment 1
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Section 4. Severability. The provisions of this Ordinance are severable and if any
provision, clause, sentence, word or part thereof is held illegal, invalid, unconstitutional, or
inapplicable to any person or circumstances, such illegality, invalidity, unconstitutionality, or
inapplicability shall not affect or impair any of the remaining provisions, clauses, sentences,
sections, words or parts thereof of the ordinance or their applicability to other persons or
circumstances.
Section 5. Effective Date. This Ordinance shall take effect and be enforced thirty
(30) days following its adoption.
Section 6. Posting. The City Clerk of the City of Dublin shall cause this Ordinance
to be posted in at least three (3) public places in the City of Dublin in accordance with Section
36933 of the Government Code of the State of California.
PASSED, APPROVED AND ADOPTED this day of , 2008.
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
Caroline Soto, City Clerk
7
Mayor
Attachment 1
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ORDINANCE NO.
AN ORDINANCE OF THE CITY OF DUBLIN AMENDING
CHAPTER 5.56 OF THE DUBLIN MUNICIPAL CODE
RELATING TO SMOHING POLLUTION CONTROL
WHEREAS, smoking has been shown to pose health risks to smokers; and
WHEREAS, secondhand smoke and its residual contaminants have been shown to pose
health risks to both smokers and non-smokers; and
WHEREAS, the City Council of the City of Dublin wishes to preserve and improve the
health of it residents by reducing the possibility of exposure to secondhand smoke and its
contaminates by providing housing for non-smokers within the City's apartment rental housing
complexes.
NOW, THEREFORE, the City Council of the City of Dublin does hereby ordain as follows:
Section 1. Sections 5.56.020, 5.56.040, and 5.56.050 of the Dublin Municipal Code are
amended as follows and Section 5.56.055 is added to the Dublin Municipal Code:
5.56.020 Findings and Purpose.
A. The City Council finds that:
1. Numerous studies have found that tobacco smoke is a major contributor to indoor air
pollution; and
2. Reliable studies have shown that breathing secondhand smoke is a significant health
hazard for certain population groups, including elderly people, individuals with cardiovascular
disease, and individuals with impaired respiratory function, including asthmatics and those with
obstructive airway disease; and
3. Health hazards induced by breathing secondhand smoke include lung cancer, respiratory
infection, decreased exercise tolerance, decreased respiratory function, bronchoconstriction, and
bronchospasm; and
4. Nonsmokers with allergies, respiratory diseases and those who suffer other ill effects of
breathing secondhand smoke may experience a loss of job productivity or may be forced to take
periodic sick leave because of adverse reactions to same; and
5. Numerous studies have shown that a majority of both non-smokers and smokers desire to
have restrictions on smoking in public places, places of employment, and multi-unit housing; and
6. Smoking is the number one cause of preventable home fire deaths across the nation; and
7. Cigarette butts pose a health threat to young children when ingested, which may result in
vomiting, lethargy, nausea, and gagging; and
8. Cigarette butts are a major and persistent source of litter; and
9. Nearly 87% of Californians do not smoke; and
10. A local ordinance that authorizes residential rental agreements to include a prohibition
on smoking of tobacco products within rental units is not prohibited by state law; and
B. Accordingly, the City Council finds and declares that the purposes of this chapter are:
Attachment 2
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1. To protect the public health and welfare by prohibiting smoking in public places except
in designated smoking areas, and by regulating smoking in places of employment; and
2. To strike a reasonable balance between the needs of smokers and the need of non-
smokers to breathe smoke-free air, and to recognize that, where these needs conflict, the need to
breathe smoke-free air shall have priority; and
3. To provide for the public health, safety, and welfare by discouraging the inherently
dangerous behavior of smoking around non-tobacco users; by protecting children from exposure
to smoking where they live and play; and by protecting the public from nonconsensual exposure
to secondhand smoke in and around their homes.
5.56.040 Definitions.
The following words and phrases, whenever used in this chapter, shall be construed as defined
in this section:
"Bar" means an area that is devoted to the serving of alcoholic beverages for consumption by
guests on the premises and in which the service of food is incidental to the consumption of
beverages and in which persons younger than twenty-one (21) years of age are at all times
excluded.
"Business" means any sole proprietorship, partnership, joint venture, corporation or other
business entity formed for profit-making purposes, including private residences that are licensed
to provide child care, adult care, and other health care related services, retail establishments
where goods or services are sold as well as professional corporations and other entities where
legal, medical, dental, engineering, architectural or other professional services are delivered.
"Dining area" means any area containing a counter or table upon which meals are served or
any area designed, established, or regularly used for consuming meals.
"City sponsored event" means an event which the City of Dublin plans, administers,
coordinates, and finances, and which is held upon property owned by the City of Dublin.
"Community Park" means Dougherty Hills Dog Park, Dublin Heritage Center, Dublin Historic
Park, Dublin Sports Grounds, Dublin Swim Center, Emerald Glen Park, Fallon Sports Park,
Shannon Park, and any new park constructed after the effective date of this Ordinance that is
greater than eight (8) acres in size.
"Employee" means any person who is employed by any employer or hired as an independent
contractor in consideration for direct or indirect monetary wages or profit, and any person who
volunteers his or her services for a nonprofit entity.
"Employer" means any person, partnership, corporation or nonprofit entity, including a
municipal corporation, who employs the services of one or more persons.
"Enclosed" means closed in by roof and four walls with appropriate openings for ingress and
egress.
"Landlord" means any Person who owns real property leased as residential property, any
Person who lets residential property, or any Person who manages such property, except that
"Landlord" does not include sublessors.
"Multi-Unit Residence" means a Premises that contains sixteen (16) or more Units for rent
"Multi-Unit Residence Common Area" means any outdoor area of aMulti-Unit Residence
accessible to and usable by residents of different Units, including but not limited to play areas,
common cooking and eating areas, swimming pools, common courtyards, paths and walkways,
and parking areas.
2
Attachment 2
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"Nonprofit entity" means any corporation, unincorporated association or other entity created
for charitable, educational, political, social or other similar purposes, the net proceeds from the
operations of which are committed to the promotion of the objects or purposes of the
organization and not to private financial gain. A public agency is not a nonprofit entity within the
meaning of this section.
"Park recreation area" means any and all children's play areas, playgrounds, swimming areas,
sports fields, sports courts, skate parks, and picnic areas.
"Person" means any natural person, partnership, cooperative association, corporation, personal
representative, receiver, trustee, assignee, or any other legal entity.
"Place of employment" means any area under the control of a public or private employer that
employees may have cause to enter during the normal course of employment, including, but not
limited to, work areas, vehicles, employee lounges and restrooms, conference rooms and
classrooms, cafeterias and hallways, except that a private residence is not a place of employment
unless it is used as a child care or a health care facility.
"Premises" means a piece of land and any improvements upon it such as is usually described
in a deed, deed of trust or mortgage, and includes legally separate but contiguous pieces of land
that are owned by the same person or by multiple persons owning and operating the land under
common control.
"Public place" means any area in which the public is invited or in which the public is
permitted, including, but not limited to: banks, educational facilities, health facilities, public
transportation facilities, reception areas, restaurants, retail food production and marketing
establishments, retail stores, theaters and waiting rooms.
"Reasonable distance" means a distance that ensures that occupants of an area in which
smoking is prohibited are not exposed to secondhand smoke created by smokers outside the area.
Except as otherwise provided in this Chapter, this distance shall be a minimum of twenty (20)
feet unless the application of the twenty (20) foot minimum would place the smoker in a
potentially unsafe location, in which case a "reasonable distance" shall be a location closer than
twenty feet which does not place the smoker in a potentially unsafe location.
"Restaurant" means any coffee shop, cafeteria, tavern, sandwich stand, soda fountain, private
or public school cafeteria, and any other eating establishment, organization, club, boardinghouse
or guest house, which gives or offers food for sale to the public, guests, patrons, members or
employees.
"Retail tobacco store" means a retail store utilized primarily for the sale of tobacco products
and accessories.
"Secondhand smoke" means the tobacco smoke created by burning or carrying any lighted
pipe, cigar, or cigarette of any kind, and the smoke exhaled by an individual who engages in
smoking.
"Self-service display" means the open display of tobacco products or tobacco paraphernalia in
a manner that is accessible to the general public without the assistance of the retailer or employee
of the retailer.
"Smoking" means the consumption of tobacco by inhaling, exhaling, burning or carrying any
lighted pipe, cigar or cigarette of any kind.
"Tobacco paraphernalia" means cigarette papers or wrappers, pipes, holders of smoking
materials of all types, cigarette rolling machines, and any other item designed for the smoking or
ingestion of tobacco products.
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"Tobacco product" means any substance containing tobacco leaf, including but not limited to
cigarettes, cigars,. pipe tobacco, snuff, chewing tobacco, dipping tobacco, bidis, or any other
preparation of tobacco.
"Tobacco retailer" means any person who sells, offers for sale, or does or offers to exchange
for any form of consideration tobacco, tobacco products, or tobacco paraphernalia. "Tobacco
retailing" shall mean the doing of any of these things. This definition is without regard to the
quantity of tobacco, tobacco products, or tobacco paraphernalia sold, offered for sale, exchanged,
or offered for exchange.
"Unit" means: (1) a dwelling space consisting of complete independent living facilities for one
or more persons, including, for example, permanent provisions for living and sleeping, and any
private outdoor spaces like balconies and patios; and (2) senior citizen housing and single room
occupancy hotels, as defined in California Health and Safety Code section 50519(b)(1), even
where lacking private cooking facilities or private plumbing facilities. "Unit" does not include
lodging in a hotel or motel that meets the requirements set forth in California Civil Code section
1940(b)(2).
"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 and/or tobacco accessories.
5.56.050 Prohibition of smoking in public places and places of employment.
A. Smoking shall be prohibited in any enclosed public place, business, restaurant, or place of
employment within the city of Dublin except in the enclosed places identified in California
Labor Code Section 6404.5(d), or its successor.
B. Smoking shall be prohibited in the following enclosed places:
1. Common areas of multi-unit, multi- residence, or multi-family buildings including, but
not limited to, apartments, condominiums, retirement facilities, and nursing homes; and
2. Areas that have a common or shared air space with other enclosed areas in which
smoking is prohibited such as, without limitation, air conditioning systems, heating systems,
ventilation systems, entries, doorways, hallways, and stairways.
C. Smoking shall be prohibited in the following unenclosed places:
1. Dining areas that are part of a restaurant, business, nonprofit entity, place of
employment, or located in any public place;
2. Any City park except for a community park;
3. Any park recreation area within community parks;
4. Any place where people are using or waiting for a service, entry, or a transaction
whether or not such service includes the exchange of money including, but not limited to, ATMs,
bank teller windows, telephones, ticket lines, bus stops and cab stands;
5. Any City sponsored event, except in any area designated by the City as a smoking area.
City sponsored events may have one or more designated smoking areas of an appropriate size
provided the area is prominently marked with signs and is located the greatest distance
practicable from all areas of high pedestrian traffic, any parking areas, and any area in which
smoking is prohibited. In no case shall a designated smoking area be placed less than 25 feet
from such areas.
6. Smoking is prohibited in all multi-unit residence common areas, except that a landlord
may designate a portion of the outdoor area of premises as a smoking area as provided in
subparagraph (a) below.
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(a) A designated smoking area:
(i) must be located a reasonable distance from any area where smoking is prohibited;
and '
(ii) must be no more than twenty-five percent (25%) of the total outdoor area of the
premises for which it is designated; and
(iii) must have a clearly marked perimeter; and
(iv) must be identified by one conspicuous sign at the designated smoking area, and
one conspicuous sign elsewhere on the premises; and
(v) must not overlap with any area in which smoking is otherwise prohibited by this
chapter or other provisions of this Code, state law, or federal law; and
(b) If a suitable area cannot be determined, an exemption from the requirements of this
section may be granted at the discretion of the City Manager, or his or her designee, provided
that the smoking area does not overlap with any area otherwise prohibited by other provisions of
this Code, state law, or federal law.
(c) Nothing shall prevent amulti-unit residence from designating all outdoor areas of the
premises as nonsmoking.
D. No person shall provide or place ash receptacles such as, without limitation, ashtrays or
ash cans, within an area in which smoking is prohibited, including, without limitation, inside the
perimeter of any reasonable smoking distance required by this chapter.
E. Notwithstanding the exception in subsection A of this section for enclosed places identified
in California Labor Code Section 6404.5(d) or its successor, "place of employment" shall
include retail or wholesale tobacco shops and private smokers' lounges, as such terms are
defined in California Labor Code Section 6404.5(d)(4), as well as private residences licensed as
family day care homes regardless of their hours of operation.
5.56.055 Prohibition of smoking in multi-unit residences
A. Multi-unit residences:
1. In every Multi-Unit Residence, at least fifty percent (50%) of the units (including private
outdoor spaces associated with such units, such as balconies, patios, and decks), must be
designated as non-smoking units by January 1, 2011;
2. Non-smoking units must be contiguously grouped together both horizontally and vertically
and physically separated from smoking units to the maximum extent practicable;
3. Landlords shall, within ninety (90) days of the effective date of the ordinance which
adopted this section, notify each unit of its implementation schedule and plan for complying with
this section;
4. Smoking is prohibited in non-smoking units in multi-unit residences;
5. Landlords may designate a higher percentage ofnon-smoking units or do so within an
earlier timeframe than required under subsection (A)(1).
B. Required lease terms:
1. Every lease or other agreement for the occupancy of a unit in a multi-unit residence shall,
by January 1, 2011, include:
a. A clause stating that smoking is prohibited in the unit if the unit has been
designated as anon-smoking unit;
b. A clause stating that it is a material breach of the lease or agreement to (i) violate
any law regulating smoking while on the premises; (ii) smoke in anon-smoking unit; or (iii)
smoke in any multi-unit residence common area in which smoking is prohibited by the landlord;
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c. A clause stating that all lawful occupants of the multi-unit residence are express
third-party beneficiaries of the above required clauses;
2. The California Apartment Association's form 34.0, revised 1/07, meets the requirements
for lease terms as outlined and is an option for use to comply with this section;
3. The lease or agreement terms required by Section B(1) are hereby incorporated by force
of law into any lease or other agreement for the occupancy of a unit in a multi-unit residence
made on or after January 1, 2011 and which does not fully comply with Section B(1);
4. A tenant who breaches the smoking regulations of a lease or knowingly allows another
person to do so shall be liable to: (i) the landlord; and (ii) to any lawful occupant of the multi-
unit residence who is exposed to secondhand smoke as a result of that 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 Section B(1);
5. Failure to enforce any smoking regulation of a lease or agreement on one or more
occasions shall not constitute a waiver of the lease or agreement provisions required by this
ordinance and shall not prevent future enforcement of any such smoking regulation on another
occasion.
C. Disclosure by landlords of multi-unit residences:
1. Every landlord shall maintain a list of designated smoking and non-smoking units and a
floor plan identifying the relative position of smoking and non-smoking units. The floor plan
also shall identify the location of any designated smoking areas. A copy of this list, floor plan,
and a copy of any procedures for addressing smoking related complaints shall accompany every
new lease or other agreement for the occupancy of a unit in a multi-unit residence. If a copy of
the list and floor plan is not so supplied, the unit subject to the lease shall be anon-smoking unit.
D. Prohibitions and duties generally:
1. No Person shall smoke or knowingly permit smoking in an area of the premises under his
or her legal or de facto control in which smoking is prohibited by a lease or agreement term, by
this chapter, this Code, or any other state or federal law provided, however, that this prohibition
does not apply to a person who is already compelled to act under state or federal law.
Section 2. Within twelve (12) months of the effective date of this ordinance, and
annually thereafter, reports from affected landlords covering compliance, feasibility, and the
effects of the transition as outlined in this section shall be submitted to the City. The City
Council will review the necessity of continuing the requirement to submit annual reports at
twenty-four (24) and at forty-eight (48) months from the effective date of the ordinance which
adopted this section of the Municipal Code_
Section 3. Twenty-four (24) months from the effective date of this ordinance, the
City Council shall determine whether to increase the percentage ofnon-smoking units from at
least fifty percent (50%) to at least seventy percent (70%) of the units (including private outdoor
spaces associated with such units, such as balconies, patios, and decks) with the increased
percentage ofnon-smoking units to be achieved within by forty-eight (48) months of the
effective date of this ordinance.
Section 4. Severability. The provisions of this Ordinance are severable and if any
provision, clause, sentence, word or part thereof is held illegal, invalid, unconstitutional, or
inapplicable to any person or circumstances, such illegality, invalidity, unconstitutionality, or
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inapplicability shall not affect or impair any of the remaining provisions, clauses, sentences,
sections, words or parts thereof of the ordinance or their applicability to other persons or
circumstances.
Section 5. Effective Date. This Ordinance shall take effect and be enforced thirty
(30) days following its adoption.
Section 6. Posting. The City Clerk of the City of Dublin shall cause this Ordinance
to be posted in at least three (3) public places in the City of Dublin in accordance with Section
36933 of the Government Code of the State of California.
PASSED, APPROVED AND ADOPTED this day of , 2008.
AYES:
NOES:
ABSENT:
ABSTAIN:
Mayor
ATTEST:
Caroline Soto, City Clerk
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