Smoking Ordinance:

 

For a quick snapshot of our Smoking Ordinance, click on the link below:

 

http://www.belmont.gov/Upload/Document/D240003491/DisplayAd.pdf

 

For the complete smoking ordinance, click on the link below:

http://www.belmont.gov/Upload/Document/D240003575/SmokingOrdinanceFINAL.pdf

 

Or below is the current smoking ordinance in its entirety:

 

 

 

Chapter 20.5  REGULATION OF SMOKING*


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*Editor's note:  Section II of Ord. No. 1032, adopted Oct. 9, 2007, amended Ch. 20.5 to read as herein set out. Prior to such amendment, Ch. 20.5 consisted of 20.5-1--20.5-24, which pertained to similar subject matter as enacted by Ord. No. 766, 1, adopted May 12, 1987. 


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Sec. 20.5-1.  Definitions.

The following words and phrases, whenever used in this chapter, shall have the meanings defined in this section unless the context clearly requires otherwise:

(a)   "Business"  means any sole proprietorship, partnership, joint venture, corporation, association, or other entity formed for profit-making purposes or that has an employee, as defined in this section. 

(b)   A"common interest development"  means a development as defined in California Civil Code Section 1351(c), which includes condominium projects (including projects commonly known as townhomes or townhouses), community apartment projects, a planned development, or a stock cooperative. 

(c)   "Employee"  means any person who is employed; retained as an independent contractor by any employer, as defined in this section; or any person who volunteers his or her services for an employer, association, nonprofit, or volunteer entity. 

(d)   "Employer"  means any person, partnership, corporation, association, nonprofit or other entity who employs or retains the service of one or more persons, or supervises volunteers. 

(e)   "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. 

(f)   "Multi-unit residence"  means a building or portion thereof that contains more than one dwelling unit including but not limited to apartments, common interest development, senior citizen housing, nursing homes, and single room occupancy hotels. 

(g)   "Multi-unit residence common area"  means any indoor or outdoor area of a multi-unit residence accessible to and usable by residents of different units, including but not limited to halls and stairwells, paths, lobbies, laundry rooms, common cooking areas, outdoor eating areas, play areas, swimming pools, and parking areas. 

(h)   "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 public agency is not a nonprofit entity within the meaning of this section. 

(i)   "Person"  means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity except the City of Belmont

(j)   "Place of employment"  means any area under the legal or de facto control of an employer, business or nonprofit entity that an employee or the general public may have cause to enter in the normal course of operations, but regardless of the hours of operation, including, but not limited to: construction sites, taxis, employee lounges and breakrooms, conference and banquet rooms, bingo and gaming facilities, long-term health facilities, warehouses, retail and wholesale tobacco shops, and private residences that are used as child care or health care facilities subject to licensing requirements. 

(k)   "Public place"  means any place, public or private, open to members of the general public regardless of any fee or age requirement, including, for example, plazas, parking lots, malls, stadiums, parks, playgrounds, farmers markets, fairs, and taxis. 

(l)   "Service area"  means any area designed to be or regularly used by one or more persons to receive or wait to receive a service, enter a public place, or make 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. 

(m)   "Significant tobacco retailer"  means any tobacco retailer that derives seventy-five (75) percent or more of gross sales receipts from the sale or exchange of tobacco products and tobacco paraphernalia. 

(n)   "Smoking"  or  to "smoke"  means possessing a lighted tobacco product, lighted tobacco paraphernalia, or any other lighted weed or plant (including but not limited to, a lighted pipe, lighted hookah pipe, lighted cigar, or lighted cigarette of any kind), or the lighting of a tobacco product, tobacco paraphernalia, or any other weed or plant (including but not limited to, a pipe, a hookah pipe, cigar, or cigarette of any kind). 

(o)   "Tobacco product"  means any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, snus, bidis, or any other preparation of tobacco; and any product or formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body, but does not include any cessation product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco dependence. 

(p)   "Unit"  means: (1) a dwelling space consisting of essentially complete independent living facilities for one or more persons, including, for example, permanent provisions for living and sleeping, and any private outdoor spaces such as balconies, decks, 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). 

(Ord. No. 1032, II, 10-9-07)


Sec. 20.5-2.  Secondhand smoke generally.

For all purposes within the City of Belmont, nonconsensual exposure to secondhand smoke is a nuisance, and the uninvited presence of secondhand smoke on property is a nuisance and a trespass.

(Ord. No. 1032, II, 10-9-07)


Sec. 20.5-3.  Smoking prohibitions.

(a)   Smoking shall be prohibited in the following indoor and outdoor places within the City of Belmont, except in places listed in subsection (b) below:

(1)   Public places;

(2)   Places of employment; and

(3)   Multi-unit residence common areas; except that a landlord or common interest development may designate a portion of the outdoor area a smoking area. A designated smoking area:

(i)   must be located at least twenty (20) feet from any operable window or door used by the public of an indoor area of a multi-unit residence where smoking is prohibited;

(ii)   must not include, and must be at least twenty (20) feet from, outdoor areas primarily used by children including, but not limited to, areas improved or designated for play or swimming;

(iii)   must be no more than twenty-five (25) percent of the total outdoor area of the premises for which it is designated;

(iv)   must have a clearly marked perimeter;

(v)   must be identified by conspicuous signs; and

(vi)   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.

(4)   Individual units of multi-unit residences, if such units share at least one common floor or ceiling with another such unit.

(5)   Service areas;

(b)   Unless otherwise prohibited by law, smoking is not restricted by this chapter in the following places:

(1)   By performers during theatrical productions, if smoking is an integral part of the story in the theatrical production;

(2)   Detached single-family homes and the lots they are sited on, except those used as a child care or health care facility subject to licensing requirements;

(3)   Up to ten (10) percent of hotel and motel guest rooms, if the hotel or motel permanently designates particular guest rooms as nonsmoking rooms such that ninety (90) percent or more of its guest rooms are nonsmoking and ashtrays and matches are permanently removed from such nonsmoking rooms. Permanent "no smoking" signage shall be posted in nonsmoking rooms;

(4)   Significant tobacco retailers, if at all times minors are prohibited from entering the store;

(5)   Individual units of multi-unit residences which do not share any common floors or ceilings with any other such unit;

(6)   Any city-designated outdoor smoking areas;

(7)   Automobiles;

(8)   On streets and sidewalks, unless being used as outdoor workplaces or at city-sponsored events such as parades and fairs.

(c)   Nothing in this chapter shall be construed to prohibit smoking in any area in which such smoking is already prohibited by state or federal law unless the applicable state or federal law does not preempt additional local regulation.

(Ord. No. 1032, II, 10-9-07)


Sec. 20.5-4.  Phase-in period for non-smoking units in multi-unit residences.

A unit shall not be subject to the smoking restrictions in section 20.5-3(a)(4) until fourteen (14) months after the effective date of this chapter, or until the legal occupants on the effective date of this chapter vacate the unit, whichever occurs first.

(Ord. No. 1032, II, 10-9-07)


Sec. 20.5-5.  Required lease terms.

(a)   For legal occupants on the effective date of this chapter, lease or rental agreement renewals for the occupancy of a unit in a multi-unit residence in which smoking is prohibited shall include:

(1)   A clause stating that smoking is prohibited in the unit if the unit has been designated as a non-smoking unit;

(2)   A clause stating that it is a material breach of the lease or agreement to (i) violate any law regulating smoking while on the premises; (ii) smoke in violation of a non-smoking lease term, such as smoking in a non-smoking unit; or (iii) smoke in any multi-unit residence common area in which smoking is prohibited by the landlord; and

(3)   A clause stating that all lawful occupants of the multi-unit residence are express third-party beneficiaries of the above required clauses.

(4)   A clause stating that terms (1)--(3) become effective fourteen (14) months after the effective date of this chapter, unless the landlord specifies an earlier effective date;

(b)   For new tenants not in occupancy on the effective date of this chapter, every lease or other rental agreement for the occupancy of a unit in a multi-unit residence in which smoking is prohibited shall include:

(1)   A clause stating that smoking is prohibited in the unit if the unit has been designated as a non-smoking unit;

(2)   A clause stating that it is a material breach of the lease or agreement to (i) violate any law regulating smoking while on the premises; (ii) smoke in violation of a non-smoking lease term, such as smoking in a non-smoking unit; or (iii) smoke in any multi-unit residence common area in which smoking is prohibited by the landlord; and

(3)   A clause stating that all lawful occupants of the multi-unit residence are express third-party beneficiaries of the above required clauses.

(c)   The lease or agreement terms required by subsection (a) or (b) are hereby incorporated by force of law into any lease or other agreement for the occupancy of a unit in a multi-unit residence made on or after the effective date of the ordinance which adopted this section and which does not fully comply with subsection (a) or (b).

(d)   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 subsection (a).

(e)   Failure to enforce any smoking regulation of a lease or agreement on one or more occasions shall not constitute a waiver of the lease or agreement provisions required by this ordinance and shall not prevent future enforcement of any such smoking regulation on another occasion.

(Ord. No. 1032, II, 10-9-07)


Sec. 20.5-6.  Reasonable smoking distance required--20 feet.

(a)   Smoking in outdoor areas shall be prohibited within twenty (20) feet of an entrance or exit used by the public, or operable window of an indoor area in which smoking is prohibited, except while actively passing on the way to another destination and so long as smoke does not enter any indoor area in which smoking is prohibited.

(b)   Smoking in outdoor areas shall be prohibited within twenty (20) feet from any outdoor area in which smoking is prohibited by this chapter except while actively passing on the way to another destination.

(Ord. No. 1032, II, 10-9-07)


Sec. 20.5-7.  Prohibitions and duties generally.

(a)   No person, employer, business, nonprofit entity, landlord, or common interest development shall knowingly permit the smoking of tobacco products in an area which is under the legal or de facto control of the person, employer, business, nonprofit entity, landlord, or common interest development and in which smoking is prohibited by law and the person, employer, business, nonprofit entity, landlord, or common interest development is not otherwise compelled to act under state or federal law.

(b)   No person, employer, business, nonprofit entity, landlord, or common interest development shall knowingly or intentionally permit the presence or placement of ash receptacles, such as, for example, ash trays or ash cans, within an area which is under the legal or de facto control of the person, employer, business, nonprofit entity, landlord, or common interest development and in which smoking is prohibited, including, without limitation, inside the perimeter of any reasonable distance required by this chapter.

(c)   Notwithstanding any other provision of this chapter, any owner, employer, business, nonprofit entity, landlord, common interest development or other person who controls any property, establishment, place of employment, public place, or multi-unit residence regulated by this chapter may declare any part of such area in which smoking would otherwise be permitted to be a nonsmoking area.

(d)   "No Smoking" signs, with letters of no less than one inch in height or the international "No Smoking" symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle crossed by a red bar) shall be clearly, sufficiently, and conspicuously posted in every indoor and outdoor place in which smoking is prohibited by this chapter, by the person, employer, business, nonprofit entity, landlord, or common interest development that has legal or de facto control of such place. At least one sign with the City of Belmont phone number where complaints can be directed must be conspicuously posted in every place in which smoking is prohibited. For purposes of this chapter, the city manager or designee shall be responsible for the posting of signs in regulated facilities owned or leased in part by the City of Belmont. Notwithstanding this provision, the presence or absence of signs shall not be a defense to the violation of any other provision of this chapter.

(Ord. No. 1032, II, 10-9-07)


Sec. 20.5-8.  Medical marijuana.

Notwithstanding any other provision of this chapter, smoking marijuana for medical purposes as permitted by California Health and Safety Code sections 11362.7 et seq. in any unit of a multi-unit residence is not prohibited by this chapter. Notwithstanding the forgoing, such use of marijuana may be prohibited by other provisions of this Code, state law, or federal law.

(Ord. No. 1032, II, 10-9-07)


Sec. 20.5-9.  Penalties and enforcement.

(a)   The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity.

(b)   Each violation of this chapter by a person because of the person's smoking is an infraction subject to a one hundred dollar ($100.00) fine. Other violations of this chapter constitute misdemeanors punishable as provided in Section 1-8 of the Belmont Municipal Code or may, in the discretion of the city attorney, be prosecuted as infractions if the interests of justice so require. Any peace officer or code enforcement official may enforce this chapter.

(c)   Violations of this chapter are subject to a civil action brought by the city, punishable by a civil fine not less than two hundred fifty dollars ($250.00) and not exceeding one thousand dollars ($1,000.00) per violation.

(d)   No person shall intimidate, harass, or otherwise retaliate against any person who seeks to attain compliance with this chapter. Moreover, no Person shall intentionally or recklessly expose another person to secondhand smoke in response to that person's effort to achieve compliance with this chapter. Violation of this subsection shall constitute a misdemeanor.

(e)   Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter.

(f)   Any violation of this chapter is hereby declared to be a nuisance.

(g)   In addition to other remedies provided by this chapter or by other law, any violation of this chapter may be remedied by a civil action brought by the city attorney, including, but not limited to, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.

(Ord. No. 1032, II, 10-9-07)