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The following words and phrases, whenever used in this chapter, shall have the meanings defined in this section, unless the context clearly requires otherwise:
BUSINESS. Any sole proprietorship, partnership, joint venture, corporation, association, or other entity formed for profit-making purposes.
COMMON AREA. Every enclosed area or unenclosed area of a multi-unit residence that residents of more than one Unit of that multi-unit residence are entitled to enter or use, including, for example, halls and paths, lobbies and courtyards, elevators and stairs, community rooms and playgrounds, gym facilities and swimming pools, parking garages and parking lots, shared restrooms, shared laundry rooms, shared cooking areas, and shared eating areas.
DESIGNATED SMOKING AREA. A designated area on-site at an eligible cannabis retail facility, where customers may smoke cannabis and cannabis products.
DESIGNATED SMOKING ROOM. A designated room within an eligible cannabis retail facility, where customers may smoke cannabis and cannabis products.
DINING AREA. Any area, including streets and sidewalks, which is available to or customarily used by the general public or an employee, and which is designed, established, or regularly used for consuming food or drink.
ELIGIBLE BAR. A business operating lawfully that maintains an area on the business’s property compliant with Cal. Labor Code § 6404.5 (prohibiting smoking in places of employment) for customers in which smoking is not prohibited by the business; and possesses a license to serve alcoholic beverages from the California Department of Alcoholic Beverage Control that prohibits individuals under the age of 21 years from entering and remaining, such as, for example, license type 48.
EMPLOYEE. Any person who is employed or retained as an independent contractor by any employer or nonprofit entity in consideration for direct or indirect monetary wages or profit, or any person who volunteers his or her services for an employer or nonprofit entity.
EMPLOYER. Any business or nonprofit entity that retains the service of one or more employees.
ENCLOSED AREA. 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 boundaries of any height, whether or not those boundaries include vents or other openings; or
(2) Four walls or other vertical boundaries that exceed six feet in height, whether or not those boundaries include vents or other openings.
LANDLORD. Any person who owns property let for residential use, any person who lets residential property, and any person who manages such property, except that LANDLORD does not include a master tenant who sublets a unit as long as the master tenant sublets only a single unit of a multi-unit residence.
MULTI-UNIT RESIDENCE. Property containing two or more units, except the following specifically excluded types of housing:
(1) A hotel or motel that meets the requirements set forth in Cal. Civil Code § 1940(b)(2);
(2) A mobile home park;
(3) A campground;
(4) A single-family home;
(5) A single-family home with a detached or attached in-law or second unit when permitted pursuant to Cal. Gov’t Code §§ 65852.1, 65852.150, 65852.2 or an ordinance of the city adopted pursuant to those sections.
NONPROFIT ENTITY. Any entity that meets the requirements of Cal. Corporations Code § 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.
NONSMOKING AREA. Any enclosed area or unenclosed area of a multi-unit residence in which smoking is prohibited by: (1) this chapter or other law; (2) by binding agreement relating to the ownership, occupancy, or use of real property; or (3) by designation of a person with legal control over the area. In the case of a smoking prohibition established only by private agreement or designation and not by this chapter or other law, it shall not be a violation of this chapter for a person to engage in smoking or to allow smoking in that area unless: (1) the person knows that smoking is not permitted; or (2) a reasonable person would know that smoking is not permitted.
PERSON. Any natural person, business, cooperative association, nonprofit entity, personal representative, receiver, trustee, assignee, or any other legal entity including government agencies.
PLACE OF EMPLOYMENT. Any area under the legal or de facto control of an employer, that an employee or the general public may have cause to enter in the normal course of the operations, regardless of the hours of operation including, for example, indoor and outdoor work areas, construction sites, vehicles used in employment or for business purposes, taxis, hookah bars, retail tobacco shops, and private residences that are used as child care or health care facilities subject to licensing requirements.
PUBLIC PLACE. Any place, publicly or privately owned, which is open to the general public regardless of any fee or age requirement.
REASONABLE DISTANCE. A distance of 30 feet in any direction from an area in which smoking is prohibited.
RECREATIONAL AREA. Any area that is owned or operated by the city and open to the general 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, horseback riding trails, swimming pools, roller- and ice-skating rinks, skateboard parks, and amusement parks.
SERVICE AREA. 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 information kiosks, automatic teller machines (ATMs), ticket lines, bus stops or shelters, mobile vendor lines or cab stands.
SMOKE. 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 by-products, 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, electronic cigarette vapors, marijuana smoke, and crack cocaine smoke.
SMOKING. Engaging in an act that generates smoke, such as, for example: possessing a lighted pipe, a lighted hookah pipe, an operating electronic cigarette, a lighted cigar, or a lighted cigarette of any kind; or lighting or igniting a pipe, a hookah pipe, a cigar, or a cigarette of any kind.
UNENCLOSED AREA. Any area that is not an enclosed area.
UNIT. A 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. UNIT includes but is not limited to an apartment; a condominium; a townhouse; a room in a long-term health care facility, assisted living facility, or hospital; a hotel or motel room; a room in a single room occupancy ("SRO") facility; a room in a homeless shelter; a mobile home; a camper vehicle or tent; a single-family home; and an in-law or second unit.
(Ord. 753-C.S., passed 7-20-10; Am. Ord. 760-C.S., passed 12-7-10; Am. Ord. 884-C.S., passed 4-16-19)
(A) Smoking is prohibited in the enclosed areas of the following places within the city, except in places listed in division (C) below, and except places where smoking is already prohibited by state or federal law, in which case those laws apply:
(1) Places of employment;
(2) Public places;
(3) Common areas.
(B) Smoking is prohibited in the unenclosed areas of the following places within the city, except places where smoking is already prohibited by state or federal law, in which case those laws apply:
(1) Recreational areas;
(2) Service areas;
(3) Dining areas;
(4) Places of employment;
(5) Common areas, provided that a person with legal control over a common area may designate a portion of the unenclosed area of the common area as a designated smoking area if the area meets all of the following criteria:
(a) The area must be located a reasonable distance from any nonsmoking area. A person with legal control over a common area in which a designated smoking area has been designated shall modify, relocate or eliminate that designated smoking area so as to maintain compliance with the requirements of this division as laws change, as binding agreements are created, and as nonsmoking areas on neighboring property are established.
(b) The area must not include, and must be 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, and school campuses;
(c) The area must be no more than 10% of the total unenclosed area of the multi-unit residence for which it is designated;
(d) The area must have a clearly marked perimeter;
(e) The area must be identified by conspicuous signs;
(f) The area must be completely within an unenclosed area; and
(g) The area must 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;
(6) All exclusive-use unenclosed areas associated with a unit, such as, for example, a private balcony, porch, deck, or patio;
(7) On and within 100 feet of the Eureka Boardwalk, which is located from the foot of "C" to the foot of "G" Streets, the Old Town Gazebo Plaza, and Clark Plaza, located at the corner of 3rd and E Street; and
(8) Other public places, when being used for a public event, including a farmers' market, parade, craft fair, festival, Arts Alive, or any other event which may be attended by the general public.
(9) Smoking is permitted in the area of an eligible bar that is compliant with Cal. Labor Code § 6404.5 (prohibiting smoking in places of employment).
(C) Unless otherwise prohibited by law, smoking is permitted in the following enclosed areas:
(1) Areas as designated by and in accordance with Cal. Labor Code § 6404.5; and
(2) Eligible cannabis retail facilities with a designated smoking room or designated smoking area.
(D) Nothing in this chapter prohibits any person, employer, or nonprofit entity with legal control over any property from prohibiting smoking on any part of such property, even if smoking is not otherwise prohibited in that area.
(E) The City Manager or his or her designee shall engage in an ongoing educational program to explain and clarify the purposes and requirements of this chapter, as well as providing guidance to persons, landlords, employers, and nonprofit entities about compliance. However, lack of such education shall not be a defense to a violation of this chapter.
(Ord. 753-C.S., passed 7-20-10; Am. Ord. 760-C.S., passed 12-7-10; Am. Ord. 884-C.S., passed 4-16-19) Penalty, see § 97.07
(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, except while actively passing on the way to another destination and provided smoke does not enter any 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 § 97.02, except while actively passing on the way to another destination, and provided smoke does not enter any unenclosed area in which smoking is prohibited.
(Ord. 753-C.S., passed 7-20-10) Penalty, see § 97.07
A landlord of a multi-unit residence with less than 100% nonsmoking units shall provide to every prospective tenant, prior to entering into a new lease or other rental agreement for the occupancy of a unit, a diagram depicting the location of the designated nonsmoking units in relation to all other units and any designated smoking areas.
(Ord. 753-C.S., passed 7-20-10) Penalty, see § 97.07
(A) The provisions of this chapter are restrictive only and establish no new rights for a person who engages in smoking. Notwithstanding (i) any provision of this chapter or other provisions of this code, (ii) any failure by any person to restrict smoking under this chapter, or (iii) 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, non-consensual exposure to smoke is a nuisance, and the uninvited presence of smoke on property is a nuisance and a trespass.
(Ord. 753-C.S., passed 7-20-10)
(A) No person, landlord, employer, or nonprofit entity shall knowingly permit smoking in an area which is under the legal or de facto control of the person, landlord, employer or nonprofit entity and in which smoking is prohibited by law, unless otherwise required by state or federal law.
(B) For purposes of division (A) of this section, a person, landlord, employer, or nonprofit entity has not acted knowingly or intentionally in violation of division (A) of this section if he, she, or it has taken the following reasonable steps to prevent smoking in an area which is under the legal or de facto control of the person, landlord, employer, or nonprofit entity:
(1) Posted clear and prominent "No Smoking" or "Smokefree" signs as required by division (E) of this section, below;
(2) Removed all ash receptacles, such as, for example, ash trays or ash cans, as required by division (C) of this section, below; and
(3) Requested that an individual refrain from smoking who is smoking in violation of this chapter and in an area which is under the legal or de facto control of the person, landlord, employer or nonprofit entity.
(C) No person, landlord, employer, or nonprofit entity shall knowingly or intentionally permit the presence or placement of ash receptacles, such as, for example, ash trays or ash cans, within an area under the legal or de facto control of the person, landlord, employer or nonprofit entity and in which smoking is prohibited by law, including, without limitation, within a reasonable distance required by this chapter from any area in which smoking is prohibited. Notwithstanding the foregoing, the presence of ash receptacles in violation of this division (C) shall not be a defense to a charge of smoking in violation of any provision of this chapter.
(D) No person shall dispose of used smoking or tobacco product waste within the boundaries of an area in which smoking is prohibited, including inside the perimeter of any reasonable distance required by this chapter.
(E) A person, landlord, employer, or nonprofit entity that has legal or de facto control of an enclosed or unenclosed area in which smoking is prohibited by this chapter shall post a clear, conspicuous and unambiguous "No Smoking" or "Smokefree" sign at each point of ingress to the area, and in at least one other conspicuous point within the area. The signs shall have letters of no less than one inch in height and shall include 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). Signs posted on the exterior of buildings to comply with this section shall include the reasonable distance requirement set forth in § 97.03. At least one sign with Humboldt County Department of Health and Human Services, Public Health Branch's phone number [268-2132] where complaints can be directed must be conspicuously posted in each place in which smoking is prohibited. For purposes of this section, the City Manager or his or her designee shall be responsible for the posting of signs in regulated facilities owned or leased in whole or in part by the city. Notwithstanding this provision, the presence or absence of signs shall not be a defense to a charge of smoking in violation of any other provision of this chapter.
(F) No person, landlord, employer, or nonprofit entity shall intimidate, threaten any reprisal, or effect any reprisal, for the purpose of retaliating against another person who seeks to attain compliance with this chapter.
(G) 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.
(Ord. 753-C.S., passed 7-20-10) Penalty, see § 97.07
(A) The remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity.
(B) Each incident of smoking in violation of this chapter is an infraction subject to a $100 fine or otherwise punishable pursuant to § 10.99 of this code. Other violations of this chapter may, in the discretion of the City Prosecutor, be prosecuted as infractions or misdemeanors when the interests of justice so require. Enforcement of this chapter shall be the responsibility of the Chief of Police. In addition, any peace officer or code enforcement official also may enforce this chapter.
(C) Violations of this chapter are also subject to a civil action brought by the city, punishable by a civil fine not less than $250 and not exceeding $1,000 per violation.
(D) Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter.
(E) Any violation of this chapter is hereby declared to be a nuisance.
(F) 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.
(G) Except as otherwise provided, enforcement of this chapter is at the sole discretion of the city. Nothing in this chapter shall create a right of action in any person against the city or its agents to compel public enforcement of this chapter against private parties.
(H) Any person acting for the interests of itself, its members, or the general public may bring a civil action to enjoin a violation of this chapter by a landlord, employer, business, or nonprofit entity or to enjoin repeat violations of this chapter by an individual.
(Ord. 753-C.S., passed 7-20-10)
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