CHAPTER 8.44: CLEAN INDOOR AND OUTDOOR AIR AND HEALTH PROTECTION

(1) Tobacco-related illness is the leading cause of preventable death in the United States, accounting for about 443,000 deaths each year; and scientific studies have concluded that tobacco use can

cause chronic lung disease, coronary heart disease, and stroke, in addition to cancer of the lungs, larynx, esophagus, and mouth; and

(2) Some of the most common types of cancers including stomach, liver, uterine cervix, and kidney are related to tobacco use; and

(B) Secondhand smoke has been repeatedly identified as a health hazard, as evidenced by the following:

(1) The U.S. Surgeon General concluded that there is no risk-free level of exposure to secondhand smoke; and

(2) The California Air Resources Board placed secondhand smoke in the same category as the most toxic automotive and industrial air pollutants by categorizing it as a toxic air contaminant for which there is no safe level of exposure; and

(3) The California Environmental Protection Agency included secondhand smoke on the Proposition 65 list of chemicals known to the State of California to cause cancer, birth defects, and other reproductive harm; and

(1) Secondhand smoke is responsible for as many as 73,000 deaths among nonsmokers each year in the United States; and

(2) Exposure to secondhand smoke increases the risk of coronary heart disease by approximately 30 percent; and

(3) Secondhand smoke exposure causes lower respiratory tract infections, such as pneumonia and bronchitis in as many as 300,000 children in the United States under the age of 18 months each year; and exacerbates childhood asthma; and

(D) The U.S. Food and Drug Administration conducted laboratory analysis of electronic cigarette samples and found they contained carcinogens and toxic chemicals to which users and bystanders could potentially be exposed; and

(E) Tobacco use and exposure to secondhand smoke impose great social and economic costs, as evidenced by the following:

(1) The total annual economic burden of smoking in the United States is $193,000,000,000; and

(2) From 2001 through 2004, the average annual health care expenditures attributable to smoking were approximately $96,000,000,000; and

(3) The medical and other costs to nonsmokers due to exposure to secondhand smoke were estimated at over $10,000,000,000 per year in the United States in 2005; and

(4) The total annual cost of smoking in California was estimated at $475 per resident or $3,331 per smoker per year, for a total of nearly $15,800,000,000 in smoking-related costs in 1999 alone; and

(5) California’s Tobacco Control Program saved the state and its residents $86,000,000,000 in health care expenditures between the year of its inception, 1989, and 2004, with savings growing yearly; and

(F) Exposure to secondhand smoke anywhere has negative health impacts, and exposure to secondhand smoke does occur at significant levels outdoors, as evidenced by the following:

(1) Levels of secondhand smoke exposure outdoors can reach levels attained indoors depending on direction and amount of wind and number and proximity of smokers; and

(2) Irritation from secondhand smoke begins at levels as low as four micrograms per cubic meter, and in some outdoor situations this level can be found as far away as 13 feet from the burning cigarette; and

(3) To be completely free from exposure to secondhand smoke in outdoor places, a person may have to move nearly 25 feet away from the source of the smoke, about the width of a two-lane road; and

(G) Thirdhand smoke harms indoor air quality and is a recognized public health concern, as evidenced by the following:

(1) Thirdhand smoke is residual tobacco smoke contamination after a cigarette has been extinguished and takes the form of particulate matter that is deposited in a layer onto every indoor surface; in loose household dust; and as volatile organic compounds that “off gas” into the air over days, weeks and months; and

(2) Desorption of thirdhand smoke from indoor surfaces to air is recognized as a source of tobacco exposure;

(3) A majority of adults in the United States agreed with the statement that breathing in air in a room today where people smoked yesterday can harm the health of children; and

(H) Thirdhand smoke exposure has negative health impacts, as evidenced by the following:

(1) Tobacco smoke constituents, even at low levels, have been proved toxic; and

(2) Residual nicotine from tobacco smoke absorbed to indoor surfaces reacts with ambient nitrous acid, a common indoor air pollutant, to form carcinogenic tobacco-specific nitrosamines; and

(3) High levels of nicotine on indoor surfaces represents a health hazard through dermal exposure, dust inhalation, and ingestion; and

(I) Smoking is the primary cause of fire-related injuries and deaths in the home, as evidenced by the following:

(1) Cigarettes, cigars, pipes and other smoking materials are the leading cause of fire deaths in the United States, causing an estimated 142,900 smoking-related fires, 780 deaths, 1,600 injuries, and $606,000,000 in direct property damage in 2006; and

(2) One in four fatalities from home fires caused by smoking is NOT the smoker whose cigarette started the fire, and 25 percent of those deaths were of neighbors or friends of the smoker; and

(3) Smoking in a residence where long-term oxygen therapy takes place is very dangerous as oxygen is a fire accelerant, and 27 percent of fatalities due to smoking during long-term oxygen therapy occurred in multifamily dwellings; and

(4) The United States Fire Administration recommends that people smoke outdoors; and

(J) Nonsmokers who live in multi-unit dwellings can be exposed to neighbors' secondhand smoke, as evidenced by the following:

(1) Secondhand smoke can seep under doorways and through wall cracks; and persons living in apartments near smokers can be exposed to elevated pollution levels for 24 hours a day, and at times, the particulate matter exposure can exceed the U.S. Environmental Protection Agency’s 24-Hour Health Based Standard; and

(2) The Surgeon General has concluded that eliminating smoking in indoor spaces is the only way to fully protect nonsmokers from secondhand smoke exposure and that separating smokers from nonsmokers, cleaning the air, and ventilating buildings cannot completely prevent secondhand smoke exposure; and

(3) The U.S. Department of Health and Human Services and the World Health Organization (WHO) have found that there is no risk-free level of secondhand smoke, and even brief exposure can cause immediate harm. Establishing a 100 percent smoke free environment is the only effective way to fully protect those who do not smoke from secondhand smoke.

(K) Most Californians do not smoke and a majority favors limitations on smoking in multi-unit residences, as evidenced by the following:

(1) Sixty-nine percent of Californians surveyed favor limiting smoking in outdoor common areas of apartment buildings and 78 percent support laws that create nonsmoking units; and

(2) Sixty-two percent of California renters feel that there is a need for laws to limit smoking in apartments; and

(L) A local ordinance that authorizes residential rental agreements to include a prohibition on smoking of tobacco products within rental units is expressly permitted by California law; and

(M) Creating smoke free areas helps protect the health of the 86.7 percent of Californians who are nonsmokers; and

(N) State law prohibits smoking within 25 feet of playgrounds and tot lots and expressly authorizes local communities to enact additional restrictions; and state law prohibits smoking within 20 feet of entryways and operable windows of government buildings; and

(O) Cigarette butts are a major and persistent source of litter, as evidenced by the following:

(1) It is estimated that over 2,000,000,000 billion cigarette butts are discarded every day worldwide, and that Americans alone discard more than 175,000,000 pounds of cigarette butts every year; and

(2) Cigarette butts are often cast onto sidewalks and streets, and frequently end up in storm drains that flow into streams, rivers, bays, lagoons and ultimately the ocean; and

(3) Cigarette filters, made of plastic cellulose acetate, take approximately 15 years to decompose; and

(P) There is no Constitutional right to smoke.

(Q) Electronic smoking devices, or "e-cigarettes," have become increasingly popular in recent years, as evidenced by the following:

(1) Between 2011 and 2012 the percentage of all youth in grades six to 12 who had tried electronic smoking devices doubled;

(2) Six point eight percent (6.8%) of all youth between sixth and twelfth grade report trying electronic smoking devices;

(3) Ten percent (10%) of high school students have tried electronic smoking devices;

(4) Nine point three percent (9.3%) of youth who have used electronic smoking devices have never smoked conventional cigarettes;

(5) Between 2010 and 2011, rates of both awareness and use of unregulated electronic smoking devices by adults also increased significantly;

(6) Findings from the 2014 National Youth Tobacco Survey show that current e-cigarette use (use on at least one day in the past 30 days) among high school students increased from 4.5% in 2013 to 13.4% in 2014, rising from approximately 660,000 to 2,000,000 students; and

(7) Among middle school students, current e-cigarette use more than tripled from 1.1% in 2013 to 3.9% in 2014, an increase from approximately 120,000 to 450,000 students.

(R) The State of California's Tobacco Education and Research Oversight Committee (TEROC) "opposes the use of e-cigarettes in all areas where other tobacco products are banned."

(S) A study published in the Journal of Environmental and Public Health suggests that electronic smoking devices "may have the capacity to 're-normalize' tobacco use in a demographic that has had significant denormalization of tobacco use previously."

(T) Electronic smoking devices often mimic conventional tobacco products in shape, size, and color, with the user exhaling a smoke-like vapor similar in appearance to the exhaled smoke from cigarettes and other conventional tobacco products.

(U) The use of electronic smoking devices in smoke free locations threatens to undermine compliance with smoking regulations and reverse the progress that has been made in establishing a social norm that smoking is not permitted in public places and places of employment.

(V) Cal. Health & Safety Code § 11362.3 provides that no person may smoke marijuana/ cannabis or marijuana/cannabis products in a location where smoking tobacco is prohibited. Therefore the smoking regulations herein are intended to apply equally to smoking of cannabis and cannabis products to the fullest extent permitted by law.

(W) Flavored tobacco products promote youth initiation of tobacco use and cause young occasional smokers to become daily smokers by reducing or masking the natural harshness and taste of tobacco smoke and thereby increasing the appeal of tobacco products.

(Ord. 754, passed 6-1-2011; Am. Ord. 790, passed 6-3-2015; Am. Ord. 814, passed 12-6-2017; Am. Ord. 836, passed 9-4-2019; Am. Ord. 858, passed 11-3-2021)

§ 8.44.020 DEFINITIONS.

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

ARM'S LENGTH TRANSACTION. A sale in good faith and for valuable consideration that reflects the fair market value in the open market between two informed and willing parties, neither of which is under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for which a significant purpose is avoiding the effect of the violations of this article is not an arm's length transaction.

BAR. An area which is devoted to the serving of alcoholic beverages for consumption by patrons on the premises and in which the serving of food is only incidental to the consumption of the beverages. Although a restaurant may contain a BAR, the term BAR shall not include the restaurant dining area.

BUSINESS. Any sole proprietorship, joint venture, corporation or other business entity formed for profit-making purposes.

CIGAR.

(1) Any roll of tobacco wrapped entirely or in part in tobacco or in any substance containing tobacco; or

(2) Any paper or wrapper that contains tobacco and is designed for smoking or ingestion of tobacco products.

(3) For the purposes of this subsection, CIGAR includes, but is not limited to, tobacco products known or labeled as "cigar," "cigarillo," "tiparillo," "little cigar," "blunt wrap," or "cigar wrap."

CHARACTERIZING FLAVOR. A distinguishable taste or aroma or both, other than the taste or aroma of tobacco, imparted by a tobacco product or any byproduct produced by the tobacco product. CHARACTERIZING FLAVORS include, but are not limited to, tastes or aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, menthol, mint, wintergreen, herb or spice.

CONSTITUENT. Any ingredient, substance, chemical, or compound, other than tobacco, water, or reconstituted tobacco sheet that is added by the manufacturer to a tobacco product during the processing, manufacture, or packing of the tobacco product.

DEPARTMENT. The Town Manager, and any agency or person designated by the Town Manager to enforce or administer the provisions of this chapter.

DISTINGUISHABLE. Perceivable by either the sense of smell or taste.

ELECTRONIC SMOKING DEVICE. An electronic or battery operated device that delivers vapors for inhalation. This term shall include every variation and type of such devices, whether they are manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or descriptor.

ELECTRONIC SMOKING DEVICE PARAPHERNALIA. Any cartridges, cartomizers, e-liquid, smoke juice, tips, atomizers, electronic smoking device batteries, electronic smoking device chargers, and any other item specifically designed for the preparation, charging, or use of electronic smoking devices.

ELECTRONIC SMOKING DEVICE VENDING MACHINE. Any machine, appliance, or other mechanical device that carries Electronic Smoking Devices or Electronic Smoking Device Paraphernalia that is operated by currency, token, debit card, credit card, or any other form of payment that is designed or used for vending purposes, including, but not limited to, machines or devices that use remote control locking mechanisms.

EMPLOYEE. Any person who is employed by any employer in consideration for direct or indirect monetary wages or profit, and any person who volunteers his or her services for a non-profit entity.

EMPLOYER. Any person, partnership, corporation, including a municipal corporation or non-profit entity, which employs the services of one or more individual persons or utilizes volunteers.

ENCLOSED AREA. All space between a floor and ceiling which is enclosed on all sides by solid walls or windows (exclusive of door or passageways) which extend from the floor to the ceiling, including all space therein screened by portions which do not extend to the ceiling or are not solid, such as "office landscaping" or similar structures.

FLAVORED TOBACCO PRODUCT. Any tobacco product that contains a constituent that imparts a characterizing flavor.

LABELING. Written, printed, pictorial, or graphic matter upon any tobacco product or any of its packaging.

LANDLORD. 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.

LEASE. A written or oral agreement between a landlord and tenant conveying possession of a unit. LEASE includes both agreements set for a fixed period of time as well as month-to-month or week-to-week rental agreements.

MINOR. Any individual who is less than 21 years old, except active duty military personnel who are 18 years of age or older. An identification card issued by the United States Armed Forces shall be used as proof of age for this purpose.

MULTI-UNIT RESIDENCE. A building or portion thereof that contains two or more units except the following specifically excluded types of housing:

(1) A single-family home;

(2) A mobile home park;

(3) A campground;

(4) A marina or port;

(5) A single-family home with an 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 town adopted pursuant to those sections.

MULTI-UNIT COMMON AREA. Every enclosed area or unenclosed area of a multi-unit residence, multi-unit commercial facilities, senior citizen residences and nursing homes accessible to and usable by residents of different small units and/or members of the public, including but not limited to halls and paths, courtyards, lobbies, laundry rooms, common areas, outdoor eating areas, play areas and swimming pools.

NEW UNIT. A unit that is issued a certificate of occupancy after the effective date of this chapter and also means a unit that is let for residential use for the first time after the effective date of this chapter.

NON-PROFIT ENTITY. Any corporation, unincorporated association or other entity created for charitable, religious, philanthropic, educational, character-building, political, social or other similar purposes, the net proceeds from the operations 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 NON-PROFIT ENTITY within the meaning of this chapter.

NO SMOKING SIGN. A sign containing the words “No Smoking” or the international “No Smoking” symbol (consisting of a pictorial representation of a burning cigarette in a red circle or red heart with a red bar across it).

OPENINGS. OPENINGS shall include main entrances, exits, operable windows and ventilation intake systems.

PACKAGING. A pack, box, carton, or container of any kind, or, if no other container, any wrapping (including cellophane) in which a tobacco product is sold or offered for sale to a consumer.

PERSON. Any natural person, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee or any other legal entity.

PHARMACY. A retail establishment in which the profession of pharmacy by a pharmacist licensed by the State of California in accordance with the Business and Professions Code is practiced and where prescriptions are offered for sale. A pharmacy may also offer other retail goods in addition to prescription pharmaceuticals.

PLACE OF EMPLOYMENT. Any area under the legal or actual control of an employer or sole proprietor that an employee, contractor or member of the public to enter during the normal course of operations, but regardless of hours of operation, including, but not limited to, indoor and outdoor work areas, construction sites, vehicles used in employment or for business purposes, taxis, employee lounges and restrooms, conference and banquet rooms, classrooms, bingo and gaming facilities, long-term health facilities, warehouses, and private residences used as child/elder care or health care facilities subject to licensing requirements.

PROPRIETOR. A person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a person has a 10 percent or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a person can or does have or shares ultimate control over the day-to-day operations of a business.

PUBLIC PLACE. Any place, public or private, open to members of the general public regardless of any fee or age requirement, including but not limited to, bars, restaurants, clubs, stores, stadiums, parks, playgrounds, taxis, buses, bus shelters, public transportation facilities, hotels and motels, fairs, farmers’ markets and theaters. PUBLIC PLACE does not include the area within private vehicles that are in or on public places.

REASONABLE DISTANCE. A distance of at least 20 feet.

RECREATION AREA. Any area, public or private, open to the general public for recreational purposes, regardless of any fee requirement, including, but not limited to public gardens, children’s play areas, sporting facilities, stadiums, and playgrounds.

SELF-SERVICE MERCHANDISING. 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. This includes point-of-sale tobacco promotional products (such as tobacco industry tee shirts, caps, key chains, give-aways), to which the public has access without the assistance of an employee. A vending machine is a form of self-service display.

SERVICE AREA. Area at which one or more persons are waiting for a transaction, entry or service of any kind, whether or not such service involves the exchange of money, including, but not limited to ATMs, bank teller windows, telephones, ticket lines, bus stops and cab stands.

SMOKE. The gases and particles released into the air by combustion, electrical ignition, or vaporization, including from an Electronic Smoking Device, when the apparent or usual purpose of the combustion, electrical ignition or vaporization is human inhalation of the resulting gases, particles or vapors combustion products, such as, for example, tobacco smoke, and marijuana (cannabis) smoke, except when the purpose of inhalation is solely olfactory, such as, for example, smoke from incense.

SMOKING. Engaging in an act that generates Smoke, such as, for example, possessing a lighted cigar, a lighted cigarette of any kind, a lighted pipe, or a lighted hookah pipe; or lighting a pipe, a hookah pipe, a cigar, or a cigarette of any kind, or operating an electronic smoking device.

SPORTS ARENA. Enclosed or unenclosed sports pavilions, gymnasiums, health spas, swimming pools, roller and ice rinks, bowling alleys and other similar places where members of the general public assemble either to engage in physical exercise, participate in athletic competition or witness sports events.

TOBACCO PARAPHERNALIA. Cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the smoking, preparation, storing, or consumption of tobacco products.

TOBACCO PRODUCT.

(1) Any product containing, made, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, or any other preparation of tobacco; or

(2) Any device or component, part, or accessory that delivers nicotine alone or combined with other substances to the person using the device including but not limited to cigarettes, electronic smoking devices or paraphernalia, cigars, or pipes, whether or not the device or component is sold separately. TOBACCO PRODUCT does not include 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.

TOBACCO RETAILER or RETAILER. Any person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco, tobacco products, tobacco paraphernalia, electronic smoking devices or electronic smoking device paraphernalia. TOBACCO RETAILING shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco products, tobacco paraphernalia, electronic smoking devices or electronic smoking device paraphernalia sold, offered for sale, exchanged, or offered for exchange.

TOBACCO VENDING MACHINE. Any machine, appliance, or other mechanical device that carries tobacco products or tobacco paraphernalia operated by currency, token, debit card, credit card, or any other form of payment that is designed or used for vending purposes, including, but not limited to, machines or devices that use remote control locking mechanisms.

TOWN. The Town of Fairfax.

UNENCLOSED AREA. Any area that is not an enclosed area.

UNIT. 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 like balconies and patios. UNIT includes an apartment; a room in a long-term health care facility, senior citizen housing, assisted living facility, or hospital; a room in a single room occupancy (“SRO”) facility; a room in a homeless shelter; a single-family home; an in-law or second unit; and single room occupancy hotel rooms, as defined in Cal. Health and Safety Code § 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 Cal. Civil Code § 1940(b)(2).

VENDOR-ASSISTED. Only a store employee has access to the tobacco product and assists the customer by supplying the product. The customer does not take possession of the product until it is purchased.

(Ord. 754, passed 6-1-2011; Am. Ord. 790, passed 6-3-2015; Am. Ord. 814, passed 12-6-2017; Am. Ord. 836, passed 9-4-2019; Am. Ord. 858, passed 11-3-2021)

Disclaimer: This Code of Ordinances and/or any other documents that appear on this site may not reflect the most current legislation adopted by the Municipality. American Legal Publishing provides these documents for informational purposes only. These documents should not be relied upon as the definitive authority for local legislation. Additionally, the formatting and pagination of the posted documents varies from the formatting and pagination of the official copy. The official printed copy of a Code of Ordinances should be consulted prior to any action being taken. For further information regarding the official version of any of this Code of Ordinances or other documents posted on this site, please contact the Municipality directly or contact American Legal Publishing toll-free at 800-445-5588.

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