(A) All new units of a multi-unit residence are hereby designated nonsmoking units including any associated exclusive-use enclosed areas or unenclosed areas, such as, for example, a private balcony, porch, deck, or patio.
(B) All units of a multi-unit residence that are not new units, are hereby designated nonsmoking units, including any associated exclusive-use enclosed areas or unenclosed areas, such as, for example, a private balcony, porch deck, or patio as of January 1, 2023.
(C) Required and implied lease terms for all new and existing units of multi-unit residences.
(1) Every lease or other rental agreement for the occupancy of a unit in a multi-unit residence, including, for example, new units and existing units, entered into, renewed, or continued month-to-month after the effective date of this chapter shall include the provisions set forth in subsection (2) below on the earliest possible date when such an amendment is allowable by law when providing the minimum legal notice.
(2) Every lease or other rental agreement for the occupancy of a unit in a multi-unit residence, including, for example, new units and existing units, entered into, renewed, or continued month-to-month after the effective date of this chapter shall be amended or prepared to include the following provisions:
(a) For new and existing units:
1. New units. A clause providing that as of January 1, 2023, it is a material breach of the agreement to allow or engage in smoking in the unit. Such a clause might state, "It is a material breach of this agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to engage in smoking in the unit."
2. Existing units. A clause providing that as of January 1, 2023, it is a material breach of the agreement to allow or engage in smoking in the unit. Such a clause might state, "It is a material breach of this agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to engage in smoking in the unit as of January 1, 2023."
(b) A clause providing that it is a material breach of the agreement. for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to engage in smoking in any common area of the property other than a designated smoking area. Such a clause might state, "It is a material breach of this agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to engage in smoking in any common area of the property, except in an outdoor designated smoking area, if one exists."
(c) A clause providing that it is a material breach of the agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to violate any law regulating smoking while anywhere on the property. Such a clause might state, "It is a material breach of this agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to violate any law regulating smoking while anywhere on the property."
(d) A clause expressly conveying third-party beneficiary status to all occupants of the multi-unit residence as to the smoking provisions of the agreement. Such a clause might state, "Other occupants of the property are express third-party beneficiaries of those provisions in this agreement that concern smoking. As such, other occupants of the property may seek to enforce such provisions by any lawful means, including by bringing a civil action in a court of law."
(3) Whether or not a landlord complies with subsections (1) and (2) above, the clauses required by those subsections shall be implied and incorporated by law into every agreement to which subsections (1) or (2) apply and shall become effective as of the earliest possible date on which the landlord could have made the insertions pursuant to subsections (1) or (2).
(4) A tenant who breaches the smoking regulations of a lease or knowingly allows another person to do so shall be liable to:
(a) The landlord; and
(b) Any lawful occupant of the multi-unit residence who is exposed to smoke or who suffers damages as a result of that breach.
(5) This chapter shall not create additional liability in a landlord to any person for a tenant's breach of any smoking provision in a lease or other rental agreement for the occupancy of a unit in a multi-unit residence if the landlord has fully complied with this section.
(6) 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 chapter and shall not prevent future enforcement of any such smoking regulation on another occasion.
(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, the Town 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.
(2) No person 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 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 subsection shall not be a defense to a charge of smoking in violation of any provision of this chapter.
(3) Smoking is prohibited in all multi-unit common areas, provided, however, that a person with legal control over a common area may designate a portion of the unenclosed area of the multi-unit 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 unit or enclosed area where smoking is prohibited by this section or other law; by binding agreement relating to the ownership, occupancy, or use of real property; or by designation of a person with legal control over the property. In the case of a nonsmoking area created by agreement or designation, this provision does not apply unless the person designating the smoking area has actual knowledge of, or has been given notice of, the agreement or designation. A person with legal control over a designated smoking area may be obliged to modify, relocate, or eliminate that 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, school campuses, and sandboxes;
(c) The area must be no more that 10 percent of the total unenclosed area of the premises 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.
(4) "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 and conspicuously posted and maintained by the landlord in every place on the premises in which smoking is prohibited by this chapter or by the landlord, except that signs are not required inside units. Signs must be sufficient to make areas where smoking is prohibited obvious to a reasonable person. The absence of signs shall not be a defense to a violation of any provision of this chapter.
(Ord. 754, passed 6-1-2011; Am. Ord. 858, passed 11-3-2021)