(A)   A minimum of 75 percent of units in a multi-unit residence must be permanently designated as non-smoking, including the exclusive use areas of the units such as private balconies, porches, decks, or patios. All units may be designated non-smoking units.
      (1)   Non-smoking units must be grouped together (e.g., horizontally and/or vertically) and physically separated from smoking units to the maximum extent practicable.
      (2)   A unit and its associated exclusive use areas shall not be subject to the smoking restrictions of this chapter until 14 months after the effective date of Ordinance No. 754.
   (B)   Required lease terms.
      (1)   The renewal of a lease, lease extension or other agreement for the occupancy of a unit in a multi-unit residence shall include:
         (a)   A clause stating that smoking is prohibited in the unit if the unit has been designated as a non-smoking unit;
         (b)   A clause stating that it is a material breach of the lease or agreement to:
            1.   Violate any law regarding smoking while on the premises;
            2.   Smoke in a non-smoking unit; or
            3.   Smoke in any multi-unit residence common area in which smoking is prohibited by the landlord; and
         (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 lease or agreement terms required by subsection (1)(a) 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 Ordinance No. 754 and which does not fully comply with subsection (1)(a).
      (3)   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)   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 (1)(a).
      (4)   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.
   (C)   Disclosure of non-smoking units by landlord. Every landlord shall maintain a list of designated 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 and floor plan 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 supplied, the unit subject to the lease shall be a non-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, 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)   Smoking shall be prohibited within a reasonable distance from any entrance, opening or exit of any enclosed area within which smoking is prohibited, except while passing on the way to another destination.
      (3)   No person shall knowingly permit the presence or placement of ash trays, cans, or other receptacles within multi-unit residence common areas under his or her legal or de facto control in which smoking is prohibited by this chapter, this code, or
any other state or federal law, including, for example and without limitation, with a reasonable distance of any non-smoking area.
      (4)   Smoking is prohibited in all multi-unit residence common areas except that a landlord may designate a portion of the outdoor area as a smoking area provided that at all times the designated smoking area complies with the following. A designated smoking area:
         (a)   Must be an unenclosed area;
         (b)   Must be located a reasonable distance from any enclosed area where smoking is prohibited;
         (c)   Must not include and must be a reasonable distance from unenclosed areas primarily used by children including, but not limited to, areas improved or designated for playing or swimming;
         (d)   Must be no more that 25 percent of the total unenclosed area of the premises for which it is designated;
         (e)   Must have a clearly marked perimeter;
         (f)   Must be identified by conspicuous signs;
         (g)   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
         (h)   Must be accessible and conform with all pertinent requirements of the Americans with Disabilities Act or its successor.
      (5)   “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)