Staff Report
PREPARED BY: Robert Schultz, Town Attorney
Reviewed by: Assistant Town Manager Town Attorney Finance
MEETING DATE: 05/03/16
ITEM NO: 9
COUNCIL AGENDA REPORT
DATE: APRIL 28, 2016
TO: MAYOR AND TOWN COUNCIL
FROM: ROBERT SCHULTZ, TOWN ATTORNEY
SUBJECT: ADOPT AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF
LOS GATOS AMENDING SECTION 18.60.10 TO INCLUDE RESTRICTIONS
ON SMOKING IN COMMERCIAL ZONED AREAS AND IN MULTI-UNIT
RESIDENCES AND OTHER MISCELLANEOUS EDITS
RECOMMENDATION:
Staff recommends that Town Council accept public comment and then move for introduction and
first reading of an Ordinance, by title only, amending Section 18.60.10 to the Los Gatos Town
Code.
INTRODUCTION:
One of the 2015-2016 Strategic Goals and Priorities of the Town Council is to update the Town’s
Smoking Regulations, last revised some 25 years ago. Since September 2015, the Town
Attorney’s Office has been working with the Los Gatos Youth Commission on proposed
amendments to the Town’s Smoking Regulations. The amendments to the Town’s smoking
regulations proposed by the Youth Commission come in the context of greater scientific
understanding of the dangers of secondhand and thirdhand smoke and the continued drop in the
percentage of adult smokers in the Bay Area. The proposed amendments to the Town’s Smoking
Regulations formulated by the Youth Commission include provisions for prohibiting smoking in
public places, commercial areas, and multi-unit residences. All of these proposals have already
been adopted by one or more jurisdictions within the Bay Area.
BACKGROUND:
California has long been considered a pioneer with its statewide initiatives to reduce the harmful
effects of smoking. The 1988 passage of Proposition 99, the Tobacco Tax and Health Protection
Act, imposed a 25 cent per pack cigarette tax and created statewide programs to reduce smoking.
PAGE 2
MAYOR AND TOWN COUNCIL
SUBJECT: ORDINANCE RE SMOKING REGULATIONS
MAY 3, 2016
BACKGROUND (continued):
By 1993, local jurisdictions throughout the state had enacted smoke-free workplace ordinances
that protected nearly two-thirds of California workers. The success of local tobacco control
legislation helped inform the 1994 creation and passage of Assembly Bill (AB) 13, the California
Smoke-Free Workplace Act. This landmark bill created a 100% smoke-free environment for
most work places.
The passage of AB 13 was heralded as a groundbreaking replacement for a “patchwork of local
laws,” but it was also criticized for its negative effect upon local tobacco control initiatives
because it was limited to workplace protections. In addition, its passage created the perception
that local legislation was no longer necessary. In researching this issue, staff and the Youth
Commission discovered that many cities over the last several years have started to implement
additional protections beyond those provided by state law.
DISCUSSION:
Local governments that have chosen to enact tobacco control ordinances that are stronger than
the protections provided by the state have generally focused their protections on three areas:
1. Protections for indoor or enclosed work places;
2. Protections for outdoor public places; and
3. Secondhand smoke housing policies.
The Youth Commission decided to extend the protections under the Town’s ordinance to all
three of these areas. Staff and the Youth Commission relied on several sources to compile
information and in making their recommendations for proposed changes to our smoking
ordinance including the Public Health Law and Policy’s Technical Assistance and Legal Center,
the American Lung Association’s Center for Tobacco Policy and Organizing, and the County’s
Tobacco Control Program.
Protections for Indoor or Enclosed Work Places
AB 13, codified in Labor Code section 6404.5, prohibits smoking in most indoor work places,
but exempts certain work place environments. Most other towns and cities have acted to extend
protections to cover these areas. The proposed ordinance would eliminate the exemptions to
cover all enclosed work place environments, as well as other enclosed places that are open to the
public.
All of the proposed prohibitions on smoking are listed in Section 1218.60.010. Some of the
examples of enclosed public or workplace environments where protections would be extended
include:
• Private residences used as licensed child care and health care facilities
PAGE 3
MAYOR AND TOWN COUNCIL
SUBJECT: ORDINANCE RE SMOKING REGULATIONS
MAY 3, 2016
DISCUSSION (continued):
• Buses, Taxi cabs, and rideshare vehicles
• Tobacco retailers/smoking lounges/hookah bars
• Truck cabs
• Hotel lobbies, rooms and grounds
• Restrooms and Banquet rooms
• Warehouse facilities
• Places of Employment
• Public places such as sports arenas or convention halls
• Shopping Malls
• Polling Places
Protections for Outdoor Public Places
There are numerous studies concluding that secondhand smoke is harmful to individuals,
including a report from the California Air Resources Board declaring secondhand smoke as a
toxic air contaminant, and a report from the U.S. Surgeon General stating that there is no risk-
free level of exposure to secondhand smoke. A 2007 study conducted by researchers from
Stanford University found that outdoor secondhand smoke exposure can be comparable to indoor
secondhand smoke levels when an individual is near a smoker outdoors. Many cities throughout
the state have used these compelling healthcare studies as the basis for implementing additional
regulations related to secondhand smoke to outdoor public places. Eighty-three cities and
counties in California have passed what are considered to be comprehensive outdoor secondhand
smoke ordinances.
The Youth Commission’s proposed ordinance establishes a very comprehensive outdoor
secondhand smoke ordinance that uses a “listing approach,” that targets key outdoor areas for
protection. The areas targeted for protection under the proposed ordinance include:
1. Dining areas: defined as all indoor and outdoor seating at restaurants, bars, etc.
2. Entryways (reasonable distance): defined as within (30) feet of any smoke free
area, building or building entrance, window, opening or vent into an enclosed area
in which smoking is prohibited a certain distance from doors, windows, and other
openings into enclosed areas.
3. Public events: defined as farmers’ markets, parades, concerts, etc.
4. Recreation areas: defined as parks, trails, sports fields, etc.
5. Service areas: defined as bus stops, ticket lines, ATM lines, taxi stands, etc.
6. Commercial District: defined as C-1, C-2, C-H, CM and LM accessible to the
general public, including sidewalks, streets, and parking areas,
Other provisions that are included in an ordinance regulating smoking in public places include:
• Requiring that No Smoking signs be posted.
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MAYOR AND TOWN COUNCIL
SUBJECT: ORDINANCE RE SMOKING REGULATIONS
MAY 3, 2016
DISCUSSION (continued):
• Prohibiting the placement of ash cans and ashtrays.
• Requiring commercial property owners and managers to prevent patrons and
guests from illegally using tobacco on their premises.
Secondhand Smoke Housing Policies
Smoke in multi-unit housing poses health problems for non-smoking residents through the
drifting of smoke from neighboring units, balconies, and outdoor spaces. The Surgeon General
has determined that the dangers from secondhand smoke cannot be controlled by ventilation, air
cleaning, or the separation of smokers from non-smokers. Several studies have concluded that
smoking in multi-unit housing also contributes to higher maintenance and insurance costs. Many
cities in California have begun to address the health dangers and additional costs related to
secondhand smoke by implementing secondhand smoke housing policies. As of January 2011,
101 communities in California have adopted some form of secondhand smoke housing policy.
Restricting smoking within individual rental units was an important consideration for the Youth
Commission when drafting the proposed ordinance. The American Lung Association supports
prohibiting smoking in 100% of multi-unit rental housing due to the public health impacts of
secondhand smoke. The proposed ordinance includes a prohibition on smoking within multi-unit
residences and within thirty feet of any common areas and requires no smoking lease terms in
rental agreements.
Exception
The proposed ordinance does allow an owner of private property to designate a Town approved
area where smoking is permitted in a location where smoking would otherwise be prohibited, so
long as it is as small as is practicable to accommodate the number of smokers that are expected
to use the area and is located a minimum of 30 feet from any structure where smoking is
prohibited.
CONCLUSION:
We recommend Council review and move for first reading and introduction of the attached
Ordinance by title only. Please feel free to ask questions or make any changes you feel
appropriate.
ENVIRONMENTAL ASSESSMENT:
It has been determined that there is no possibility that this project will have a significant impact
on the environment; therefore, the project is not subject to the California Environmental Quality
Act (Section 15061 (b) (3)).
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MAYOR AND TOWN COUNCIL
SUBJECT: ORDINANCE RE SMOKING REGULATIONS
MAY 3, 2016
FISCAL IMPACT:
The adoption of this ordinance will result in a fiscal impact for the cost and installation of no
smoking signs. In addition, the Town will need to replace or modify trash receptacles that also
serve as ashtrays in locations where smoking is proposed to be prohibited.
Attachment:
1. Draft Ordinance
Page 1 of 18
ATTACHMENT 1
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE TOWN OF LOS GATOS
AMENDING SECTION 18.60.10 TO INCLUDE RESTRICTIONS ON SMOKING IN
COMMERIAL ZONED AREAS AND IN MULTI-UNIT RESIDENCES AND OTHER
MISCELLANEOUS EDITS.
WHEREAS, tobacco use causes death and disease and continues to be an urgent public
health challenge, as evidenced by the following:
480,000 people die prematurely in the United States from smoking-related diseases every
year, making tobacco use the nation's leading cause of preventable death1; and
Tobacco use can cause disease in nearly all organ systems and is responsible for 87
percent of lung cancer deaths, 79 percent of all chronic obstructive pulmonary disease
deaths, and 32 percent of coronary heart disease deaths2; and
WHEREAS, secondhand smoke has been repeatedly identified as a health hazard, as
evidenced by the following:
The U.S. Surgeon General concluded that there is no risk-free level of exposure to
secondhand smoke3; and
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 4 5; and
The California Environmental Protection Agency (EPA) included secondhand smoke on
the Proposition 65 list of chemicals known to the state of California to cause cancer, birth
defects, and other reproductive harm6; and
WHEREAS, exposure to secondhand smoke anywhere has negative health impacts, and
exposure to secondhand smoke occurs at significant levels outdoors, as evidenced by the
following:
Levels of secondhand smoke exposure outdoors can reach levels attained indoors
depending on direction and amount of wind and number and proximity of smokers7, and
Smoking cigarettes near building entryways can increase air pollution levels by more
than two times background levels, with maximum levels reaching the "hazardous" range
on the United States EPA's Air Quality Index8; and
To be completely free from exposure to secondhand smoke in outdoor places, a person
may have to move nearly 23 feet away from the source of the smoke, about the width of a
two-lane road9; and
WHEREAS, exposure to secondhand smoke causes death and disease, as evidenced by the
following:
Since 1964, approximately 2.5 million nonsmokers have died from health problems
caused by exposure to secondhand smoke;10 and
Secondhand smoke is responsible for an estimated 41,300 heart disease-related and lung
cancer-related deaths among adult nonsmokers each year in the United States11; and
Exposure to secondhand smoke increases the risk of coronary heart disease by about 25
percent to 30 percent11 and increases the risk of stroke by 20 percent to 30 percent;12 and
Page 2 of 18
ATTACHMENT 1
WHEREAS, tobacco use and exposure to secondhand smoke impose great social and
economic costs, as evidenced by the following:
Between 2009 and 2012, the total annual economic burden of smoking in the United
States was between $289 billion and $332.5 billion;13 and
From 2005 to 2009, the average annual health care expenditures attributable to smoking
were approximately $132.5 billion to $175.9 billion in direct medical care costs for adults
and $151 billion in lost productivity; and
The total annual cost of smoking in California was estimated at $548 per resident or
between $2,262 and $2,904 per smoker per year; and
California’s Tobacco Control Program saved the state and its residents $134 billion in
health care expenditures between the year of its inception, 1989, and 2008, with savings
growing yearly;14 and
WHEREAS, laws restricting the use of tobacco products have recognizable benefits to
public health and medical costs with a review of over 80 peer-reviewed research studies showing
that smokefree policies effectively do the following:
Reduce tobacco use: tobacco use is reduced by median of 2.7 percent; and
Reduce exposure to secondhand smoke: air pollution is reduced by a median of 88
percent and biomarkers for secondhand smoke are reduced by a median of 50 percent;
and
Increase the number of tobacco users who quit by a median of 3.8 percent; and
Reduce initiation of tobacco use among young people; and
Reduce tobacco-related illnesses and death: there is a 5.1 percent median decrease in
hospitalizations from heart attacks and a 20.1 percent decrease in hospitalizations from
asthma attacks after such laws are passed;15 and
WHEREAS, laws restricting electronic smoking devices use also have benefits to the public
as evidenced by the following:
Research has found at least ten chemicals known to the State of California to cause
cancer, birth defects, or other reproductive harm,16 17 18 such as formaldehyde,
acetaldehyde, lead, nickel, and toluene;19 20 21 and
More than one study has concluded that exposure to vapor from electronic smoking
devices may cause passive or secondhand vaping;22 and
The use of electronic smoking devices in smokefree 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;23 and
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;”24 and
WHEREAS, cigarette butts are a major and persistent source of litter, as evidenced by the
following:
In 2007, it was estimated that Americans consume 360 billion cigarettes each year;25 26
and
Page 3 of 18
ATTACHMENT 1
55.7 percent of smokers admit to littering cigarettes in the last month;27 and
In an observational study of nearly 10,000 individuals, after cigarettes were smoked, 45
percent of cigarettes ended up as litter; and
In 2011, 22.6 percent of all debris collected from beaches and coastal areas are smoking
related products; and
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;28 29 and
WHEREAS, cigarette butts pose a health threat to young children, as evidenced by th e
following:
In 2012, American poison control centers received nearly 8,648 reports of poisoning by
the ingestion of cigarettes, cigarette butts, and other tobacco products and 84.5 percent of
these poisonings were in children ages five and younger;30 and
Children who ingest cigarette butts can experience vomiting, nausea, lethargy, and
gagging;31 and
WHEREAS, though widely perceived as a comprehensive smokefree air law, exemptions
and loopholes in the California Smokefree Workplace Act32 mean that one in seven Californians
faces secondhand smoke exposure at work33; and
WHEREAS, there is broad public recognition of the dangers of secondhand smoke and
support for smokefree air laws, as evidenced by a 2008 survey of California voters, which found
that 97 percent thought that secondhand smoke is harmful, 88 percent thought secondhand smoke
was harmful even outdoors, 65 percent were bothered by secondhand smoke, and 73 percent
support laws restricting smoking in outdoor public places;34 and
WHEREAS, as of April 2015, there are at least 64 California cities and counties with local
laws restricting smoking in workplaces not covered by the state smokefree workplace law;35 and
WHEREAS, as of April 2014, at least 131 local jurisdictions in California prohibit the use of
electronic smoking devices in specific locations;36 and
WHEREAS, as of January 2015, there are at least 348 California cities and counties with
local laws restricting smoking in recreational areas, 129 with local laws restricting smoking in
outdoor dining places, and 48 with local laws restricting smoking on sidewalks in commercial
areas;37 and
WHEREAS, nonsmokers who live in multi-unit dwellings can be exposed to neighbors’
secondhand smoke, as evidenced by the following:
Several peer-reviewed studies on drifting secondhand smoke in multi-unit housing have
confirmed that secondhand smoke can and does transfer between units,38,39 creeping
under doorways and through wall cracks;38
More than one study has found that residents of multi-unit housing have high levels of
cotinine (a biomarker for nicotine) in their blood and saliva;39 40
13 peer-reviewed journal articles have found that between 26 percent and 64 percent of
residents of multi-unit housing report secondhand smoke drifting into their home; and
Page 4 of 18
ATTACHMENT 1
WHEREAS, harmful residues from tobacco smoke can be absorbed by and cling to virtually
all indoor surfaces long after smoking has stopped and then be emitted back into the air, making
this “thirdhand smoke” a potential health hazard, as evidenced by the following:
Thirdhand smoke contains carcinogenic materials that accumulate over time, presenting a
health hazard long after the initial smoke is gone;41
A study found that thirdhand smoke remains months after nonsmokers have moved into
units where smokers previously lived;42
Human exposure to these thirdhand smoke carcinogens can be through inhalation,
ingestion, or skin absorption through contact with carpeting, furnishings, or clothing;43
Thirdhand smoke potentially poses the greatest danger to infants and toddlers, who crawl
on rugs and furnishings and suck on items in the home;
Nonsmoking people who are exposed to thirdhand smoke have significantly higher
nicotine and cotinine levels than those who have not been exposed to thirdhand smoke;
Research has shown that thirdhand smoke damages human cellular DNA;44 and
WHEREAS, smoking is the number one cause of fire deaths, is a leading cause of firerelated
injury,45 and contributes to fire-related health inequities, as evidenced by the following:
In 2011, U.S. fire departments responded to an estimated 90,000 smoking-related fires,
which resulted in an estimated 1,640 injuries, 540 deaths, and $621 million in direct
property damage;46
One in four fatalities is NOT the smoker whose cigarette started the fire, and 25 percent
of those who die are neighbors or friends of the smoker;
African-American males and American-Indian males have the highest fire death rates;
The elderly (people 85 and older) have the highest fire death rate (49.2%),47 and the risk
of dying from smoking-related fires increases with age;
The U.S. Fire Administration recommends that people smoke outdoors;48 and
WHEREAS, 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;49 and
WHEREAS, several studies have confirmed that smokefree multi-unit housing policies are
the most effective method to fully reduce secondhand smoke exposure in multi-unit housing; and
WHEREAS, 32 percent of Californians (or 11.8 million people) live in multi-unit housing,50
which accounts for one-seventh of the total multi-unit housing population in the country; and
WHEREAS, between 44 percent to 46.2 percent of Californians living in multi-unit housing
with personal smokefree home policies are exposed to secondhand smoke in their home; and
WHEREAS, surveys have found that between 65 percent and 90 percent of multi -unit
housing residents who experience secondhand smoke in their home are bothered by the
secondhand smoke incursion; and
Page 5 of 18
ATTACHMENT 1
WHEREAS, secondhand smoke exposure in multi-unit housing contributes to tobacco
related health inequities. For example, when compared with adults who live in single family
homes, adults who live in multi-unit housing are more likely to:
Be from communities of color (62.9% of residents of multi-unit homes versus 49.6% of
residents of single family homes);
Be low-income or below the poverty line (46.8% versus 27%);
Have less than a high school diploma (21.4% versus 14.8%);
Be current smokers (17.5% versus 13.2%);50 as well as
Be uninsured (23.4% versus 14.2%);51 and
WHEREAS, secondhand smoke in multi-unit housing is a significant threat to the health and
safety of California children, as evidenced by the following:
About a quarter of those who live in multi-unit housing (25.2%) are under the age of 18;
The home is the primary source of secondhand smoke for children;
56.4 percent of youth living in apartment units in which no one smokes have elevated
blood cotinine levels above .05 ng/mL, indicating they have been exposed to potentially
dangerous levels of secondhand smoke;
Children who live in apartments have mean cotinine levels that are 45 percent higher than
cotinine levels in children who live in detached homes; and
WHEREAS, a majority of multi-unit housing residents, including a large portion of
smokers, support smokefree policies in multi-unit residences, as evidenced by the following:
74 percent of Californians surveyed approve of apartment complexes requiring that at
least half of rental units be nonsmoking;
69 percent of Californians surveyed favor limiting smoking in outdoor common areas of
apartment buildings;
78 percent support laws that create nonsmoking units;52 and
WHEREAS, a local ordinance that authorizes residential rental agreements to include a
prohibition on smoking of tobacco products within rental units is not prohibited by California
law;53 and
WHEREAS, at least 55 California cities and counties have adopted smokefree multi-unit
housing ordinances,54 and at least 25 of these jurisdictions have restricted smoking in 100
percent of units;55 and
WHEREAS, there is no Constitutional right to smoke;56
WHEREAS, to provide for the public health, safety, and welfare by discouraging the
inherently dangerous behavior of smoking around non-tobacco users, especially children, to
protect the public from exposure to secondhand smoke where they live, work, and play, and to
protect the public from nonconsensual exposure to secondhand smoke in and around their homes
the Town of Los Gatos to amend and add new sections to the Los Gatos Town Municipal Code
Section 18.60.10 relating to smoking in commercial zones, within multi-family housing,
smoking distance from doors, windows and similar openings, and outdoor dining establishments.
Page 6 of 18
ATTACHMENT 1
NOW, THEREFORE, THE TOWN COUNCIL OF THE TOWN OF LOS GATOS
DOES ORDAIN AS FOLLOWS:
SECTION I.
Los Gatos Town Code Article VI – Smoking Regulations Section 18.60.010 is hereby
amended, added and renumbered to read as follows:
Sec. 18.60.010. - Smoking in public places, residences and places of employment.
(a) Findings and purpose. Numerous studies have found that tobacco smoke is a major
contributor to indoor air pollution, and that breathing secondhand and thirdhand smoke is a
cause of disease, including lung cancer, in nonsmokers. At special risk are minors, elderly
people, pregnant women, individuals with cardiovascular disease, and individuals with
impaired respiratory function, including asthmatics and those with obstructive airway
disease. Additionally, studies have found a number of dangerous chemicals in electronic
smoking devices emissions and cartridge contents. At least ten (10) chemicals listed as
carcinogens and reproductive toxins have been identified in mainstream or secondhand e-
cigarette aerosol.
Health hazards induced by breathing secondhand smoke/e-cigarette vapor and being in
smoking environments include lung and other cancer, heart disease, respiratory infection,
decreased respiratory function, birth defects, asthma, bronchoconstriction, and bronchi-
spasm and even ear infections.
Since there is no safe level of exposure to secondhand smoke, the American Society of
Heating, Refrigerating and Air Conditioning Engineers (ASHRAE) bases its ventilation
standards on totally smoke free environments. SHRAE has determined that there is currently
no air filtration or other ventilation technology that can completely eliminate all the
carcinogenic components in secondhand smoke and the health risks caused by secondhand
smoke exposure, and recommends that indoor environments be smoke free in their entirety.
Accordingly, the Town Council finds and declares that the purposes of this section are (1) to
protect the public health and welfare by prohibiting smoking in public places and places of
employment; and (2) to guarantee the right of nonsmokers to breathe smoke-free and non-
toxic air, and to recognize that the need to breathe smoke-free air shall have priority over the
desire to smoke.
(b) Definitions. For the purposes of this section, the following definitions shall apply:
(1) Bar: A place not accessory to an eating establishment which serves alcoholic beverages
for consumption on-site to the general public in which the serving of food is incidental
to the consumption of such beverages.
(2) Eating establishment: Any restaurant, coffee shop, cafeteria, soda fountain, café, market
or other establishment engaged in serving food and/or beverages, for dining in or out, to
the general public, even if such use is not primary to the business.
(3) Electronic smoking device: An electronic and/or battery operated device, the use of
which may resemble smoking, which can be used to deliver an inhaled dose of vapors
including nicotine or other substances. "Electronic smoking device" includes any such
Page 7 of 18
ATTACHMENT 1
electronic smoking devices, whether 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.
(4) Employee: Any person who is employed or retained as an independent contractor by an
employer in consideration for direct or indirect monetary wages or profit. Also includes
any person who volunteers his or her services to such and employer.
(5) Employer: Any person or corporation including public agencies who employs the
services of an individual person for compensation for services to be rendered.
(6) Enclosed public place: A public space enclosed on all sides by walls, partitions,
windows, or similar barriers (exclusive of ingress/egress) open to the general public,
including but not limited to retail buildings, restaurants, theaters, museums, art galleries
and similar structures. (7) Existing unit means any unit that is not a new unit.(8)
Medical care facility: Any health facility as defined in Section 1200 or 1250 of
the Public Health and Safety Code, or any facility in which a physician provides health
care to patients.
(9) Multi-unit residence: A rental complex that contains two or more units. A multi-unit
residence does not include property owned by the state or federal government or the
following specifically excluded types of housing: (1) A hotel or motel; (2) A mobile
home park; (4) A single-family home; and (5) A single-family home with a detached or
attached in-law or second unit when permitted pursuant to CA Government Code
sections 65852.1, 65852.150, and 65852.2, or an ordinance of the Town adopted
pursuant to those sections. A single-family house shared by roommates is not a multi-
unit residence for purposes of this chapter.
(10) Multi-unit residence common area: Any indoor or outdoor common area of a multi- unit
residence accessible to and usable by more than one residence, including but not limited
to, courtyards, halls, lobbies, parking garages and parking areas, gardens, laundry
rooms, outdoor eating areas, play, exercise, and swimming areas.
(11) New unit means a unit that is issued a certificate of occupancy after enactment of this
ordinance, and also means a unit that is let for residential use for the first time after the
enactment of this ordinance.
(12) No smoking sign: A sign in letters not less than one (1) inch in height printed on a
contrasting background which states that smoking is not allowed or a sign which
displays 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.
(13) Nonprofit Entity: 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 government agency is not
a Nonprofit Entity within the meaning of this section.
(14) 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.
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ATTACHMENT 1
(15) Public building: Any building or portion thereof owned or leased by the Town or any
local government entity subject to Town zoning requirements.
(16)Public place: Any area to which any member of the public is invited, or in which any
member of the public is permitted, including, but not limited to, recreational areas.
public transportation facilities, reception areas, restaurants, restaurant/bar combinations,
bars, retail stores, retail service establishments, retail food production and marketing
establishments, waiting rooms, service clubs, public or private cafeterias, or any
workplace or work areas.
(17) Rental complex: A property for which 50 percent or more of units are let by or on
behalf of the same landlord.
(18) Reasonable Distance: means a distance of thirty (30) feet in any direction from an area,
both enclosed and unenclosed, in which Smoking is prohibited.
(19) Retail tobacco store: A retail store utilized primarily for the sale of tobacco products
and accessories and in which the sale of other products is only incidental.
(20) Service Area: means any publicly or privately owned area, including stre ets 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 areas including or adjacent to information kiosks,
automatic teller machines (ATMs), ticket lines, bus stops or shelters, mobile vendor
lines, or cab stands.
(21)Smoking: Includes: (1) The act of inhaling/exhaling, burning or carrying any lighted
tobacco product or by-product including cigarettes, cigars, pipes and hookahs that burn
tobacco or other weed or plant material including Cannabis sativa (marijuana), even if
medically indicated and/or permitted; or (2) Operating using an electronic smoking
device or any other nicotine delivery product.
(22) Thirdhand smoke: residual tobacco contamination that results from off-gassed tobacco
products left behind, after smoking occurs, and builds up on surfaces and furnishings.
(23) Tobacco Product: means (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, little cigars, chewing tobacco, pipe
tobacco, snuff; and (2) Any Electronic Smoking Device. Notwithstanding any provision
of subsections (1) and (2) to the contrary, “Tobacco Product” includes any component,
part, or accessory of a Tobacco Product, whether or not 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.
(24) Unit means a personal dwelling space, even where lacking cooking facilities or private
plumbing facilities, and includes any associated exclusive-use enclosed area, such as,
for example, a private balcony, porch, deck, or patio. "Unit" includes without limitation:
an apartment; a condominium; a townhouse; a room in a long-term health care facility,
Page 9 of 18
ATTACHMENT 1
assisted living facility, or hospital; a hotel or motel room; a room in a single room
occupancy facility; a room in a homeless shelter; a mobile home; a camper vehicle or
tent; a single-family home; a room in a single-family home; and an in-law or second
unit. Unit includes a new unit.
(25) Workplace: Any enclosed area under the control of a public or private employer which
employees normally frequent during the course of employment, including but not
limited to work areas, employee lounges and restrooms, conference and class rooms,
employee cafeterias and hallways.
(c) Prohibition of smoking
(1) Smoking shall be prohibited in the following enclosed and unenclosed places within the
Town of Los Gatos:
a. Elevators and restrooms.
b. Within Public buildings, libraries, Town Hall, and outdoors within 30 feet of
buildings owned, leased, or operated by the Town of Los Gatos or any other public
entity.
c. Medical health facilities and offices.
d. Eating establishments including all indoor and outdoor eating and seating areas.
e. Retail stores (except retail tobacco stores as permitted below).
f. Theaters, auditoriums, museums and art galleries.
g. Hotels and motels, including all enclosed and unenclosed property areas, garages,
parking areas, common areas, gardens, and patios, balconies, decks, and terraces
even if associated with individual rooms.
h. Buses, taxicabs any rideshare vehicle, such as Uber or Lyft or a similar service, and
other means of public transit, and ticket, boarding and waiting areas of public
transit depots.
i. Public recreational areas including all Town and Santa Clara County parks, sports
fields, and trails, and in any parking area associated therewith.
j. Bars, taverns, lounges, nightclubs and dance clubs.
k. Service areas and service lines such as laundromats, gas stations, ATM and ticket
lines..
l. Places of employment whether business or nonprofit entities.
m. Other enclosed or unenclosed Public Places, when being used for a public event,
including but not limited farmer's market, parade, craft fair, Jazz in the Plazz,
Concerts, or any event which may be attended by the general public.
n. All areas in Town Commerical Zones C-1, C-2, C-H, CM and LM accessible to the
general public, including sidewalks, streets, and parking areas, shall be smoke free
zones. Multiple signs must be provided as appropriate to ensure that signs are
readily visible to all users of the area.
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o. Within thirty (30) feet of any smoke free area, building or building entrance,
window, opening or vent into an enclosed area in which smoking is prohibited.
p. Any facility licensed for childcare, family day car e, health care, or community care
even when unoccupied, because of thirdhand smoke dangers.
q. Transportation vehicles of any kind, including cars, bicycles, motorcycles, truck
cabs or truck tractors, when minors being transported.
r. Polling places.
s. Shopping malls.
t. All Town owned and operated vehicles wherever located.
u. Within one hundred (100) feet of all school buildings and grounds, both public and
private, and their parking areas provided, however, that the provisions of this
subdivision shall not apply to smoking in a residence, or within real property
boundary lines of residential real property
(d) Regulation of smoking in multi-unit residences
(1) Smoking prohibited in new and existing units of multi-unit residences.
a. Smoking is prohibited in any new unit of a multi-unit residence.
b. Beginning twelve (12) months after the effective date of this ordinance, smoking
is prohibited in any existing unit of a multi-unit residence.
(2) Smoking is prohibited in enclosed and unenclosed Common Areas.
(3) Smoking is prohibited within 30 feet in any direction of any doorway, window,
opening, or vent, and within 30 feet in any direction of an unenclosed Common Area
of a Multi-Unit Residence.
(4) Every lease or other rental agreement for the occupancy of a new unit or existing
unit in a multi-unit residence entered into, renewed, or continued month-to-
month shall include the following:
a. A clause providing that it is a material breach of the agreement for the tenant,
or any other person subject to the control of the tenant or present by invitation
or permission of the tenant, to:
(i) Smoke or use an electronic smoking device in any common area of the
property other than a designated smoking area;
(ii) Smoke in a new unit;
(iii) Smoke in an existing unit starting twelve (12) months after the
effective date of this ordinance; or
(iv) Violate any law regulating smoking or use of electronic smoking
device anywhere on the property.
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ATTACHMENT 1
b. A clear description of all areas on the property where smoking or the use of
electronic smoking devices is allowed or prohibited.
c. A clause expressly conveying third-party beneficiary status to all tenants of
the multi-unit residence as to provisions of the agreement concerning
smoking and the use of electronic smoking devices. Such clause shall provide
that any tenant of the multi-unit residence may sue another tenant to enforce
these provisions of the agreement but that no tenant shall have the right to
evict another tenant for a breach of any such provision of the agreement.
(5) Whether or not a landlord complies with subsection 4. above, the clauses required
by that subsection shall be implied and incorporated by law into every agreement to
which subsection a. applies and shall become effective as of the earliest possible date
on which the landlord could have made the insertions pursuant to subsection 4.
(6)This chapter shall not create liability in a landlord to any person for a tenant's
breach of any provision concerning smoking or the use of electronic smoking
devices 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.
(7). Failure to enforce any lease or rental agreement provision required by this
chapter shall not affect the right to enforce such provision in the future, nor shall
a waiver of any breach constitute a waiver of any subsequent breach or a waiver
of the provision itself.
(e) Prohibition of smoking in outdoor places of employment
(1) Smoking shall be prohibited in all outdoor places of employment where two or more
employees are required to be in the course of their employment. This includes, without
limitation, work areas, construction sites, temporary offices such as trailers, restroom
facilities, and vehicles.
(f) Other requirements and prohibitions.
(1) No ash can, ashtray, or other smoking waste receptacle shall be placed in any area
in which smoking is prohibited by this chapter.
(2) No person shall knowingly permit smoking in an area under the person's legal or de
facto control in which smoking is prohibited by this chapter or other provisions of
this code, unless otherwise required by state or federal law.
(3) No person shall dispose of used smoking waste within the boundaries of an area in
which smoking use is prohibited by this chapter.
(4) "No smoking" or "smoke-free" signs shall be posted in a quantity and manner
reasonably likely to inform individuals occupying the recreational area and parking
area that smoking is prohibited 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 crossed by a red bar).
Page 12 of 18
ATTACHMENT 1
(5) The presence of smoking waste receptacles in violation of subsection 1.above and
the absence of signs required by subsection 4 above shall not be a defense to a
violation of any provision of this chapter.
(6). No person 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) Exceptions. Nothing in this section shall be construed to restrict smoking in the following
areas, except as described below:
(1) Retail tobacco stores and private membership smoking clubs. To qualify such
entities must be detached and separated from other structures and with a non-shared
ventilation system
(2) Private residences (except when used as a child care facility, medical care facility,
or community care facility, even when unoccupied);
(3) A workplace not open to the public with only one employee in an unattached
building and with a non-shared ventilation system.
(4) For a theatrical production site, if smoking is an integral part of the story in the
theatrical production, an e-cigarette may be utilized.
(5) When the purpose of inhalation is solely olfactory, such as, for example, smoke
from incense.
(6) Private transportation vehicles without minors.
(7) Designated smoking areas. The owner or operator with control over any privately-
owned property may designate an area where smoking is permitted in a location
where smoking would otherwise be prohibited under this article, provided that the
smoking area:
a. Is as small as is practicable to accommodate the number of smokers that are
expected to use the area. Notwithstanding these criteria, an owner may not
designate a smoking area that would be smaller than fifty (50) square feet, or with a
dimension on any side less than five 5) feet.
b. Is located a minimum of 30 feet from any structure where smoking is
prohibited.
c. If enclosed, the structure shall be equipped with a separate ventilation system
that vents smoke through the roof.
d. Is posted with one or more conspicuously displayed signs that identify
the area as a designated smoking area.
e. Is approved by the Town.
(h) Smoking—Penalties.
(1) Any violation of this chapter is declared to be a public nuisance.
Page 13 of 18
ATTACHMENT 1
(2) Any person, who violates this section by failing to post signs or failing to establish
policies and procedures, is guilty of a violation of the Town Code and subject to a civil
penalty of one hundred dollars ($100.00) for the first offense, two hundred dollars
($200) for the second offense, and five hundred dollars ($500) for the third and
subsequent offenses in addition to the cost of enforcing this section which shall include
all costs, staff and attorney time.. Such persons shall be deemed to have committed a
separate offense for each and every day during any portion of which any violation of
this section is committed or permitted.
(3) Any person who smokes where smoking is prohibited when signs are posted in the
required manner is guilty of an infraction and subject to a civil penalty of one hundred
dollars ($100) for the first offense, two hundred dollars ($200) for the second offense,
and five hundred dollars ($500) for the third and subsequent offenses, in addition to the
cost of enforcing this section which shall include all costs, staff and attorney time. Such
persons shall be deemed to have committed a separate offense for each and every day
during any portion of which any violation of this section is committed or permitted..
SECTION II
The Town Council finds and determines that the adoption of this ordinance is exempt
from the requirements of the California Environmental Quality Act (CEQA) per CEQA
Guidelines under the General Rule (Section 15061(b)(3)), which sets forth that the CEQA
applies only to projects which have the potential for causing a significant effect on the
environment. It can be seen with certainty that the proposed Town Code text amendments will
have no significant negative effect on the environment.
SECTION III
If any provision of this ordinance or the application thereof to any person or
circumstances is held invalid, such invalidity shall not affect other provisions or applications of
the ordinance which can be given effect without the invalid provision or application, and to this
end the provisions of this ordinance are severable. This Town Council hereby declar es that it
would have adopted this ordinance irrespective of the invalidity of any particular portion thereof
and intends that the invalid portions should be severed and the balance of the ordinance be
enforced.
SECTION IV
Except as expressly modified in this Ordinance, all other sections set forth in the Los
Gatos Town Code shall remain unchanged and shall be in full force and effect.
SECTION V
This Ordinance shall take effect thirty (30) days after its adoption. In lieu of publication
of the full text of the ordinance within fifteen (15) days after its passage, a summary of the
ordinance may be published at least five (5) days prior to and fifteen (15) days after adoption by
Page 14 of 18
ATTACHMENT 1
the Town Council and a certified copy shall be posted in the office of the City Clerk, pursuant to
GC 36933(c)(1).
SECTION VI
This Ordinance was introduced at a regular meeting of the Town Council of the Town of
Los Gatos on October 20, 2015, and adopted by the following vote as an ordinance of the Town
of Los Gatos at a meeting of the Town Council of the Town of Los Gatos on November 3, 2015.
COUNCIL MEMBERS:
AYES:
NAYS:
ABSENT:
ABSTAIN
SIGNED:
MAYOR OF THE TOWN OF LOS
GATOS
LOS GATOS, CALIFORNIA
ATTEST:
CLERK ADMINISTRATOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
Page 15 of 18
ATTACHMENT 1
ENDNOTES
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