Ord 2254 - Amending Section 18.60.010 to include restrictions on smoking in commercial zoned areas and in multi-unit residencesORDINANCE 2254
AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS
AMENDING SECTION 18.60.010 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 death; 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 deaths 2; and
WHEREAS, secondhand smoke has been repeatedly identified as a health hazard, as
evidenced by the following:
• The U.S. Surgeon General has concluded that there is no risk -free level of exposure to
secondhand smoke 3; and
• The California Air Resources Board has 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 harm 6; and
WHEREAS, any exposure to secondhand smoke 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 the number and proximity of smokers 7,
and
• Smoking cigarettes near building entryways can increase air pollution levels by more
than twice background levels, with maximum levels reaching the "hazardous" range on
the United States EPA's Air Quality Index 8; 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 States' I; and
• Exposure to secondhand smoke increases the risk of coronary heart disease by about 25-
30 percent and increases the risk of stroke by 20 -30 percent; 12 and
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 as documented in 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 are contained in electronic smoking devices; 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
• 55.7 percent of smokers admit to littering cigarettes in the last month; 27 and
Page 2 of 17
Ordinance 2254 May 17, 2016
• 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 the
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 Act 32 mean that one in seven Californians
faces secondhand smoke exposure at work 33; 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, 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 -64 percent of residents of
multi -unit housing report secondhand smoke drifting into their home; and
Page 3 of 17
Ordinance 2254 May 17, 2016
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 occur 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- related deaths, is a leading cause of
fire- related 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 occurring as a result of a smoking related fire is not the smoker
whose cigarette started the fire, and 25 percent of those who die are neighbors or friends
of the smoker;
• 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, cleanin� the air, and ventilating buildings cannot
completely prevent secondhand smoke exposure;4 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 -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 -90 percent of multi -unit housing residents
who experience secondhand smoke in their home are bothered by the secondhand smoke
incursion; and
Page 4 of 17
Ordinance 2254 May 17, 2016
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 %);
• 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 0.05 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 amends and adds new sections to the Los Gatos Town Municipal Code
Section 18.60.010 relating to smoking in commercial zones, within multi - family housing,
smoking distance from doors, windows and similar openings, and outdoor dining establishments.
NOW, THEREFORE, THE TOWN COUNCIL OF THE TOWN OF LOS GATOS
DOES ORDAIN AS FOLLOWS:
Page 5 of 17
Ordinance 2254 May 17, 2016
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, bronchospasm
and 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 smokefree environments. ASHRAE 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 smokefree 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 smokefree and non-
toxic air, and to recognize that the need to breathe smokefree 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, cafe, 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: Includes any such 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 device, 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.
Page 6 of 17
Ordinance 2254 May 17, 2016
(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: 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; (3) A single - family home; and (4) 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.
(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.
Page 7 of 17
Ordinance 2254 May 17, 2016
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 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 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,
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
Page 8 of 17
Ordinance 2254 May 17, 2016
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..
1. 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 to farmer's market, parade, craft fair, concerts, or any
event which may be attended by the general public.
n. All areas in Town Commerical Zones C -1, C -2, CH, CM and LM accessible to the
general public, including sidewalks, streets, and parking areas. Multiple signs
declaring the area smokefree must be provided as appropriate to ensure that signs
are readily visible to all users of the area.
o. Within thirty (30) feet of any smokefree 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 care, health care, or community care
even when unoccupied.
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.
Page 9 of 17
Ordinance 2254 May 17, 2016
t. All Town owned and operated vehicles wherever located.
u. Within one hundred (100) feet of all school buildings and grounds, on both public
and private property, 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.
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 4, 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
Page 10 of 17
Ordinance 2254 May 17, 2016
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 "smokefree" signs shall be posted in a quantity and manner
reasonably likely to inform individuals occupying the smokefree 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).
(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 from other structures and maintain 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.
Page 11 of 17
Ordinance 2254 May 17, 2016
(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.
(2) Any person who violates this section by failing to post signs or failing to establish
required 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
occurs or is permitted to occur.
(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..
Page 12 of 17
Ordinance 2254 May 17, 2016
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 to be 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. The Town Council
hereby declares 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
the Town Council and a certified copy shall be posted in the office of the Town Clerk, pursuant
to GC 36933(c)(1).
Page 13 of 17
Ordinance 2254 May 17, 2016
SECTION VI
This Ordinance was introduced at a regular meeting of the Town Council of the Town of
Los Gatos on the 3d day of May 2016, and adopted by the following vote as an ordinance of the
Town of Los Gatos at a regular meeting of the Town Council of the Town of Los Gatos on the
17s' day of May 2016.
AYES: Steve Leonardis, Marcia Jensen, Rob Rennie, Marico Sayoc, Mayor Barbara Spector
NAYS: None
ABSENT: None
ABSTAIN: None
SIGNED:
MAYOR OF TH TOWN OF LOS GATOS
LOS G S, IF RNIA
D
ATTEST:.
CLERK ADMIN TRATOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
Page 14 of 17
Ordinance 2254 May 17, 2016
ENDNOTES
1 U.S. Department of Health and Human Services. The Health Consequences of Smoking — 50 Years of Progress A
Report of the Surgeon General Executive Summary.; 2014. Available at:
www.surgeongeneral.gov /library/ reports /50- years -of- progress /exec -su mmary.pdf
z U.S. Surgeon General. Factsheet: The Health Consequences of Smoking -50 Years of Progress: A Report of
the Surgeon General. 2014. Available at: www.surgeongeneral.gov /library /reports /50- years -of-
pro¢ress /factsheet.html. Accessed June 2, 2015.
3 U.S. Department of Health and Human Services. 2006 Surgeon General's Report —The Health Consequences of
Involuntary Exposure to Tobacco Smoke. 2006. Available at
www.cdc.gov/ tobacco /data_ statistics /sgr /2006 /index.htm. Accessed June 14, 2014
4 California Environmental Protection Agency Air Resources Board. Environmental Tobacco Smoke: A Toxic Air
Contaminant. California Environmental Protection Agency Air Resources Fact Sheet.; 2006. Available at:
www. arb. ca. gov /toxics /ets /factsheetets.pdf
5 California Environmental Protection Agency Air Resource Board. California Identifies Secondhand Smoke as a
"Toxic Air Contaminant." News Release. 2006. Available at: www. arb.ca.gov /newsrel /nr012606.htm
6 Chemicals known to the state to cause cancer or reproductive toxicity. State of California Environmental
Agency Office of Health Hazard Assessment Safe Drinking Water and Toxic Enforcement Act of 1986. 2015.
Available at: www.oehha.ca.gov /prop6S /prop65 _list /files /P65single012315.pdf
Klepeis N, Ott W, Switzer P. Real -Time Monitoring of Outdoor Environmental Tobacco Smoke Concentrations:
A Pilot Study.; 2004. Available at: http: / /exposurescience.org/pub /reports /Outdoor_ETS_Final.pdf
8 Klepeis NE, Ott WR, Switzer P. Real -time measurement of outdoor tobacco smoke particles. J Air Waste
Manag Assoc. 2007;57(August 2013):522 -534. doi:10.3155/3047- 3289.57.5.522.
9 Repace J. Benefits of Smokefree Regulations in Outdoor Settings: Beaches, Golf Courses, Parks, Patios, and in
Motor Vehicles. William Mitchell Law Rev. 2008;34(4):1621 -1638. Available at:
www.repace.com/pdf/Repace_Ch_15_Outdoor Sm oke. pdf
10 Centers for Disease Control and Prevention. Secondhand Smoke (SHS) Fads. 2014. Available at:
www.cdc.gov/ tobacco / data_ statistics / fact_ sheets / secondhand _smoke /general_facts /index.htm. Accessed June
13, 2014
11 Institute of Medicine. Secondhand Smoke Exposure and Cardiovascular Effects: Making Sense of the Evidence.
Washington, DC; 2010. Available at: www.iom.edu/en/ Reports / 2009 /Secondhand - Smoke - Exposure-
a ndCardiovascular- Effects -Ma king - Sense -of- the - Evidence.aspx.
12 U.S. Department of Health and Human Services. The Health Consequences of Smoking — 50 Years of Progress
A Report of the Surgeon General.; 2014. Available at: www.surgeongeneral.gov /library /reports /50- years-
ofprogress /fu I I- report. pdf.
13 Lightwood J, Glantz S a. The effect of the California tobacco control program on smoking prevalence, cigarette
consumption, and healthcare costs: 1989 -2008. PLoS One. 2013;8(2):e47145.
doi :10.1371 /jou rn a I. pone.0047145
14 Guide to Community Preventive Services. Reducing Tobacco Use and Secondhand Smoke Exposure: SmokeFree
Policies. 2012. Available at: www. thecommunityguide. org / tobacco /smokefreepolicies.html. Accessed July
29, 2014
15 California Department of Public Health California Tobacco Control Program. State Health Officer's Report on
E- Cigarettes: A Community Health Threat. Sacramento, CA Available at:
http: / /cdph.ca.gov/ programs /tobacco /Documents /Media /State Health -e -cig report.pdf
16 Grana R, Benowitz N, Glantz S. Background Paper on E- cigarettes (Electronic Nicotine Delivery Systems).;
2013. Available at: http: / /escholarship.org/uc /item /13p2b72n
17 Williams M, Villarreal A, Bozhilov K, Lin S, Talbot P. Metal and silicate particles including nanoparticles are
present in electronic cigarette cartomizer fluid and aerosol. PLoS One. 2013;8(3):e57987.
Page 15 of 17
Ordinance 2254 May 17, 2016
doi: 10. 137 1/jou rn a I. po n e.0057987.
18 German Cancer Research Center. "Electronic Cigarettes - An Overview" Red Series Tobacco Prevention and
Control. Heidelberg; 2013. Available at:
www.dkfz.de /de /tabakkontrolle / download /Publikationen /RoteReihe /Band 19_e- cigarettes_an_overview.pdf
19 Goniewicz ML, Knysak 1, Gawron M, et al. Levels of selected carcinogens and toxicants in vapour from
electronic cigarettes. Tob Control. 2013;1:1 -8. doi:10. 1136 /tobaccocontrol- 2012- 050859.
20 Schripp T, Markewitz D, Uhde E, Salthammer T. Does e- cigarette consumption cause passive vaping? Indoor
Air. 2013;23(1):25 -31. doi:10.1111A.1600- 0668.2012.00792.x.
21 Schober W, Szendrei K, Matzen W, et al. Use of electronic cigarettes (e- cigarettes) impairs indoor air quality
and increases FeNO levels of e- cigarette consumers. Int J Hyg Environ Health. 2013.
doi:10.1016 /j. ij heh.2013.11.003.
22 McMillen R, Maduka 1, Winickoff J. Use of emerging tobacco products in the United States. J Environ Public
Health. 2012;2012. doi:30.1155/2012/989474
23 Tobacco Education and Research Oversight Committee (TEROC). Position on Electronic- Cigarettes (ecigarettes).;
2013. Available at: www.cdph.ca.gov / services/ boards /teroc /Documents /Positions /TEROC Official
Position of E- Cigs_lune 2013_final.pdf.
24 United States Department of Agriculture. Tobacco Outlook. Electron Outlook Rep from Econ Res Serv. 2007;TBS-
263:TBS -263. Available at: http: / /usda.mannlib. cornell. edu/ usda/ ers/ TBS /2000s /2007/TBS- 10- 24- 2007.pdf
25 Schneider JE, Peterson NA, Kiss N, Ebeid O, Doyle AS. Tobacco litter costs and public policy: a framework
and methodology for considering the use of fees to offset abatement costs. Tob Control. 2011;20 Suppl 1(Suppl
1):136 -41. doi:10.1136/tc.2010.041707
26 Rath JM, Rubenstein R a, Curry LE, Shank SE, Cartwright JC. Cigarette litter: Smokers' attitudes and
behaviors. IntJ Environ Res Public Health. 2012;9(6):2189 -203. doi:10.3390 /ijerph9062189.
27 Ocean Conservancy. Tracking Trash: 25 Years of Action for the Ocean. Washington, DC; 2011.
38 Novotny TE, Lum K, Smith E, Wang V, Barnes R. Cigarettes butts and the case for an environmental policy on
hazardous cigarette waste. Int J Environ Res Public Health. 2009;6(5):1691 -705. doi:10.3390 /ijerph6051691.
29 Mowry JB, Spyker D a, Cantilena LR, Bailey JE, Ford M. 2012 Annual report of the American Association of
Poison Control Centers' National Poison Data System (NPDS): 30th annual report. Clin Toxicol.
2013;51(10):949 -1229. doi :10.3109/15563650.2013.863906
M Lewander W, Wine H, Carnevale R, et al. Ingestion of cigarettes and cigarette butts by children -- Rhode Island,
January 1994 -July 1996. Morb Mortal Wkly Rep. 1997;40(6):125 -128. Available at:
www.cdc.gov/mmwr/preview/mmwrhtml/00046181.htm
31 Cal. Labor Code § 6404.5.; 1995.
32 AI- Delaimy W, White M, Mills A, et al. Two Decades of the California Tobacco Control Program: California
Tobacco Survey, 1990- 2008.; 2010. Available at:
www.cdph.ca.gov /programs /tobacco/ Documents/ Resources /Publications /CDPH_CTS2008 summary
report_final.pdf
33 Goodwin Simon Victoria Research. Study of California Voters' Attitudes About Secondhand Smoke Exposure.
Cent Tob Policy Organ. 2008. Available at: http:/ /center4tobaccopolicy .org/tobacco- policy /smokefree - outdoor-
T-DPS- 150055/ 735 E -3 areas / secondhand - smoke - california- voters/
34 American Nonsmokers' Rights Foundation. U.S. 100 % Smokefree Laws in Non - Hospitality Workplaces AND
Restaurants AND Bars American Nonsmokers Rights Foundation.; 2015. Available at:
www.nosmoke.org/pdf/WRBLawsMap.pdf
3s American Lung Association in California the Center for Tobacco Policy and Organizing. Local Policies on the
Use of Electronic Cigarettes. 2015. Available at:
http: // center4tobaccopolicy .org /wpcontent /uploads /2015/04 /Local - Policies -on- Use- of- E -Cigs- April- 2015.pdf
36 Association AL. State of Tobacco Control 2015.; 2015. Available at:
www.lung.org /associations /states /californ ia/ assets /pdfs /sotc- 2015 /sotc- 2015_ca -fu II- report.pdf
37 Centers for Disease Control and Prevention (CDC). Secondhand Smoke: An Unequal Danger. CDC Vital
Signs. 2015. Available at: www.cdc.gov /vitalsigns /pdf /2015- 02- vitalsigns.pdf.
Page 16 of 17
Ordinance 2254 May 17, 2016
n Snyder K, Vick JH, King BA. Smokefree multiunit housing: a review of the scientific literature. Tob
Control. 2015;0:1- 12.doi:10. 1136 /tobaccocontrol - 2014 - 051849.
39 Martinez - Sanchez 1M, Sureda X, Fu M, et al. Secondhand smoke exposure at home: Assessment by
biomarkers and airborne markers. Environ Res. 2014;133:111 -116. doi :10.1016 /j.envres.2014.05.013.
Q Kuschner WG, Reddy S, Mehrotra N, Paintal HS. Electronic cigarettes and thirdhand tobacco smoke: two
emerging health care challenges for the primary care provider. Int J Gen Med. 2011;4:115 -20.
doi:10.2147/IJ G M. S 16908
41 Matt GE, Quintana PJE, Zakarian JIM, et al. When smokers move out and non - smokers move in: residential
thirdhand smoke pollution and exposure. Tob Control. 2011;20(1):ei. doi:30.1136/tc.2010.037382.
4' Sleiman M, Gundel L a, Pankow JF, Jacob P, Singer BC, Destaillats H. Formation of carcinogens indoors by
surface - mediated reactions of nicotine with nitrous acid, leading to potential thirdhand smoke hazards. Proc
Natl Acad Sci U 5 A. 2010;107(15):6576 -81. doi:10.1073/pnas.0912820107
43 Hang B, Sarker AH, Havel C, et al. Thirdhand smoke causes DNA damage in human cells. Mutagenesis.
2013;28(4):381 -91. doi:10.1093 /mutage /get013.
44 U.S. Fire Administration. U.S. fire statistics. 2015. Available at: www.usfa.fema.gov /data /statistics /.
Accessed February 11, 2015
u Hall JRJ. The Smoke - Material Fire Problem. National Fire Protection Association Fire Analysis and
Research Division. Quincy, MA; 2013. Available at: www.nfpa.org/- /media /Files /Research /NFPA
reports /Major Causes /ossmoking.pdf
06 U.S. Fire Administration. U.S. fire deaths, fire death rates and risk of dying in a fire. 2014. Available at:
www.usfa.fema.gov / data / statistics /fire_death_rates.htmi. Accessed February 11, 2015.
47 U.S. Fire Administration. Behavioral Mitigation of Smoking Fires.; 2006. Available at:
www.usfa.dhs.gov/downloads/pdf/publications/fa-302-508.pdf
a U.S. Department of Health and Human Services. 2006 Surgeon General's Report -The Health
Consequences of Involuntary Exposure to Tobacco Smoke. 2006. Available at:
www.cdc.gov/ tobacco /data_ statistics /sgr /2006 /index.htm. Accessed June 14, 2014
49 King B a, Babb SD, Tynan M a, Gerzoff RB. National and state estimates of secondhand smoke infiltration
among U.S. multiunit housing residents. Nicotine Tob Res. 2013;15(7):1316 -21. doi:10.1093 /ntr /nts254.
SO Chambers C, Sung H, Max W. Home Exposure to Secondhand Smoke among People Living in Multiunit
Housing and Single Family Housing: A Study of California Adults, 2003 - 2012. J Urban Heal. 2014.
doi:30.3007 /s 11524 - 014 - 9919 -y.
51 Wilson KM, Klein JD, Blumkin AK, Gottlieb M, Winickoff JP. Tobacco -smoke exposure in children who
live in multiunit housing. Pediatrics. 2011;127(1):85 -92. doi:30.1542 /peds.2010 -2046.
52 American Lung Association in California the Center for Tobacco Policy and Organizing. Secondhand
Smoke Survey: California Voters' Attitudes about Secondhand Smoke Exposure. 2008. Available at:
T -DPS- 150055/ 735 E-4 htto://center4tobaccopolicy.org/wp- content /unloads/ 2013 /06 /Summary- of- Kev- Findines-
SHS- Poll- OverallResults- November- 2008.odf. Accessed February 11, 2015
53 Ops. Cal. Leg. Counsel, No. 21547 (Sept. 23, 1999) (Smoking Bans: Residential Rental Property) (on file
with ChangeLab Solutions)
6° American Lung Association in California Center for Tobacco Policy and Organizing. Local California
Smokefree- Housing Policies Detailed Analysis December 2013. 2013. Available at:
http: / /ce nter4tobacco pol icy. org /wp- content /uploads /2013 /12 /Loca I -Ca I iforn ia- Smokefree -H ou si ng-
PoliciesDeta i I ed- Analysis - December -2013. pdf
ss American Lung Association in California Center for Tobacco Policy and Organizing. Matrix of Strong Local
Smokefree Multi -Unit Housing Ordinances December 2013. Sacramento, CA; 2013. Available at:
http: / /center4tobaccopo I i cy. org/wp- content /uploads /2013 /12 /Matrix -of- Strong -Loca I- Smokefree -M u lti U n it-
Housi ng- Ordinances - December- 2013.pdf.
56 ChangeLab Solutions. There is No Constitutional Right to Smoke (CA Version. Oakland, CA; 2005.
Available at: http: / /changelabsolutions .org/publications /no- right -to- smoke -CA.
Page 17 of 17
Ordinance 2254 May 17, 2016