HomeMy WebLinkAbout2024-08-20; City Council; CS-475; AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, ADDING CHAPTER 6.15 TO THE CARLSBAD MUNICIPAL CODE TO PROHIBIT SMOKING IN MULTI-UNIT RESIDENCES
ORDINANCE NO. CS-475
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, ADDING CHAPTER 6.15 TO THE CARLSBAD MUNICIPAL CODE
TO PROHIBIT SMOKING IN MULTI-UNIT RESIDENCES
CASE NAME: SMOKE-FREE MULTI-UNIT HOUSING ORDINANCE
CASE NO.: ZCA2024-0004
WHEREAS, tobacco use causes death and disease and continues to be an urgent public health
threat; and
WHEREAS, exposure to secondhand smoke causes death and disease; and
WHEREAS, nonsmokers who live in multi-unit residences can be exposed to neighbors'
secondhand smoke; and
WHEREAS, smoking is a leading cause of fire deaths and fire-related injury, and contributes to
fire-related health inequities; and
WHEREAS, the U.S. 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 exposures; and
WHEREAS, several studies have confirmed that smoke free multi-unit residential policies are
the most effective method to fully reduce secondhand smoke exposure in multi-unit residences; and
WHEREAS, there is no constitutional right to smoke; and
WHEREAS, a local ordinance that authorizes residential rental agreements to include a
prohibition on smoking within rental units is not prohibited by California law; and
WHEREAS, local governments have broad latitude to declare nuisances and are not constrained
by prior definitions of nuisance.
NOW, THEREFORE, the City Council of the City of Carlsbad, California, ordains as follows that:
SECTION I: The above recitations are true and correct.
SECTION II: The Carlsbad Municipal Code is amended by adding Chapter 6.15 to read as
follows:
Chapter 6.15
PROHIBITION OF SMOKING IN MULTIUNIT RESIDENCES
Sections:
6.15.010 Purpose and intent.
6.15.020 Definitions.
6.15.030 Smoking restrictions.
6.15.040 Lease agreement requirements.
6.15.050 Noticing requirements for rental properties
6.15.060 Noticing requirements for common interest developments.
6.15.070 Nuisance.
6.15.080 Private enforcement.
6.15.090 Limitations and exceptions.
6.15.100 Rules of construction.
6.15.110 Severability.
6.15.010 Purpose and intent.
The purpose of this chapter is to prohibit the smoking of tobacco, or any other weed or plant or
substance, in multiunit residences or common areas. This chapter protects the public from
nonconsensual exposure by reducing the number of locations in the city where exposure to
secondhand smoke may occur.
6.15.020 Definitions.
For the purposes of this chapter the following definitions shall govern unless the context clearly
requires otherwise:
“Common area” means every enclosed area and unenclosed area of a multiunit residential
development that residents of more than one unit are entitled to enter or use, including
entryways, halls, pathways, lobbies, courtyards, elevators, stairs, community rooms, playgrounds,
gym facilities, swimming pools, pool areas, offices, parking garages, parking lots, grassy or
landscaped areas, restrooms, laundry rooms, cooking areas, and eating areas.
“Common interest development” means:
1.A community apartment project as defined in California Civil Code section 4105, or any
successor legislation;
2.A condominium project as defined in California Civil Code section 4125, or any successor
legislation;
3.A planned development as defined in California Civil Code section 4175, or any successor
legislation; and
4.A stock cooperative as defined in California Civil Code section 4190, or any successor
legislation.
“Designated smoking area” means an area where smoking is permitted, as designated by a landlord,
HOA or other person with legal control of the premises and has been established and maintained
in accordance with the provisions of this chapter.
“Electronic smoking device” means any device that may be used to deliver any aerosolized or vaporized
substance to the person inhaling from the device, including an e-cigarette, e-cigar, e-pipe, vape
pen, or e-hookah.
“Enclosed area” means all space between a floor and a ceiling that is bounded by walls, doorways, or
windows, whether open or closed, covering more than 50 percent of the combined surface area
of the vertical planes constituting the perimeter of the area. A wall includes any retractable
divider, garage door, or other physical barrier, whether temporary or permanent.
“Existing unit” means a unit in existence on or before January 1, 2025.
“Homeowners’ association” or “HOA” means an organization or entity established for the purpose of
managing or maintaining a common interest development. A homeowners’ association shall also
mean “association” as defined in California Civil Code section 4080, or any successor legislation.
“Landlord” means any person or agent of a person who owns, manages, or is otherwise legally
responsible for a unit in a multiunit residence leased to a residential tenant. For purposes of this
ordinance, a tenant who sublets their unit (e.g., a sublessor) is not a landlord.
“Multiunit residential development” means property containing three or more units, including
apartment buildings, common interest developments, senior and assisted living facilities, and
long-term health care facilities. Multiunit residential developments do not include the following:
1.a hotel or motel that meets the requirements of California Civil Code section 1940(b)(2);
2.a mobile home park;
3.a campground;
4.a duplex building designed exclusively for occupancy by two households living independently
of each other and containing two units; except if one unit is used as a health care facility
subject to licensing requirements;
5.a single-family home designed as a free-standing unit which is separated (detached) from any
other unit, except if used as a health care facility subject to licensing requirements; and
6.a single-family home with an accessory dwelling unit and/or junior accessory dwelling unit
permitted pursuant to California Government Code sections 65852.1, 65852.2, or 65852.22
or Section 21.10.030 of this code, except where the accessory dwelling unit or junior
accessory dwelling unit is used as a health care facility subject to licensing requirements.
“New lease” means any lease or rental agreement or renewal or extension of lease or rental agreement
that allows a person to occupy a unit that is entered into on or after January 1, 2025.
“New unit” means a unit that is issued a certificate of occupancy and approved for occupancy after
January 1, 2025, or any unit that is leased or rented for residential use for the first time after
January 1, 2025.
“Nonsmoking area” means any area in which smoking is prohibited by
1.this chapter or another law;
2.binding agreement relating to the ownership, occupancy, or use of real property; or
3.a person with legal control over the area.
“Person” means any natural person, partnership, cooperative association, corporation, personal
representative, receiver, trustee, assignee, or any other legal entity, including government
agencies.
“Rent” means the consideration charged, whether or not received, for the use or possession or the
right to the use or possession of any room or rooms or portion thereof for dwelling, lodging, or
sleeping purposes, valued in money, whether to be received in money, goods, labor or otherwise,
including all receipts, cash, credits, and property and services of any kind of nature, without any
deduction therefrom whatsoever.
“Smoke” or “smoking” means and includes (1) inhaling, exhaling, or burning, any tobacco, nicotine,
cannabis or plant product, or other substance, whether natural or synthetic; (2) carrying any
lighted, heated or activated tobacco, nicotine, marijuana, or plant product, or other substance,
whether natural or synthetic, intended for inhalation; or (3) using an “electronic smoking device.”
“Unenclosed area” means any area that is not an enclosed area.
“Unit” means a personal dwelling space, even one lacking cooking facilities or private plumbing
facilities, and includes any associated exclusive-use area, such as a private balcony, porch, deck,
garage, parking space, or patio. “Unit” includes, without limitation, an apartment; a condominium;
a townhouse; a room in a senior facility; a room in a long-term health care facility, assisted living
facility, community care facility, or hospital; a room in a hotel or motel; a dormitory 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; and an accessory dwelling unit or junior accessory dwelling unit.
6.15.030 Smoking restrictions.
A.Effective January 1, 2025, smoking is prohibited anywhere on the premises of a multiunit
residential development as follows:
1.In all new units;
2.In all existing owner-occupied units within a common interest development;
3.In all existing tenant-occupied units governed by a new lease or renewal or extension of lease
or month to month tenancy; and
4.In all common areas.
B.Notwithstanding subsection A, smoking is permitted in designated smoking areas if they meet the
following conditions:
1.Are not an enclosed area;
2.Are at least twenty-five feet from any:
a.doorway, window, opening, or other vent into an enclosed area, including an enclosed
area not regulated by this chapter;
b.enclosed or unenclosed recreation area such as a tennis court, swimming pool, and
picnic area; or
c.enclosed or unenclosed area primarily used by children such as a playground.
3.Have a clearly marked perimeter;
4.Are identified by conspicuous signs installed and maintained by the landlord, HOA or other
person with legal control over the designated smoking area; and
5.Have receptacles designed for and primarily used for disposal of smoking waste and that are
maintained free of smoking-related litter, including cigarette butts.
6.Must not overlap with any area in which smoking is otherwise prohibited by this chapter or
other provisions of state or federal law.
C.No person with legal control over any nonsmoking area of a multiunit residential development
shall permit smoking in the nonsmoking area, except as provided in subsection B.
D.No person with legal control over a common area in which smoking is prohibited by this chapter
or other law shall permit the presence of ashtrays, ashcans, or other receptacles designed for or
primarily used for disposal of smoking waste within the area.
6.15.040 Lease agreement requirements.
A.After January 1, 2025, every lease or other rental agreement for the occupancy of a unit in a
multiunit residential development entered into, renewed, or continued month-to-month shall
include the following provisions:
1.A clause providing that it is a material breach of the agreement for the tenant to knowingly
and intentionally allow, or engage in, smoking in the unit, including exclusive-use areas such
as balconies, porches, or patios. The clause shall be substantially similar to the following:
It is a material breach of this agreement for tenant to engage in smoking in the unit or
exclusive use areas such as balconies, porches, or patios. Moreover, it is a material
breach of this agreement for tenant to knowingly or intentionally allow any other person
subject to the control of the tenant to engage in smoking in the unit or exclusive use
areas such as balconies, porches, or patios.
2.A clause providing that it is a material breach of the agreement for tenant to knowingly and
intentionally allow, or engage in, smoking in any common area of the multiunit residence,
including entryways, playgrounds, pool areas, walking paths, or sitting areas, except in an
outdoor designated smoking area. The clause shall be substantially similar to the following:
It is a material breach of this agreement for tenant to engage in smoking in any common
area of the property, including entryways, playgrounds, pool areas, walking paths, or
sitting areas, except in an outdoor designated smoking area, if one exists. In addition, it
is a material breach of this agreement for tenant to knowingly or intentionally allow any
other person subject to the control of the tenant to engage in smoking in any common
area of the property, including entryways, playgrounds, pool areas, walking paths, or
sitting areas, except in an outdoor designated smoking area, if one exists.
3.A clause providing that it is a material breach of the agreement for tenant to violate any law
regulating smoking while anywhere on the property, or to allow any other person subject to
the control of the tenant to engage in such behavior. The clause shall be substantially similar
to the following:
It is a material breach of this agreement for tenant to violate any law regulating smoking
while anywhere on the property. Moreover, it is a material breach of this agreement for
tenant to knowingly or intentionally allow any other person subject to the control of the
tenant to violate any law regulating smoking while anywhere on the property. Tenant
will inform tenant’s guests and/or subleases of the non-smoking policy. Tenant will also
promptly give landlord a written statement of any incident where tenant observes
smoking not allowed by this policy or believes smoke is migrating into the tenant’s unit
from sources outside the tenant’s unit.
Violation of the above is just cause for the landlord to refuse to renew a lease for
another lease term or to terminate tenancy. Landlord shall first provide an opportunity
to the tenant to cure the violation, then may issue a notice of non-renewal or to
terminate tenancy for a subsequent violation.
4.A clause expressly conveying third-party beneficiary status to all occupants of the multiunit
residential development as to the smoking provisions of the lease or other rental agreement.
The clause shall be substantially similar to the following:
Other occupants of the property are express third-party beneficiaries of the provisions
in this agreement regarding smoking. As third-party beneficiaries, other occupants of
the property may enforce the smoking provisions by any lawful means, including by
bringing a civil action in a court of law against the tenant or occupant smoking or the
person knowingly or intentionally allowing any other person subject to the control of
the tenant to violate any law regulating smoking while anywhere on the property. This
provision does not create a private right of action for a tenant or occupant against the
landlord for any damages the tenant or occupant may suffer due to another tenant’s
breach of any smoking provision.
B.Whether or not a landlord complies with subsection A above, the clauses required by subsection
A shall be implied and incorporated by law into every agreement to which subsection A applies as
of January 1, 2025.
C.A tenant who breaches, or allows any other person subject to the control of the tenant to breach,
a smoking provision of a lease or other rental agreement for the occupancy of a unit in a multiunit
residential development shall be liable for the breach to (1) the landlord; and (2) any occupant of
the multiunit residential development who is exposed to smoke or who suffers damages as a result
of the breach. This chapter does not create a private right of action for a tenant or other occupant
against a landlord for any damages the tenant or occupant may suffer due to another tenant's
breach of any smoking provision in a lease or other rental agreement, so long as the landlord has
fully complied with the terms of this chapter.
D.Failure to enforce any smoking provision required by this chapter shall not affect the right to
enforce the 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.
6.15.050 Noticing requirements for rental properties.
The following requirements apply to multiunit residential developments, other than units in a common
interest development that are not being rented:
A.On or before January 1, 2025, every landlord shall deliver to each unit a written notice clearly
stating:
1.All new units and existing units governed by a new lease or other rental agreement are
designated nonsmoking units and smoking is prohibited in a unit, including any associated
private balcony, porch, deck, or patio, as of January 1, 2025; and
2.Smoking in all common areas or outdoor areas except for specifically designated smoking
areas, is prohibited as of January 1, 2025.
B.As of January 1, 2025, the person or persons with legal control over common areas shall post and
maintain clear and unambiguous “No Smoking” signs at entrances and exits, in sufficient numbers
and locations in common areas, and in conspicuous places adjoining the property grounds to make
it obvious to a reasonable person that smoking is prohibited. The absence of signs shall not be a
defense to a violation of any provision of this chapter. “No Smoking” signs are not required inside
or on doorways of units.
C.Landlords with knowledge of violations shall take reasonable steps to investigate and enforce the
regulations, including a written notice to the resident of the landlord’s knowledge of the violation,
a request to cease the violation, and the course of action to be taken if the violation is not
corrected, including but not limited to eviction for failure to cease smoking on the property. The
landlord shall also distribute resources provided for free by the city to assist with nicotine
dependence, such as referrals to a quitline or online resources.
6.15.060 Requirements for common interest developments.
The following requirements apply to common interest developments:
A.On or before January 1, 2025, the HOA shall provide to all owners of units a written notice clearly
stating that:
1.Smoking is prohibited in units, including any associated private balcony, porch, deck, or patio,
as of January 1, 2025; and
2.Smoking is prohibited in all common areas, except for specifically designated smoking areas,
as of January 1, 2025.
B.As of January 1, 2025, every seller of a unit shall provide prospective buyers or renters, a written
notice clearly stating that:
1.Smoking is prohibited in units, including any associated private balcony, porch, deck, or patio,
as of January 1, 2025; and
2.Smoking is prohibited in all common areas, except for specifically designated smoking areas,
as of January 1, 2025.
C.Every covenant, condition and restriction (CC&R) applicable to a multiunit residential
development adopted or amended after January 1, 2025, shall include the conditions set forth
below:
1.A clause providing that it is a material breach of the CC&Rs to allow or engage in smoking in
any unit, including exclusive-use areas, such as balconies, porches, or patios;
2.A clause providing that it is a material breach of the CC&Rs for an occupant or any other
person subject to the control of the occupant to engage in smoking in any common area of
the multiunit residence other than a designated smoking area;
3.A clause providing that it is a material breach of the CC&Rs for an occupant or any other
person subject to the control of the occupant to violate any law regulating smoking while
anywhere on the property; and
4.A clause expressly conveying third-party beneficiary status to all occupants of the multi-unit
residential development as to the smoking provisions of the CC&Rs.
D.As of January 1, 2025, the HOA, or any person having legal ownership or control over common
areas, shall post and maintain clear and unambiguous “No Smoking” signs in sufficient numbers
and locations in the common interest development to make it obvious to a reasonable person that
smoking is prohibited throughout the common interest development. The absence of signs shall
not be a defense to a violation of any provision of this chapter.
E.HOAs with knowledge of violations shall take reasonable steps to investigate and enforce the
regulations, including a written notice to the resident of the HOA’s knowledge of the violation, a
request to cease the violation, and the course of action to be taken if the violation is not corrected.
The HOA shall also distribute resources provided for free by the city to assist with nicotine
dependence, such as referrals to a quitline or online resources.
F.An owner-occupant who breaches or allows any other person subject to the control of the owner-
occupant to breach a smoking provision of the CC&R shall be liable for the breach to (1) the HOA;
and (2) any occupant of the multiunit residence who is exposed to smoke or who suffers damages
as a result of the breach. This chapter does not create a private right of action for an owner-
occupant or other occupant against a HOA for any damages the owner-occupant or occupant may
suffer due to another owner-occupant's breach of any smoking provision, so long as the HOA has
fully complied with the terms of this chapter.
G.Failure to enforce any smoking provision required by this chapter shall not affect the right to
enforce the 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.
6.15.070 Nuisance.
A.Any smoking in violation of this chapter is a public nuisance.
B.Nonconsensual exposure to smoke from smoking occurring on or drifting into residential property
is a nuisance.
6.15.080 Private enforcement.
A.Any person, including a legal entity, organization, or a government agency, acting for the interests
of itself, its members, or the general public, may bring a civil action against any tenant or owner-
occupant violating the provisions of this chapter. Upon proof of a violation, a court shall award the
following:
1.Damages in the amount of either:
a.Upon proof, actual damages; or
b.With insufficient or no proof of actual damages, $500 for each violation of this chapter
("Statutory Damages"). Each day of a continuing violation is a separate violation.
Notwithstanding any other provision of this chapter, no person suing on behalf of the
general public shall recover Statutory Damages based upon a violation of this chapter if
a previous claim brought on behalf of the general public by another person for Statutory
Damages and based upon the same violation has been adjudicated, whether or not the
person bringing the subsequent claim was a party to the prior adjudication.
2.Exemplary damages, where it is proven by clear and convincing evidence that the defendant
(i.e., person violating this chapter) is guilty of oppression, fraud, malice, retaliation, or
conscious disregard for the public health.
3.This section does not create a private right of action for a tenant against a landlord, or an
owner-occupant against a HOA, for any damages the tenant or owner-occupant may suffer
due to another occupant’s breach of any smoking provision in a lease or other rental
agreement or CC&R, so long as the landlord or HOA has fully complied with the terms of this
chapter.
C.The person may also bring a civil action to enforce this chapter by way of a conditional judgment
or an injunction. Upon proof of a violation, the court shall issue a conditional judgment or an
injunction.
D.Notwithstanding any legal or equitable bar against a person seeking relief on their own behalf, a
person may bring an action to enforce this chapter solely on behalf of the general public. When a
person brings an action solely on behalf of the general public, nothing about such an action shall
act to preclude or bar the person from bringing a subsequent action based upon the same facts
but seeking relief on their own behalf.
E.Nothing in this chapter shall prohibit a person from bringing a civil action in small claims court to
enforce this chapter, so long as the amount in demand and the type of relief sought are within the
jurisdiction of that court.
F.No person may bring an action pursuant to this section unless that person has first made a good
faith attempt to resolve the situation informally with the offending party, including written notice
of this section to the offending party and a written request to cease smoking in the multiunit
residential development at least 30 days before filing suit.
G.No person shall intimidate, harass, or otherwise retaliate against any person who seeks
compliance with this chapter.
6.15.090 Limitations and exceptions.
Nothing in this chapter shall limit or preclude the enforcement of any other applicable laws or limit the
remedies available for violations of this chapter, including the enforcement provisions of Chapter 1.10
of this code. Nothing in this chapter shall create a right of action in any person against the city or its
agents to compel public enforcement of this chapter against private parties.
6.15.100 Rules of construction.
The provisions of this chapter shall be liberally construed to protect the public health to the maximum
extent possible. Notwithstanding (1) any provision of this chapter or of this code, (2) any failure by any
person to restrict smoking under this chapter, or (3) any explicit or implicit provision of this code that
allows smoking in any place, nothing in this code shall be interpreted to limit any person’s legal rights
under other laws with regard to smoking, including rights in nuisance, trespass, property damage, and
personal injury or other legal or equitable principles.
6.15.110 Severability.
If any portion of this chapter, or its application to particular persons or circumstances, is held to be
invalid or unconstitutional by a final decision of a court of competent jurisdiction, the decision will not
affect the validity of the remaining portions of this chapter or the application of this chapter to persons
or circumstances not similarly situated.
EFFECTIVE DATE: This ordinance shall be effective thirty days after its adoption; and the City
Clerk shall certify the adoption of this ordinance and cause the full text of the ordinance or a summary
of the ordinance prepared by the City Attorney to be published at least once in a newspaper of general
circulation in the City of Carlsbad within fifteen days after its adoption.
INTRODUCED AND FIRST READ at a Regular Meeting of the Carlsbad City Council on the 30th
day of !!!.!Y, 2024, and thereafter
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of
Carlsbad on the 20th day of August, 2024, by the following vote, to wit:
AYES:
NAYS:
ABSTAIN:
ABSENT:
BLACKBURN, BHAT-PATEL, ACOSTA, LUNA.
BURKHOLDER.
NONE.
NONE.
APPROVED AS TO FORM AND LEGALITY:
KEITH BLACKBURN, Mayor
SHERRY FREISINGER, City Clerk
(SEAL)