Ordinance No. 14-2121 Amending sections 10.90.010 and 10.90.020 of Chapter 10.90 and adding section 10.90.045 of Chapter 10.90 and Amending section 10.56.020 of Chapter 10.56 of Title 10 of the Cupertino Municipal Code to regulate outdoor smoking ORDINANCE NO. 14-2121
AN ORDINANCE OF THIS CITY OF CUPERTINO
AMENDING SECTIONS 10.90.010 AND 10.90.020 OF CHAPTER 10.90 AND
ADDING SECTION 10.90.045 OF CHAPTER 10.90 AND AMENDING SECTION
10.56.020 OF CHAPTER 10.56 OF TITLE 10 OF THE CUPERTINO MUNICIPAL CODE
TO REGULATE OUTDOOR SMOKING
WHEREAS, tobacco use causes death and disease and continues to be an urgent
health challenge; and
WHEREAS, exposure to secondhand smoke anywhere has negative health
impacts, and exposure to second hand smoke- occurs at significant levels outdoors;
WHEREAS, in 2006, the California Air Resources Board classified secondhand
smoke as a "Toxic Air Contaminant";
WHEREAS, The United States Surgeon General reports that there is no safe level
of exposure to secondhand smoke; and
WHEREAS, this Ordinance was found to be categorically exempt from
environmental review per the provisions of Section 15061(b)(3) of the California
Environmental Quality Act of 1970, as amended; .
WHEREAS, it is the intent of the City Council, in enacting this ordinance, to
provide for the public health, safety, and welfare, by discouraging the inherently
dangerous behavior of smoking around non-tobacco users, by protecting the public
from secondhand smoke where they eat; and by affirming and promoting a healthy
environment in and around dining areas.
NOW, THEREFORE, THE CITY COUI�TCIL OF THE CITY OF CUPERTINO DOES
HEREBY ORDAIN AS FOLLOWS:
SECTION 1. The Title of Chapter 10.90 of Title 10 of the Cupertino Municipal Code is
hereby amended to read as follows:
CHAPTER 10.90: REGULATION OF SMOKING
SECTION 2. Section 10.90.010 of Chapter 10.90 of Title 10 of the Cupertino Municipal
Code is hereby amended to read as follows:
Section 10.90.010 Definitions
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The following words and phrases, whenever used in this chapter, shall have the
meanings defined in this chapter unless the context clearly requires otherwise:
A. "Outdoor Dining Area" means any privately owned or publicly owned area,
street, or sidewalk, which is available or customarily used by the general
public and which is designed, established, or regularly used for consuming
food or drink.
B. Reasonable distance" means a distance of 25 feet in any direction from an area in
which smoking is prohibited.
C. "Recreational Area" means any outdoor area, including streets and sidewalks
adjacent to Recreational areas, owned or operated by the City of Cupertino and
open to the general public for recreational purposes,'regardless of any fee or.age
requirement. The term "Recreational Area" includes, but is not limited to parks,
picnic areas, playgrounds, sports fields, golf courses, walking paths, gardens,
hiking trails, bike paths, horseback riding trails, swimming pools, roller-skating
rinks, skateboard parks, and parking lot or other area designated or primarily used
for parking vehicles of persons accessing a Recreational Area.
D. "Smoke" means the gases, particles, or vapors released into the air as a result of
combustion, or vaporization, when the apparent or usual purpose of the
combustion, or vaporization is human inhalation of the byproducts, except when
the combusting or vaporizing material contains no tobacco or nicotine and the
purpose of inhalation is solely olfactory, such as, for example, smoke from incense.
The term "Smoke" includes, but is not limited to, tobacco smoke, and marijuana
smoke.
E. "Smoking" means engaging in an act that generates Smoke, such as for example:
possessing a lighted pipe, lighted hookah pipe, a lighted cigar, or a lighted cigarette
of any kind; or; or lighting or igniting of a pipe, cigar, hookah pipe,' or cigarette of
any kind.
SECTION 3. Section 10.90.020 of Chapter 10.90 of Title 10 of the Cupertino Municipal
Code is hereby amended to read as follows:
Section 10.90.020 Smoking Prohibited.
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A. Smoking is prohibited:
1. In Recreational Areas;
2. In Outdoor Dining Areas; and
3. At entrances, exits, operable windows, or air intake openings of any building
area which is available or customarily used by the general public and which
is designed, established, or regularly used for selling or consuming food or
drink.
B. Reasonable Smoking Distance Required.
1. Smoking in all unenclosed areas is prohibited within a reasonable distance from
any unenclosed areas in which smoking 'is prohibited under Section
10.90.020.A, except while actively passing on the way to another destination
and provided smoke does not enter any area in which smoking is prohibited;
2. The smoking prohibitions in Section 10.90.020.B.1. shall not apply to
unenclosed areas of private residential properties.
C. Nothing in this chapter shall be construed to prohibit. smoking in any area in
which such , smoking is already prohibited by state or federal law unless the
applicable state or federal law does not preempt additional local regulation.
D. No Person shall dispose of used smoking; waste within the boundaries of an area
in which smoking is prohibited by this chapter.
E. Each instance of smoking in violation of this chapter shall constitute a separate
violation. For violations other than smoking, each day of a continuing violation of
this chapter shall constitute a separate violation.
SECTION 4. Chapter 10.90 of Title 10 of the Cupertino Municipal Code is hereby
amended to add Section 10.90.045 to read as follows:
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Section 10.90.045 Posting of Signs.
Where smoking is prohibited by this chapter, a clear conspicuous sign shall be posted
at a conspicuous point within the area. The sign shall have letters of no less than one
inch in height and shall include, either 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) or "No Smoking" in words. Notwithstanding this provision,
the presence or absence of signs shall not be a defense to a charge of smoking in
violation of any other provision of this chapter.
SECTION 5. Section 10.90.050 of Chapter 10.90 of Title 10 of the Cupertino Municipal
Code is hereby amended to read as follows:
10.90.050 Violation-Penalty.
A. The remedies provided by this article are cumulative and in addition to any other
remedies available at law or in equity. Except as otherwise provided,
enforcement of this chapter is at the sole discretion of the City of Cupertino.
Nothing in this chapter shall create a right of action in any person against the
City of Cupertino or its agents to compel public enforcement of this article
against any party.
B. Any person who-violates any of the provisions of this chapter shall be guilty of an
infraction and upon conviction thereof shall be punished as provided in Chapter
1.12 or, in the alternative, subject to enforcement action pursuant to Chapter 1.10:
Administrative Citations, Fines, and Penalties.
SECTION 6. The Title of Chapter 10.56 of Title 10 of the Cupertino Municipal Code is
hereby amended to read as follows:
CHAPTER 10.56 TRESPASSING UPON PARKING LOTS, SHOPPING
CENTER PROPERTY AND OTHER PROPERTY OPEN TO THE PUBLIC
SECTION 7. Section 10.56.020 of Chapter 10.56 of Title 10 of the Cupertino Municipal
Code is hereby amended to read as follows:
10.56.020 Unlawful.
A. It is unlawful for any person, other than a public officer or employee acting within
the scope of his or her employment, to enter or remain on any shopping center
property, or any other private property open to the public within the City, after the
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owner, lessee or other person in charge of the property has, for good cause, demanded
that such person remove themselves from the property.
B. Good cause for removing someone front the property is limited to the following
instances:
1. Where the person participates in, or engages in conduct which urges a riot, acts
of force or violence, -or the burning or destroying of property within the
meaning of Penal Code Sections 404.an.d 404.6;
2. Where the person participates in art unlawful assembly as deemed in
Penal Code Section 407;
3. Where the person engages in conduct which constitutes a disturbance of the
peace as deemed in Penal Code Section 415;
4. Where the person intentionally interferes with the lawful conduct of business
on the premises by obstructing or intimidating those attempting to carry on
business, or by obstructing or intimidating their customers within the
meaning of Penal Code Section 602.1;
5. Where the person engages in disorderly conduct within the meaning of Penal
Code Section 647, including loitering, accosting other persons for the purpose of
begging, and being under the influence of any drug or liquor;
6. Where the person willfully and malliciously obstructs the free flow of
pedestrian movement within the meaning of Penal Code Section 647c;
7. Where the person causes a noise disturbance in violation of Chapter 10.48 of
this Code; or;
8. Where the person smokes in violation. of federal or state law, any provision of
this Code or in violation of smoking; rules established by any shopping center
within the City.
SECTION 8. This Ordinance shall become effective January 1, 2015.
SECTION 9. The City Clerk shall certify the adoption of this Ordinance and shall give
notice of its adoption as required by law. Pursuant to Government Code Section 36933,
a summary of this Ordinance may be published and posted in lieu of publication and
posting of the entire text.
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INTRODUCED at a regular meeting of the City Council of the City of Cupertino
the 19th day of August 2014 and ADOPTED at a regular meeting of the City Council of
the City of Cupertino the 2nd day of September 2014, by the following vote:
PASSED:
Vote: Members of the City Council
Ayes: Wong, Sinks, Chang, Mahoney, Santoro
Noes: None
Absent: None
Abstain: None
ATTEST: APPROVED:
Grace Schmidt, City Clerk Gilbert Wong, Mayor, City Cupertino
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STATE OF CALIFORNIA )
COUNTY OF SANTA CLARA )
CITY OF CUPERTINO )�
I, GRACE SCHMIDT, City Clerk and ex-officio Clerk of the City
Council of the City of Cupertino, California, do hereby certify the attached
to be a true and correct copy of Ordinance No. 14-2121, which was
enacted on September 2, 2014, and that it has been published or posted
pursuant to law (G.C. 40806).
IN WITNESS WHEREOF, I have hereunto set my hand and seal
this 3rd day of September, 2014.
J�
GRACE SCHMIDT, City Clerk and Ex:-officio Clerk
of the City Council of the City of Cupertino, California
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Ordinance Certificate
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