§ 28-2. Definitions.

The following words and phrases, whenever used in this chapter, shall be construed as defined in this section:

"Bar" means an area which is devoted to the serving of alcoholic beverages for consumption by patrons on the premises and in which the serving of food is only incidental to the consumption of such beverages.

"Business" means any sole proprietorship, joint venture, corporation or other business entity formed for profit-making purposes, including retail establishments where goods or services are sold, as well as professional corporations and other entities where legal, medical, dental, engineering, architectural or other professional services are delivered.

"Child care facility" means any family day care regulated by Sections 1597.30 through 1597.621 of the California Health and Safety Code (or successor sections thereto) and any day care center for children regulated by Section 1596.90 et seq. of the California Health and Safety Code (or any successor section thereto). It does not include foster homes or residential care facilities.

"Common area" means every enclosed area and unenclosed area of a multi-unit residence that residents of more than one unit of that multi-unit residence are entitled to enter or use, including, for example, halls, paths, lobbies, courtyards, elevators, stairs, community rooms, playgrounds, gym facilities, swimming pools, parking garages, parking lots, restrooms, laundry rooms, cooking areas, and eating areas.

"Common interest complex" means a multi-unit residence that is a condominium project, a community apartment project, a stock cooperative, or a planned development as defined by California Civil Code section 4100, or successor sections thereto.

"Dining area" means any area, including streets and sidewalks, which is available to or customarily used by the general public, and which is designed, established, or regularly used for consuming food or drink.

"Electronic smoking device" means an electronic or battery-operated device that delivers vapors for inhalation. This term shall include every variation and type of such devices whether they are manufactured, distributed, marketed or sold as an electronic cigarette, an electronic cigar, and electronic cigarillo, an electronic pipe, an electronic hookah or any other product name or descriptor.

"Employee" means any person who is employed by any employer in consideration for direct or indirect monetary wages or profit, and any person who volunteers his or her services for a nonprofit entity.

"Employer" means any person, partnership, corporation, including a municipal corporation, or nonprofit entity, which employs the services of one or more individual persons.

"Enclosed area" means an area in which outside air cannot circulate freely to all parts of the area, and includes an area that has:

(1)

Any type of overhead cover, whether or not that cover includes vents or other openings, and at least three walls or other vertical constraint to airflow including, but not limited to, vegetation of any height, whether or not those boundaries include vents or other openings; or

(2)

Four walls or other vertical constraints to airflow including, but not limited to, vegetation that exceeds six feet in height, whether or not those constraints include vents or other openings.

"Health department" means the County of Marin Health Department.

"Landlord" means any person who owns real property leased as residential property, any person who lets residential property, or any person who manages such property, except that "landlord" does not include sublessors.

"Minor" means any individual who is less than eighteen years old.

"Multi-unit residence" means, for purposes of this chapter, a premises containing two or more units, including, but not limited to, a common interest complex, except the following specifically excluded types of housing as defined in chapter 16 of this Code:

(1)

A single-family dwelling, including enclosed areas and unenclosed areas on its premises;

(2)

A detached two-family dwelling, including enclosed areas and unenclosed areas on its premises;

(3)

A mobile home park unit, including enclosed and unenclosed areas on its premises.

"Nonprofit entity" means any corporation, unincorporated association or other entity created for charitable, philanthropic, educational, character-building, political, social or other similar purposes, the net proceeds from the operations of which are committed to the promotion of the objectives or purposes of the entity and not to private gain. A public agency is not a "nonprofit entity" for purposes of this chapter.

"No smoking sign" means a sign containing the words "No smoking" or the international "No smoking" symbol (consisting of a pictorial representation of a burning cigarette in a red circle or red heart with a red bar across it).

"Opening" means and shall include any main entrances, exits, operable windows, and ventilation intake systems.

"Person" means any natural person, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee, or any other legal entity.

"Place of employment" means any area under the legal or actual control of an employer that an employee or the general public may have cause to enter in the normal course of operation, regardless of the hours of operation, including, but not limited to, indoor and outdoor work areas, construction sites, vehicles used in employment or for business purposes, taxis, employee lounges and restrooms, conference and banquet rooms, employee cafeterias, warehouses, long-term care facilities, and lobbies and hallways. A private residence is not a place of employment unless it is used as a child care or residential health care facility.

"Premises" means a piece of land and any improvements upon it such as is usually described in a deed, deed of trust or mortgage; including legally separate but contiguous pieces of land that are owned by the same natural person or by legal persons under common control.

"Public event" means an event open to the public, including, but not limited to, sports events, entertainment, speaking performances, ceremonies, pageants, parades, fairs and farmers' markets.

"Public park" means any parkland open to the public that is owned by the town and is designated "parks and recreation" on the zoning map of the town.

"Public place" means any place, publicly or privately owned, which is open to the general public regardless of any fee or age requirement, including, but not limited to: bars, restaurants, clubs, stores, stadiums, parks, playgrounds, taxis, buses, bus shelters, public transportation facilities, hotels and motels, bed and breakfast facilities, fairs, farmers' markets, theaters, sidewalks and streets. "Public place" does not mean within private vehicles in or on public places.

"Reasonable distance" means a distance of at least twenty-five feet in any direction from an area in which smoking is prohibited.

"Recreational area" means any area that is publicly or privately owned 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, open spaces, picnic areas, playgrounds, sports fields, tennis courts, walking paths, gardens, hiking trails, bike paths, riding trails, swimming pools, marinas, and amusement parks.

"Restaurant" means any coffee shop, cafeteria, sandwich stand, private and public school cafeteria, including any associated outdoor eating area, and any other eating establishment which gives or offers for sale food to the public, guests or employees, as well as kitchens in which food is prepared on the premises for serving elsewhere, including catering facilities.

"Retail tobacco store" means a retail store utilized primarily for the sale of tobacco products, tobacco paraphernalia, or smoking products, and in which the sale of other products is merely incidental.

"Self-service merchandising" means open display of tobacco products or tobacco paraphernalia in a manner that is accessible to the general public without the assistance of the retailer or employee of the retailer. This includes point-of-sale tobacco promotional products (such as tobacco industry tee shirts, caps, key chains, give-aways), to which the public has access without the assistance of an employee. A vending machine is a form of self-service displays.

"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 wait for or receive a service or make a transaction, whether or not such service or transaction involves the exchange of money. The term "service area" includes but is not limited to information kiosks, automatic teller machines (ATMs), ticket lines, bus stops or shelters, transit shelters, ferry terminals, mobile vendor lines, or taxi cab stands.

"Smoking" means engaging in an act that produces gas, particles, vapor or smoke by means of combustion, electrical ignition or vaporization, where the apparent or usual purpose of said act is the human inhalation of the byproducts. "Smoking" does not include acts where (a) the combustion or vaporization material contains no tobacco or nicotine and (b) the purpose is solely olfactory, such as producing smoke from incense. "Smoking" does include the use of a lighted pipe, lighted cigar or lighted cigarette, lighted hookah, electronic smoking device or other device of any kind containing tobacco, tobacco product, tobacco-like product, marijuana, spices, or any other plant or herbal materials to the extent that local regulation of such lighted device, product or material is allowed by law.

"Tobacco paraphernalia" means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the smoking, preparation, storing, or consumption of tobacco, marijuana, or other similar products.

"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.

(3)

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.

"Tobacco retailer" means any person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco, tobacco products, tobacco paraphernalia, or smoking products within the corporate limits of the Town of Tiburon. "Tobacco retailing" shall mean the doing of any of the above. This definition is without regard to the quantity of tobacco, tobacco products, or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange.

"Tobacco vending machine" means any machine, appliance, or other mechanical device operated by currency, token, debit card, credit card, or any other form of payment that is designed or used for vending purposes, including, but not limited to, machines or devices that use remote control locking mechanisms.

"Town" means the Town of Tiburon.

"Town manager" means the Town Manager of the Town of Tiburon, or his or her designee.

"Town open space" means any open space land or easement owned by the town and designated as "open space" on the zoning map of the town.

"Unenclosed area" means any area that is not an 'enclosed area', as that term is defined in this section.

"Unit" means a personal dwelling space, even where lacking cooking facilities or private plumbing facilities, and includes any associated exclusive-use enclosed area or unenclosed area, such as, for example, a private balcony, porch, deck, or patio. "Unit" includes, but is not limited to, an apartment; an attached two-family dwelling; 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 (SRO) facility; a room in a homeless shelter; a mobile home; a camper vehicle or tent; a single-family dwelling; and an accessory dwelling unit or guest house appurtenant to a single-family dwelling.

"Vendor-assisted" means only a store employee has access to the tobacco product and assists the customer by supplying the product. The customer does not take possession of the product until it is purchased.

(Ord. No. 531 N.S., § 3, 7-20-2011; Ord. No. 553 N.S., § 2.I(A), (B), 9-17-2014; Ord. No. 571 N.S. , § 2(A)—(H), 5-17-2017; Ord. No. 579 N.S. , § 2(B)—(M), 7-18-2018)