HomeMy WebLinkAboutTC Ord 2020-09-02 OItllINANC� NO �89 N.S.
�� AN 012llINANC� OF THI? TOWN COUNCIL OI' THE TOWN OF TIBURON
� AM�NDING PROVISIONS OF TITL� VI, CHAPT�R 28 OF THE TII3URON
MUNICIPAL CODE (SMOKING AND TOl3ACC0 R�GULATIONS)
1"he `I�own Council of the Town of Tiburon does ordain as follows:
Sectio�l 1. Fi»dings and ainendments to Title VI, Cl�apter 28.
28-1 - Findings and puipose.
(a) The town council finds that:
(1) Nlimerous scientific studies have found th�t tobacco s�noke is a majo�• contributor to
indoor air pollution;
(2) Reliable scientiiic studies, il�cluding studies by the Sui-beon General of the United
States and studies comnlissioned and assessecl by the U.S. �nvironmental Protection
Agency, have shown tllat breatlling sidesti�eam or seco»dhand s�noke is a significant
� health hazard to nonsn�o]<ers; particulai-ly to children a»d teens. eldei•ly people,
individuals with cal-diovasculai- disease, and individL�als with impaired respiratory
function, including asthmatics and those with obstructive airway disease;
(3) Health hazards induced by ex}�ostu�e to environme�ltal tobacco smolce il7clude lung and
other forms of cancer, respiratoly infection. decreased respiratoiy function, decreased
exercise tolerance, broncho-constriction and broncho-spasin, and that the most common
cause of premature deatl� fi-om environmei�tal tobacco smoke is heart disease;
(4) Reliable scientific studies asscssed by the U.S. I�nvironmental Protection Agency have
fotuld that sidestrealr� and sccondhand tobacco smol:e causes the deatl� of at least fifty-
thi-ee thousand �Ionsmolcei-s a�lnually ar�d is a (eading cause of pi•cn�ature deatl� and
disability among nonsmo]<ers;
(5) Nonsmokers witl� allergies_ respiratory diseases and those ��ho suffer othel• ill efFects
of breathinb sidestream or secondhand tobacco smol:e may experience a loss of job
productivity oi-�i�ay be forced to tal<e pel�iodic sicl: leave because of ad��erse reactioils to
sanle:
(6) Persons, particularly employees. l�avc a ri�ht to a smol<e-free environment if they
desire;
(7) Tobaceo stnol<ing is a leadin� cause c�f tii-es_ and ci<rai-ette and eigal- bui-ns and as11
stains on n�erchaildise and fistuz�es c�iuse economic losses to businesses:
(8) Substantial seientific evidence e�ists that the direct use of tobacco products causes
cancer, heart disease_ and various other medical diseases. The Sui-�eon General of the
U.S. has foluld tl�at tobacco-caused diseases are tlle leading cause of pren�ature.
preventable deatl� and disability in the L1.S.:
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To�vn Council Ordinance No. 589 N.S. Effective Date 10/2/2020
(9) The Natio»al Centers for Disease Co»trol ha�,e found that at least i'our hundred thirty-
four thousand Americans die each year fi-om tobacco-caused diseases. "The Surgeon
Ge�leral of the IJ.S. and U.S. Departinent of Nealth and 1�uman Services l�ave found
tl�at a n�ajority of those Americans who clie ot�tobacco-caused dise�s�s becan�e addicted
to nicoti�le in tobacco products as adolescents be(ore the age of le��al consent:.
(10) The National Institute on Drug Abuse I�as co��cluded tl��t the nicotine in tobacco
products is a powerful addietive drug and identities nicoti»e addiction as the nlost
widespread example of drug dependeilce in the U.S..
(l l) The Surgeon General of the U.S. has found that nicotine in tobacco pi-oducts is as
addictive as cocaine and hei-oin:
(12) 87.9 percent of nonsmokeis sl�o�ved det�ctablc levels of cotinine (a metabolite of
nicotine) in tlleir blood, the i��ost likely sourcc oI���11ich is secoi�dhand smoke exposure;
(13) There is no Constitutional 1•ight to smolte:
(14) Secondhand sir�oke can seep under door��vs a�1d thi-ou��h �a�all ci-acics and through
ventilation systenls;
(IS) State law prohibits snloking in virtually al] indoor places of employment reflecting
the state policy to protect against the dangers of cxpostn-e to secondhand smoke;
(16) A local oi•dinance that authoi-izes i-esidcntial rental agreements to iilclude a
prohibition on snlol<ing of tobacco products ���ithin the co�ll�non ai�eas of n�ulti-unit
residences is not prohibited by state ]a��v:
(17) California law declares that anything wl�ich is injurious to health ��r obstructs the fi�ee
use of property, so as to interfere with the comtortable enjoyment of life or pi-operty, is
a nuisance.
(18)Califoi-nia State Department of Fducation stu-veved i�'l�u�in Cotu�ty Yout�hs in 2016 and
20l 8 and found an 11-28 pei•cent increase in �I I age groups ���ith the larbest amongst
1 1`�' graders.
(19)Vaping products contai» hi�hly addictive nicotine as �a,ell as �thcr harmful stiibstances
and cartrid�es contain as mucl� nicotine as a parl: oi�cigarettes per carti-id�e.
(20) Flavored vaping products are designed. 17a��ored and marl<eted to attract adolescenCs
and fi�equently these young smol<es move to smol<in�� ci��arett�s.
(21)I�l�e greatest iinpact on reducii�g adolesce��t �apii�;� ���otild be tc� pi-ollibit the sale of
products witl�in the commw�ity thei-eb�� reci�lcin�� ace�ss to a da�l�erous addictive
nicotille product.
� (b) Accordingly, the town council f7nds and declai�es that the purpos�s of tliis chapter are:
(l) To protect public healtl�, safety and gelleral ��elfare by pi-ohibitin�� tobacco smokin� in
certain public places and in places of emplo��ment: and
(2) To guarantee the right of noi�si��okers to bi-eathe ai�� ti-ee of to�ins li-on� co»�bustion of
tobacco, tobacco product, tobacco-like procluct. spices or an�� other plant or herbal
��� materials to the eatent that local regtilation ot sources of combustion of those ���aterials
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To�-��i� C�ouncil Ordinance No. 589 N.S. Effecti��e Date 10/2/2020
is allowed by law and to recognize that the need to breathe air free of tl�e toxins
produced by s�1�ol<ing has priority over tl�e desii-e to slnol:e.
(c) The town council filrtl�er fii�ds it is withi» its basic police power to implement and
enfoi-ce the provisiolis of this cl�apter-.
28-2 - Definitions.
Tl�e following words and phrases, wheilever uscd in this cl�apt�r. shall be construed as
cle�»ed in this section:
'B�r" means an area which is devoted to the sei-ving of alcol�olic beverages fol� consumption
by patrons on the premises and in wliich the sei-ving of food is only incidental to tlle
consumption of sucl� bevei-ages.
"Busincss" n�eans any sole proprietorship,joint vcntui-c. co�poration or� othei-business entity
form�d for profit-n7aking purposes, including retail establishments where goods or sei•vices ai•e
sold. as well as professional corporations and other entities ��he1-c le��al, n�edical, dental,
engineering, architecttu•al or other professional services are delivered.
"Child care facility" nleans any fan�ily day care regulated by Sectio»s l�97.30 througl�
1597.621 of the California Health and Safety Code (or sticcessol- sections thereto) a»d any day
care renter for children regulated by Section 1596.90 et seq. of t11c Ca�ifornia Nealth and Safety
Code (oi-any successor section thereto). It does not include fostei- 1lomes oi- i-esidential care
facilitics.
`�Characteriziilg Flavor" means a distinguisl�able taste or �1-oma or both_ otl�ei-t11an the taste
or aroma of tobacco, imparted by a Tobacco Prodilct oi- alry bypi-oduct pl-oduced by t11e Tobaeco
Pi•ocluct. Characterizing Flavors include but are not limited to. tastes or aromas i•elated to any
fi-uit. chocolate, vanilla, honey, candy cocoa, dessert, aleoholic b�vei-age_ menthol, �nint,
wintergreen. l�el�b or spice. A tobacco Product shall not be determined to have a Characterizing
Flavor solely because of the use of additives or flavorings or the provision oT in�redient
infor»>ation. Rather it is the presence of a distinguishable taste or aroi��a. or both, as described in
the first sentence of this definition, that constitutes a Charactel-izing 1=lavoi�.
��Col�stituent"Any ingredient, substance, chemicaL or compounci. oth�.r tllan tobacco. water,
ol�reronstituted tobacco sl�eet that is added by tl�e �Z�anufacttn�er to a tobacco product duri�7g tl�e
procc�sing_ manufacture, or pacl<iug of the tobacco product
"Co�nmon area" means evety enclosed area and unenclosed area of a mtilti-unit residence
that r�-sidents of more than one unit of that mlalii-unit l�esidence are entitled to enter or use.
inclu��ing. for exanlple, I�alls, paths. lobbics, courtyards. elc���itors. staii�s. con�munity roo�l�s,
play��rounds, gym tacilities, swiinining pools, parl<in�� ��ra��es. parl:ing Ic�ts. restrooms, latmdry
room;. cookin�� areas; ai�cl eating areas.
"Comn�on i»terest con�plex" means a multi-Lu�it i-esidenre that is a condo�l�iniln�l pi-oject. a
comml�nity apartn�ent pi-oject, a stocl< coopei-ative. ot� a planned development as def�i»ed b�
Cali��n-»ia Civil Code section 4100. or successor sections ihereto.
"Dining area" meal�s airy area, including streets anc� sicic���all<s. ���l�ich is available to or
� custoi�larily used by the ge»e�-al public. and whicll is desi��rled. established. o��reglilarlv used fol•
� consiu»i�1g foocl or di-ink. �
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I�o�-��n Council Ordinance No. SS9 N.S. Effective Date I Oi�/2020
"Electronic s»�olcing device" means an electronic o1�battery-opei-atecl device tl�at delivers
vapors foi� inl�alation. "I,his ter�n shall include evei-y vai-iation and type of sucll devices wl�etl�ei-
� they are manufactured, distributed, marketed or sold �s an electronic cigarette. an electronic
� ci��ar. and electronic cigarillo, an electronic pipe, an electronic hookah or an�� other product nai�ie
or clescriptor. �
"�mployee" means any person who is employed by any cmployer in consideration for direct
or indirect monetary ���ages or profit, and any person who volunte�rs his or her services for a
11onl�rolit entity.
"E���ployer" means any person,�artnership, corporation. including a»�Lu�icipal coi-poi-atiol�,
or nonprof7t entit�_ ��hich employs the services of one or n�ore individual persons.
"Enclosed area" means an area in which outside air cannot ci��culat� Ii�eely to all p�rts of the
area. and i�lcludes an ai•ea that has: �
(l) Any type oi' overhead cover, whether or not tl�at covcr includes vents or othei• �penin�s,
and at ]east tlii-ee walls or other vertical constraint to airt7o�� i�lcluding. btat not limited to,
vcgetation of any height, whether o,r not those boundaries include ���ents or other ope��ings; or-
(2) Four walls or other vei-tical constraints to aii•��7ow i»cludiug. but not limited to, v�betatio�l
that exceeds sia feet in height, whether ol- not those constl-aints include vents or otllei•
O]��11111�.?S.
"Flavored Tobacco" n�eans any tobacco product th�t contains a constituent that imparts a
characterizit�g fla��oi-
"Health department" means the County of Marin Health Departme��t.
"L�ndlord" means airy person wl7o owns real property leased as residential property_ any
person ��-ho lets residential property, or any persoi� who managcs such propert��, except that
"lai�dlord" does not include stlblessors.
"Minor" means a�ry individual who is less than eighteen vears old.
"Multi-unit residence" means, for purposes of tl�is chapter. a pre���ises containin� t�a-o or
more tmits. includinQ. but not limited to, a con�mon interest complex. e�cept the follo��ing
specitically e�cluded types of housing as defined in chapter l 6 of this Codc:
(1) A sin��le-family dwellinb, includin�� enclosed ar�as and un�»closed area� on its
premises:
(2) A delacl�ed t�uo-family d�n%ellii�g, including enclosed ar�as anci uncnclosed arcas on its
pr-e1»ises:
(3) A mobile home pai-1< Lu1it, includin� enclosed alld unenclosed al-eas on its pren�ises.
"Nonpro�til entit_v" means any colporation. Linincorporated association or othe:r entit� created
for cl�aritable. philanthropic, educational, chai-actei�-btiildi�lg. political. social oi� other similai-
purposes. the net ��roceeds fi•om the operations of���hicl� are committed to the p�-omotion ��f the
objectives or purposes of the entity and not to private gain. A public agencv is not a "nonprofit
cntity" for pi�lposcs of tllis cl�apter.
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To�vn Council Ordinance No. SS9 N.S. Effective Date 10/2/20?0
"No smol<ing sign" �neans a si�n co�Itaininb the words "No sli�ol<ing" or the international
"No smoki�l��" symbol (consistii�g of a pictorial representation of a bw-ning ci��arette in a red
� cii-cle or red heart witll a red bai- aci•oss it).
"Openin�" meai�s ai�d sl�all include any main entrances, eaits, operable �%indows, and
ventilation intake systems.
"Person" means any natural person, partnei-sl�ip, coopei-ative associ�ition. private
co�poi-ation, personal repi-esentative, rece�ver, trustee, assi��nee. oi- any other le��al entitv.
"Place of employment" inea�ls any area tmder the legal or actual co»trol of an employcr that
an employee or the aeneral public may have cause to enter in tl�e normal course of operation,
regai-dless of th� ]lours of opei•ation, including, but not limited to, indoor and outdooi���01-1: areas,
consti-uction sites. vehicles used in enlployment or for business pw�pos�s_ taxis, en�ployee
low�ges and restrooms. conference and banquet roorns, employee cafeteri�s. �N�ar�houses. long-
term care facilities. and lobbies and hallways. A private residence is not a place of cmploymc,nt
unless it is used as a ehild care or residential health clre facility.
"Pl-e»�ises" i7�eans a p�ece of land and any in�provements upon it suc11 as is usually described
in a deed, deed of trust or mortgage; including legally separate bLlt contiguous pieces of land tl�at
are o�>»ed by tlie same natural person or by legal pei-sons Lmder co�nn�on control.
"Public event" means an event open to the public, including, but not limited to, sporls
events_ entertainment, speaking performances, ceremonies, pageants, parades, fairs and fart��ers' �
marl:ets.
"Public park" means any parkland open to the public tl�at is owned by the to�vn and is
designated "pari:s and recreation" on the zoning nlap of the town.
"Public plac.e" �1�eans any place, publicly or privately owned, which is open to tlie genei-al
public i�c��al-dless of a�iy fee or age requirement, including, but»ot limited to: bars. r-est�urants,
clubs_ stores. stadiuins, parks, playgrounds, taais, bLlses, bus shelters, public transportation
facilities_ l�otels a»d motels. bed and breakfast facilities_ fairs. farmers' �1�arkets. the�ters.
sidewall:s a»d su-eets. "Public place" does not mea�1 witlli�l pi-ivate vehicles in or on public
placcs.
"Reasonable distance" n�eans a distance of at least t�venty-iive feet in an� dir�ction from an
area in which smol:ing is prol�ibited.
'Recreational lrea" means any area t�l�at is publicly or privatelv o��ned and open to the
��eneral public for reci�eatiozial puiposes, rebardless of any fee or a��t requirement. The term
"rcci�eational ar��" inclucles, but is not lilnited to, parks; open spaces. ��icnic areas. pl�iy<,�rounds,
spoi-ts fields. tennis courts, wallcing paths, gardens, hikin� tl-ails_ bil<e patl�s, riding ti-ails,
5��-im�l�in�� pool�, marinas, and alnusen�eilt parks.
"Restatiran�" means any coffee shop, caieteria, sandwicl� sta»d. private �ind public scl�ool
cateteria_ inclucling any associated outdoor eating area, and any other eatinb establisl�n�ent which
��i��es or offers 1or sale food to the public, guests or employees. as well as kitchens in which food
is pT-ep�red on the pre»�ises for serving elsewhere, including cateri�lg facilities.
"Retail tobi�cco store" il�eans a retail stoi-e utilized pl-imal-ily for tl�� sale of tob�cco pi-oducts,
tobacco paraph��rnalia. or sn�olcing products, and in which the s��le of other products is i��erely
� incidcntal.
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��o��n Council Ordinance No. 589 N.S. f�ffective Date 10/2/?020
"Sell=service merchandisi»g" means open display of�tobacco products or tobacco
� parapl�ernalia in a mannei- that is accessible to the genei-al public without the assistance of�ille
rctailer or e�7�ployee of the retailer. Tl�is includes poi»t-of-sale tobacco promotional products
� (slzch as robacco industry tee shirts; caps. 1<ey chains, give-aways). to ���hich the public hZs access
���ithout the assistance of an employee. A vending machine is a form of self�-service displays.
"Ser��ice area" �neans any publicly or privately owned area, including streets and side�vall<s.
that is designecl to be used or is re�ularly used by ar1e or more persons to ����it for or recei��e a �
sei-vice oi-make a ti�a»saction. whether oi-ilot such service or transactio» �nvolves the e�chan��e
of monev. The tei-m "service ai�ea" �ncludes but is not li�r�ited to i»formation I:iosl:s. auto»�atic
teller machines (ATMs), ticl:et lines, bus stops or sl�elters, transit sl�elters. ferry terminals.
mobile vendor lines. or taxi cab stands.
"Smokin�" means en�a��ing in an act tl�at produces gas, particles. vapor or slnol:e by means
oi combustion. electrical ignition or vaporization, where the apparent or usual piu�pose of said act
is the l�t�n�an ir�halation of the byproducts. "Smoking" does not include acts ��%hel�e (a) tl�e
combustion ol�vaporization material contains no tobacco oi•nicoti�le and (b) the purpose is solely
olfactol�y, such as pi-oduciil� si�loke li•oln incense. "Srnoking" does include the use of a lighted
pipe. li��hted cigar oi-liglitecl cigarette, libhted hoolcah, eleeh-onie smoking device or other device
of any kind containing tobacco, tobacco product, tobacco-like prodiict. mal-ij��ana_ spices. oi� any
other plant or hei-bal materials to the extent that local regulatioi� o�'such lighted device, pr-oduct
or material is allowed by la��.
"'I�obacco pai-apl�crnalia" �1leans cigarette papei�s or wrappei-s, pipes, holc�ers of s�nokillg
n�atei-ials of all types, cigarette rollinb machilles, and any other itenl designed for the s�nol<in��.
preparation_ stoi-ing. oi- consumption of tobaceo, marijLlana, or othei- similar products.
""I�obacco product" mea»s:
(1) �ny product eontainin�_ made, or derived 1�ron1 tobacco oi- nicotine tllat is intended for
human conswnption, �vllether sii�oked, heated, chewed_ absorbed. dissolved, inhaled.
snorted_ sniffed. or in��ested by any other means, incltzding, but not limited to ci«ai-ettes.
ci��ars. little cigars, che����ing tobacco, pipe tobacco. snuff; and
(2) �n�� electronic smo]<in� device.
(3) Not�vithstanding am provision of subsections (1) and (2) to the contrary. "tobacco
product" includes any component, part, or aceessory of a tobacco p��oduct_ ���heiher or not
sold separately. "I�obacco product" does not include a��y producl that has be�n approved bv
tl�e United States Food anci Dru� �ldministration for sale as a tobacco cessatio» product oc
Fol- othcr therapeutic ptn-poses where sucl� product is mar-lceted and solci solel�� for such an
approved purpose.
"Tobacco l�etailei-" nleans any person wl�o sells, offers for sale. oi� does oi- o�I7�ers to excl�an<�e
fot- any foi-m of considei-ation, tobaceo. tobacco producis, tobacco parapl�ern�lia, or smol:i»g
products ��ithin the corporaie li�nits oFtl�e Town of Tiburon. ""l,obacco retailin��" shall mean the
doing of any of tl�e above. �I�his definition is without regai-d to the c�ua�ltit� ot�tobacco_ tobacco
products. or tobacco paraphernalia sold, offered for sale. eacl�a�lged. oi- ol�fered fo�� e�c}�a����e.
""Cobacco vending machii�e" meai�s any machine. appliance. or other i��cchanical de�-ice
� operated by c�u�renc��. tol<en. debit card_ credit card, or any other form of payment that �s
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To�vn Council Ordin�nce No. >S9 N.S. Effective Datc 10/2/2020
designed or used for ve»ding purposes, includin�. but»ot lin�ited to, macl�ines or deviccs that
� � use 1-emote control lockin� mecllanisms. �
"To���n" means the To��n of Tibllron.
"To����1 managei-" means the Tow�1 Manaber of the Town of Tiburoil. or his or llei- designee.
"To���n open space" means any open space land or easement ownecl by 11�e to���n and
desi<;�nated as "open space" on the roninb n7ap of the town.
"U��enclosed area" means any area th�t is not an 'enclosed ai-ea'. as t(�at term is defined in
tl�is section.
"Unit" means a personal dwelli�lg space, even whei-e lacl<ing cooking facilities or private
plu»Ibin� facilities. and includes any associated exclusive-use enclosed area or unenclosed area.
such as. for eaample_ a pri�-ate balcoily; porch, decic, or patio. "Unit" includes. but is not limited
to_ an apartme»t: an attached two-family dwellin�, a condominium; a townhouse; a room in a
loi���-tei�m healih care �1�acilit}%, assisted livinb facility, or hospital; a hotel or motc] room; a room
i» a sin��le-room occli��anc�� (SRO) facility; a rooln in a homeless sheltel; a mobile hoi��e: a
ca���pef-vehicle or tent; a si�lgle-f�mily dwelling; and an accessoiy dwel]izlg ul�it or �ucst house
�pptu�ten�.ii�t to a si»�le-family dwelling.
"Vendor-assist�d" �r�eal�s oi�ly a stoi•e en�ployee has access to the tobacco product and assists
the custo���er by su}�plying the product. The customer does no1 t�ake possession of the product
ui�til it is purchased.
28-3 - Slnoki�lg and tobacco pl�oduct use prohibited in town-owned facilities and towi� vehicles.
Smol<in�� and us� of t<�bacco products is prohibited in all town-owued. town-leased. and
town-operated vehicles, inclucling jitneys and buses and oth�r means of public transit under the
authority of the town, and in all enclosed i•esideiltial and non-residential 1�acilities. bilildi»gs. ol-
structur�es owned. leased. ��ccupied and/or controlled by tl�e town.
28-4 - Prohibition of smokin� and tobacco product use i�1 enclosed areas.
(a) Smoking ai�d the tue of tobacco products are prohibited in ihe enclosed areas of the
follo��vin�� places �villli�l the tow»:
(1) Ptiblic places: a��d
(2) Multi-unit resid�nccs and coinnion areas; a�id
(3) Dinin�T areas: anc�
(4) Sel�vic� areas.
(b) S»�ol:i�i�� and the us� of tobacco pi-oducts are prohibited in all other c:nclosed ai�eas eYcept
as pro��icjed belo��:
(l) I»side pri��atc v��hicles when no minors are prescnt:.
(2) Inside pl-ivate single-family dwellings, eacept w11en used as a child cal-e iacilil}� or a
health care facilit� :
� (3) ]nside cletacheci aceessoiy structtu�es apptu�tenant to private sinJe-tamily d«�ellings.
includin�� accessory cl���ellin�� units:
Pa<�e 7 oi�IS
To���°n Council Ordinan�e N<�. 589 N.S. Effective Date 10/2/2020
(4) Inside private detached t�l�o-Family dwellin�s and detached accessory st��uctt�res
� . appurtenant tl�el�cto:
(5) Inside l�et�il tobacco stoi-es, only if:
(A) The retail tobaceo store does not sell edible products, including. for eaample.
food. water. o�� di-inks, and does not allow sucl� prodi�cts to be consu���ed on thc
pre�l�ises: and
(B) �I�l�e relail tobacco store prohibits minors fi-om cnterin�; the store at all times.
(6) Insidc an encloscd place of employment that employs only the owner and no other
employees or any othel- inde}�endent contractors routinely spelldin« time peri-oi�mii�g
worl< in tlie enclosed areas, pi-ovided that:
(A) The place of employn�e�lt is not a public place; and
(B) The enclosed ai-ea containing the place of einploymei�t does not share a
ve��tilation systenl with any other enclosed place of ein�loyme»t or public place.
28-5 - Prol�ibition oi�smokin�� and tobacco product use ii1 unenclosed ai-eas; exccption 1oi-
designated smol<i»b areas.
(a) Smo]<ing and the use of tobacco products are prohibited in the unenclosed areas of the
following places within the town:
(1) Recreat�onal areas;
(2) Serviee areas;
(3) Public places, i»clt�ding sti-eets and sidewallcs open to tl�e public;
(4) Dini�lg ai-e�s;
(5) Bars:
(6) Common areas of multi-t�nit residences.
(b) Not��%ithstancling subsection (a) above. millti-unit reside»ces, places of employment_ to���n-
c����n�c� or conU�olled ptiblic places, and public events may designate a�i unc;nclosed area
� where smol<ing or use of tobacco products is pern�itted if the area mects all ot�the tollo��°in��
ci�iteria:
(l) ��l�e area is located a reasonable distance, as defi�led in this cl�apter_ fi-om anv �u�it or
�nclosed area �-vhere smokin�� is prol�ibited by this cl�aptei- or other la��: b� bindin��
���-eement 1-elatin�� to the ow»ei-sl�ip, occupancy, or use of real pl�opert}�: or b��
dcsi��i�atioil of a persol� witl� I�gal control over the pl-e�l�ises. � desi;�nated smol:ins ��rea
may r�quire modific��tion or elimination as laws change, as binclin<,� a��reements are
created. and as nonsmol:ing areas on nearby premises are established:
(2) Z�he area does not ir�clude_ and is at least one 17undred feet fi-om. unenclosed areas
pr-imai�ily used by children and unenclosed areas with im�rovements that facilitate
physical activity iTlcll�di�lg. ioi- e�ample. playgrounds, s�ui»�ming pools. and schuol
C�it���l1SZS:
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To4vn Co�u�cil Ordinance No. 589 N.S. Effective Date 10/2/2020
(3) "The area includes no more than iwenty-five percent of tl�e total unenclosed area of a
, multi-unit 1-esidence if located ���ithin the pz�emises�of a inulti-unit i�esidence.
(4) "I'he are�i has a clearly n�arl:ed perimeter;
(�) The area is iclentific.d by conspicuous signs;
(6) The ai-ea is completely witllin aTl wleilclosed area; and
(7) �I,he area does ��ot overlap with v1y enclosed or tmellclosed area in wlzich smol<i�1g is
otl�ei-���ise prohibited by this cl�apter or other pr-ovisions of tl�is Code. st�te la��%. oi-
lederal la«.
� (c) Not11i�1g in tllis sectioll pi-ohibits any person oi• nonprofit Entity with ]egal contl-ol ovel- a��y
pi-opertv ii�o�i� prohibiti�l� s�nol:in« and tobacco product use on any part of such pi-operty,
eve�1 if smol<in�� ol�the use of tobacco products is not otherwise prohibit�d in tl�at �rea.
28-6 - Smol:i»�1-egulaied in places of�employment.
(a) Each employer l�avin� an enclosed place of employment located witl�in the town shal]
adopt. implement. �nal<e I:nown and maintain a written sinol<ing poliey tl�at sl�all contain tl�e
Iollo��%ing r�ec�uireme�lts:
Smol:in�� is prohibited ii� all e»closed facilities within a place of employment without
e�ceptioi�. "This i�lcludes conlmon worl< areas, auditorit�ms, classrooms, conference and
»�eeting rooms. pi�ivate otfices. elevators, hallways, medical facilities, eafeterias_ en�plo�-ee
lounges. stairs. restroo�lls, �Zonp�i-sonal vehicles and all othei• cnclosed facilities.
(b) The smol<in�� ��olicy sl�all bc c�onlmunicated to all employees within thirty days of it�s
adoption. �nd at least anl�ually thereafter.
(c) �ll emplo}%ers shall comply witl� these �lonsmolcing provisions and s11�11 be responsible foi�
theii- implell�entation in tlzeir places of enlployi7lent.
(d) "No Smol<in�" signs shall be conspicuously postcd at building entrances and in employee
loun�es, cafeterias ai�d lunchroo�ns.
(e) All employers �hall supply �i �-vritten copy of the smo]<ing policy to any e�istin�.z or
pros��ective emplo�ee.
(f) Places ol� employment e�eu�pt ii�oil� the prol�ibition on snloking in other sections ot this
chapter shall also be c�e�»pt from tllis section.
28-7 - Smol:ing 1-esti-ictions foi-ne��� �ind cxistinb units of multi-unit reside»ces; i�esponsibiliti�s
oi�homeo���ner assoc�ation in conun�>>1 intei�est comple�es.
(a) V1ith respect to all e�isting i.inits of n�ulti-w�it residences in whicl� smol<in�? ��as »ot
prohibited bti this chaptr:r prior to Atagust 17, 2018, said units sl�all becon�e subject to the
provisions of this chaptei- si�t� c1�3ys following nugust 17, 20l 8.
(b) Not��-ithstandin�� subsection (<�) abo��e to the coiltraiy; each and evei•y unit of a multi-Lmii
residence. the occupanc� of which becomes available for the firsi tiine on or after /lugust
17_ 20]�. shall be subject to ancl controlled by this chapter.
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(c) The homeov��ners association. or its dLily-appointed ma»abeinent a�ent, ior each common
i�lterest complex subject to tl�is ch�ptel- shall. within si�ty days of August 17_ 2018:
(1) Fstablish a smolce-fre� policy that meets or eaceeds tl�e applicable provisions of this
cl�apter ���ith respect to th� indoor or outdoor areas of tl�e entire premises:
(2) Notify all owners and residents withii� tl�e common intErest coil�plea of the smokc-frec
policy, iucludin� a pro��ision that e�plaii�s that violations will be treated i�1 the sa�ne
way as noise pollutioi� ol� other rules;
(3) Post signs at the parl:i»g lot entrances tl�at notify owners, residents_ tlleii- visitoi�s ancl
cont�ractors about tl�e smol:e-f�ree policy; and
(4) Establish a process for addressing complaints_ si�llilar to that used for violations of
othe�� homeow�lel- associatioll policies.
28-8 - Requil�ed and in�plied lease ter-�l�s for Llnits in nlulti-tu�it 1•esidences, sianagc, etc.
(a) Requil-ecl lease tei-ms. Evei-y lease oi- otl�el- agreeir�ent for the occupancy of a u�lit in a ne�-�
or existing n�ulti-unit residence shall; consisteilt with provisions of section 28-7. include all
of the followin��:
(A) A clause statin� that smoki�lg is pi•ohibited in tlle unit;
(B) � clause stating that it is � m�terial breach of the ]ease or agreement to 1) violate any
law rebulating smol<ing while on the pre�nises; 2) stnoke in any unit; 3) sn�ol<e in a
com�s�o11 area of the p��emises except in an uile�lclosed designated smolcin�� area.
provided tl�at one lawfi�lly exists ptn�suant to section 28-5(b);
(C) A clause stating t11at all lawful occupants of t11e inulti-unit i-esidence ai-e eapi-ess thi�-cl-
party beneficiaries of tlle above-r�equired clauses.
(b) Whether or not a landloi�d complies with subsection (a) above, the clauses rec�uired by that
subsection sl�all be implied and incorporated by law into eveiy agreement to which
stlbsection (a) above ap}�lies.
(c) A tenant who breaches a smol<in�� or tobacco product use provision of � lease or other
agi-ee�l�ent o1�1:no��illgly allo�vs anotl�ei•person to do so sl�all be liable to:
(l) The landlord: and
(2) �I�o any la�arful occupant of the multi-unit res�dence who is exposed to secondhand
smoke as a result ol� that breach. A landlord shall not be liable to anv person tor a
tenant's br�ach of si»oking or tobacco }�roduct use pi°ovisions if the landlord l�as full��
complied �vitl� ihe requiren�ellts of this chapter.
(d) l�ailure to enforcc an}� smo]<ing or tobacco pi-oduct t�se provision of a lease or otl��r
agreement on one or more occasions shall not constitute a waiver of the lease or agr-ecment
pr�ovisions required bv this scction and shall not prevent future enforcement of �nv such
SI1101<117� ]"Z��ll�<1t101� OI] 11701�1�1' OCCaSlOtl.
(e) DisclosLn-e of designated smokin�� area. Every landlord sl�all maintain a diagram th3t
illt�strates tl�c precise location ancl conligiiration of any designated smoking area. "I�his
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dia<�ram sl�all accompany every ne��� lease, lease rcnewal_ lease eatension, or other
agreement for the occupancv of a L�nit in a multi-tu�it residence.
(� "No smolcin��" si<rns. ���itl� letters of no less tllan one inch in I�ei�ht oi- t11e i»ternatio»al "No
s�nol<ing" symbol (consistin;� of a pictorial representation of a burrlinb cigarette encloscd in
a red circle crossecl by a red b�r) shall be clearly and conspicuously posted in the common
are�s of multi-unit i�esidences, at ever�-� entrance and eait and on evei-y floor»ear an elevatoi-
or conu»on stair�a-e11. Such si��ns sl�all be maintai»ed by the landlord. The absellce of si<,�ns
sliall not be a defense to a violatioii of�any pi-ovision of this cl�apter.
(�) Tl1is section s11a11 »ot cl-eatc �dditio�lal liability for- a landlord for a pei-son's violation oi'
this chapter �rovidcd that the landlord has fully complied with the required disclosure, sign
posting, a�1d othei-provisions of t11is section and section 28-5(b).
(1�) Failure to enforce any smol<in�� provision required by this section shall not affect the right
to enforce such pi-ovision in the tuttu-e. nor shall a waiver of any breacll constitute a waiver
of any subsequent breach or a ���aivei- ol��tlie provision itself.
28-9 - Other requirements and prol�ibitio»s.
(a) No perso» or l�onpro�tit entitv shall I<n��wingly permit smoking or the use of tobacco
pl-oducts in an area which is under the legal oi- de facto control of that �erson or nonproi-it
entity and in whicl� smol<in�� or the use of tobacco pl-oducts is prohibited by law.
(b) No person oi- nonpro�it entit} shall 1<nowinbly or intentionally permit the presence or
placement of asl� receptacics_ such �s_ for eaai��ple, ash trays or ash eans, within a» area
under the lebal or de facto contro] of that pei-so�1 or nonprofit entity and in which sinolcing or
the use of tobacco products is prohibited by law, including, without limitation; w�thin a
reasonable distance as defined in this chapter fi-om any ai-ea in whicl� smolcing or tl�e use of
tobacco products is }�rohibited. Not���itl�standinb tl�e foregoing, the presence of ash
receptacles in violation of this chapter shall not be a defense to a charge of snlol<ing or the
use of tobacco products in violation o�t�any pi-ovision olthis chapter.
(c) No person sl�all dispose: 01�used smol:in� or tobacco product waste witl�in the boundaries
of an al-ea in ��hich smol:in�� ol- tobacc« product use is pl•ohibited, incltading withiil a
re�sonable dista»ce �s detined ii� this cl�apt�r.
(d) �ach i»stance of smol�ing or the use ol�t�:�bacco pi�oclucts in violation of this cl�aptei- shall
constitute a separate ��iolation. l�or �iolatic�ns othcr than for smol<ing or the use of tobacco
pl�oducts in violation oi�this chaptcr. each uav oi�a conCil�ui»� violation of this chaptei- sl�all
constitute a separate violation.
28-10 - Posti»g of�si��Is.
(a) The person. employer. business or non-profit entity �vitl� legal or actual control of a
buildinb or area ���hei-e smol:in�� is prohibit��d bv tllis cl�apter shall clearly and conspicuously
post "No Si��ol<in�" sigi�s at the el�trances ��f eve�y buildiilg, as well as in othei� areas undel�
their cont��ol where smokin�� is prohibitecj under this chapter. However, whei-e an entirc
building ol- premises is non-smol<ing. onl�� entra�Ices �leed be sig�led, provided that they are
� si<�ned to that el�fect.
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(b) F.very tobacco retailer_ i�etail tobacco store. and every venclor of tobacco products shall
� visibly post signage ptu�suant to California Business and Professions Code Section �?9�2, or
� si�ccessor sections thereto, which signage shall expl-essly ref�erence California Penal Code
Section 308. or successoi- sections thei-eto. at tl�e entrances oi� any premises stibject to
i-e�alation undei- section 28-1 l of this cl�aptei- and applicable cotu�ty. state ai�d/or federal
la�-v.
(c ) Lvery tob�cco retailer, retail tobacco store, and evcrv vendor of tobacco products sl�all
visibly post sigila�e that says "Flavored Tobacco sales are prohibited in the �l,own of
Tiburon''. 7�he letters on said signs sl�all be at least one inch tall.
(cl) "I�l�e absence of signs sl�all not be a defense to a violation of any provision of this chaptei-.
2�-1 1 - Sale of tobacco products re�ulated.
(a) Any perso�l, business; tobacco retailer, i•etail tobacco stol-c. ol- othei- establishme�lt subject�
to tllis chapter shall post plainly visible signs at each point of ptiu�chase of tobacco produets
tl�at state "THE SALE OF TOB�CCO PRODUCTS TO PERSONS UNDER 21 Y�ARS OF
AG� IS PROHIBI`T'ED BY LAW. PHOTO ID RF,QtI1RED. "I,HE FINE �'OR 13UYING
TOI3ACC0 FOR ANYONE IJNDER 21 IS $200". The letters on said si�ns shal] be at least
o�1e-half incl� tall. These signs shall be updated as �lecessarv to co�lform to a�1y subsequent
state or Federal requirements or ameildments to Business and Professions Code section
22952 and/or� Penal Code section 308(a) oi- successor sections thei-eto.
(b) No person. busincss, tobacco retailer, oi- other establishment subject to t11is chapter shall
sell_ offer to sell, or permit to be sold any tobacco product to an individual without
requestin� al�d examining ideniifcation establishin� the pLu�chaser's a<�e as t��renty-��ne years
or <rreatei- tu�less the seller has sonle clear and convincing basis for lcno���ing the bu��er's age.
(c) Sale of tobacco products at pharinacies is pi-ohibited. All othei� vendoi�-assisted sales of
tobacco products in th� town shall rec�uire prior issuanee; of a conditional u;e permit
pursuant to title iv, chaptier 16 (Zoning) of this Code. lt shall be unla��fu1 1-or an�� person,
business_ tobacco retailei-, or retail tobacco stoi-e to sell_ permit tu be sold. oi� offer for sale
any tobacco pi-ociuct by means of selT service mer�chandising. or by anv means c�tl�er tl�a�1
vendor-assisted sales.
(d) Sale of Flavoi-ed Tobacco pl-oducts is prohibited.
(e) No person. business, tobacco i-etailei-. I�etail tobacco stol�e. ol� other establishment subject
to this chapter shall locate, install. kcep. maintai» oc use_ or ��ermit the location_ in�tallation.
keepi�l;�. mainten�ince o1� use o�l his. lier or its premises any ��eildin�� n�achine for the pul�pose of�
scllin�� or distributing any tobacco product.
(f�) Any person. business. tobacco i�etailei-, i-etail tobacco store. o�vner. mana��er. or o}�eratoi� of
any establisl�ment subject to this cllapter that violates an}� pi-ovision of this section shall be
deemed gtliltv of a misdemeanor and upon conviction shall be subjeet to a iine as s�t torth in
Penal Code sect�on 308(a) or successoi� sections thereto.
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28-12 - I�nfol-ccment.
� (a) 7�Ile remedies pi-ovided by this chapter ai-e cuii�ulative and in addition to a�ly otl�ei-
� remedi�s available at law or in cc�uity.
(b) Each incident of sn�olcing or use of tobacco prodt�cts or other conduct in �,iolation of this
chapter shall be siibject to enforcen�eilt }�ui-suant to cllapt�r 31 0�1�tliis Cocle.
(c) Tl�e l��alth department officer shall 1-equire, �chile an c:stablisl�ment is undergoi�lg
otl�er���ise m�ndatoiy inspections, certification i�rom the owner_ mana��cr. o�erator oi- otllei�
person l�a���ing co�ltrol of silch establishment tl�at all rec�uirei��ents of this chapter have been
complied ���ith.
(d) Violations of this chapter are subject to a civil action brot�ght b�� the to���n. punishable by a
civil fine not less than two hundred fifty dollars and �iot exceeding one tl�ousand dollars pei�
��iolatioll.
(e) Causillg. pern�itting, aiding, abetting, or concealing a violation of �ny provision of tl�is
cl�aptei- shall also constitute a violation of t11is chaptei-.
(�� Any violation of this chapter is hereby declared to be a nuisance.
(�?) In addition to other remedies provided by this cllapter, this code. ol� by othel� law. any
violation of tl�is chapter i11ay be remedied by a civi] action brou<�ht by the town attori�ey.
includin�. but not linlited to, administrative or judicial nuisance abaten�ent proce�:dings.
civil or ci-i���illal code enforcelnent proceedings, and suits lor injlinctiive relief.
(l�j Any person acting for the intei•ests of itself; its membei-s, or tl�e ��enef-al public (llereinafter
"pi-ivate enfoi-cer") n�ay bring a civil action in any court of competent jui�isdictioll, including
small claims court, to enforce this chapter against any peison wl�o I�as violated this ch�pter
t�vo or mor�e tiines. Upon proof of the violations, a court shall grant all appi-opriate 1-eliej_
including �3wardine damages and/or issuing an in.junction or a conditioi�al jud�ment.
(i) E�ce�t as otherwise provided, enforcement of t11is cl�apter is at the sole discl-etion of t11e
to��i�. Nothin�� ii� this cliapter shall create a ribht of actioll in any person against t}Ie tow�1 or
its a�cnts to coinpel publie enforcement of this cl�aptei• agai�lst }�1-iv�te parties.
(j j �I�he purposes of this chapter ai•e to restrict and/or pl-ohibit smol:ing and tlse of tobacco
prodlicts ti��r the benefit of the public healtl�, safety and welfare. "This chapter establishes no
ne��v right; foi� a person who engages in smoki���� or the use ol� t�bacco products.
Not�.�ithstanciing (1) ai�y provision of this chapter oi� otl�er provisions of this code: (2) any�
jailtu-e b�� al�y perso�i to restrict s�ilokin�� oi- Lise of tobacco products tinder this chapter_ o��
(3) an}� ex��licit oi� implieit provisioli of this cl�apter that allows �r»olci»� or Lise of tobacco
products ir�� amt place; nothin� in this chapter sh�ll be interpreted to limit any person's legal
ri��hts to s�el: i-edress or recovely of da�nages undei- other law�s as a 1-esult of smol<in�� or use �
of tob��ccc� pl-oduets, including, foi- eaample, i-i��17ts i17 nllisa��ce. ti�espass. pi-operty clama<�:e.
and pel-son�.11 injui-y or other legal or equitable pl-i�lciples.
28-13 - Violati�>»s and penaltics.
(a) It is unia�.�-fu1 fol- a�ly person or non-profit entity ��-ho o���ns. �nai�ages, operates ol�
otller���ise �onti�ols tl�e use o1��ny premises or �reas subject to r�egt�l�tion u�ldel� sections 28-3_
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?8-4. 28-5. 28-6. 28-7, 28-8. 28-9. 28-10, 28-1 l, or 28-]4 of this chapt�r to fail to comply
� �vith an� ol�its provisio�zs.
(b) lt is unlawtul for any person to s�nol<e or use tobacco products in an}� area where smoking
oi- use oi�tobacco products is prohibited tu�der provisio�Is of this cl�apter.
(c) Any person. non-pr-ofit entity, business, retai] tobacco store. ol- o�uer. �iianagei- ol- o}�erator
of anv establishment subject to this chapter who violates any provision of this chapter. other
thal� section 28-1 l, shall be deemed guilty of an infi-actio» and upon convictiol� shall be
st�bject to pa}�ment of a fine not less than two htu�dz-ed fifty dollars and not exceeding one
thousand dollars per violation.
(d) Violatio»s of sectioll 28-11 s11a11 be a misdemeanor.
2�-14 - Nonretaliation.
No person or employcr shall discharge, refizse to hire or in any manner ret�liate against any
en�ployee or applicant for employment because sueh enlployee o3� applicant c�ercises any i-i�ht to
a s�nol:e-Ii-ee envii-oninent afforded by tllis chapter.
?8-15 - Public edtication.
"l,he to�-vn mana�er ol-his/11er designee will engage in 1 contilnling educational pro��ram to
eaplai�l and clai-if}% tlle pui-poses and rec�uirements of this chapter. as well �s a ��Lzide to o��ners,
operatoi-s and ma»agei-s witli compliance. However, lack of such education shall be no defe»se to
a violation ofthis chapter.
28-16 - Govc.r�ImeJltal cooperatioil.
� "The town mat�agEr or his/her designee may annually request other governmei�tal and
ed��cational agencies having facilities within the town to establish local operatin� proced�u�es in
cooperation at�d compliance with this chapter. This includes urging all federal. state. coiu�tv aiid
school district agencies to u��date their existing smoking conti-ol 1-egulations to be consiste�lt witl� �
curl�ent health i�indi�lgs ►-eg�rdin� enviro�ulle�Ital tobacco s�nolce.
28-17 - Othei- �pplicable la��s.
It is tl�e intent of the to���n to supplemerlt applicable state and federal la��v and not to
duplicat� or contraclict such law. and tl�is chapter sl�all be construed in a manner consistent with
that intelltion. "This chaptei� sl�all i�ot be inteipreted or co7�sti-ued to per�l�it smol:ing �vh�re it is
othci-�-visc restricted by other applicable laws.
Section 2. California Environmental Quality Act
"I,he "I�o��n Council finds that adoption of this Ordinance is cxcn�pt From tl�e California
Environ���ental Quality Act ("CEQA") pursuant to Section l 5061(b)(�) of State CEQ�1
Guideli»es becausc it can be seen with certainty that there is no possibilit�� that the adoption of
this Ordinance or� its implementation woLild have a significant effect on the e»vironment.
Pa��c 1=1 01�1�
I�o���n Council Ordinance No. ��9 N.S. Effective Datc 10/2/2020
Section �. Se�ei-abilitv
� lf a»v section, subsection, clause, sentence; or phrase of tl�is Ordinance is fc�r am% reason
held to bc: invalid or unconstitutional by a decision of a Court ol�competent jurisdictio». such
c�ecision sl�all not atfect the validity of the remaininb portions of the Ordi»ance. "l��he "To���n
Council of the "l�o���n of"l�iburon hei-eby declares that it would h�ve passed this Ordi���nce_ an�
section. subsection_ sel�tence. clause or phrase thereof; ii-respective of the fact tl�at any one or
n�oi�c scctions_ subsections, sei�te�ices, clauses, oi•phl-ases may be declared i�lvali�� or
tmconstitutional.
Seciion 4. E1�fective Date.
This ordinallcE shall be in lull force and effect thirty (30) davs after the date of
adoption. Pursuant to the pl•ovisions of the California Govcrnment Code, a su»�mar}� of tllis
ordina��ce shall be prepared by the Town Attorney. At least five (5) days p��ior to the Town
Council »�ec�in�� at ���hich adoption of the ordinance is scheduled. the Town Clerl< shall (1)
publish the sumn�ai-y in a »ewspaper of general circlllation in the Town of Tiburon, and (2) post
in the office of the To��n Clerl< a certified copy of this ordinance. Witl�in fiftee�� (15) days after
the adoption of this ordinance, the Town Clerlc shall (1) publish t}�e slunmary in a ne�spapc:r of
general circulation in the �I,own of Tiburon, and (2) post in the office of thc Town Clerk a
certiiied copy of the oi-dinance along with �he names of tl�ose Cowlcil membe;rs votin� for and
against the ordinance.
This ordinancc was read and introdueed at a regul� meetin� of the Tow�� Council ot�the
�I�own ot'Tibiu�on_ 11e1d on August 19; 2020, and was adopted at a regular meeting of�the "l�own
Couilcil of the "l�o��n oi�`I�iburon, held on�he 2"`� of Septenlbel-, 2020. by the f�ollowing vote:
�1YES: COUNCILMI��MBERS: Fredericks, Kulilc, Thiei�, Ryan_ Welner
NAYS: COlJNCILMI�MBEIZS: None
AI3SEN"T: COLiNCILMFMBERS: None -�
..-
ALI E FRF � ICI S_ MAYOR
TOWN OI� TIBURON
�.�_.I ES f�:
�, r..�, ,
���� �� �.�-
I };A� :F ��]Y. "I OV�'N ('LLRK
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