Smoking Ban and Flavored Tobacco FAQs

At its November 6 meeting, the City Council reviewed the smoking policies for the City’s commercial districts. In April of this year, the City Council adopted an ordinance that established a temporary ban on outdoor smoking in the Broadway Business Improvement District through December 31, 2023. After discussion at the October 2 meeting, the Council considered further input from the community on November 6 and voted unanimously to introduce an ordinance extending the ban as a pilot program through December 31, 2024, as well as to expand the pilot smoking ban to the Downtown (Burlingame Avenue) Business Improvement District. The proposed ordinance also clarifies that the smoking ban will be limited to the public right of way, and will not apply to patios on private property. There may also be additional amendments to the City’s smoking regulations to ensure conformity with State law. The second reading of this ordinance for final adoption was on November 20, 2023.After preliminary discussion at the October 2 meeting, the City Council will again be reviewing whether to add an exception to the City’s Flavored Tobacco Ban to allow for on-site hookah consumption. This discussion is currently scheduled for the November 20, 2023 City Council meeting. There has been some community interest in allowing adult hookah consumption, which involves using specialized water pipes for smoking flavored tobacco. State Law generally requires that indoor hookah consumption take place in dedicated, adult-only smoking lounges that are separated from any food or beverage consumption. However, there are no state regulations regarding the use of outdoor hookah consumption.

In addition to the Flavored Tobacco Ban exception, the City Council will also discuss a potential Tobacco Retailer Permit program at this time. 

The City has prepared a brief Frequently Asked Questions (FAQ), which we hope will answer many of your questions regarding these items. 

Smoking Ban and Flavored Tobacco FAQ

Where can I read about the current City smoking regulations?

Chapter 8.18 of the Burlingame Municipal Code regulates smoking in the City.

Are there also State and Federal laws regulating smoking?

Yes. While there are multiple State and Federal laws regulating smoking, perhaps the most restrictive is California’s Clean Indoor Air Law. This law, modified in 2016 and codified as California Labor Code (LC) 6405.5, states that, “no employer shall knowingly or intentionally permit, and no person shall engage in, the smoking of tobacco products in an enclosed space at a place of employment.” This law, subject to certain exceptions, generally prohibits the smoking of tobacco in enclosed workplaces such as offices, bars and/or restaurants.

California also recently passed SB 793, which banned Flavored Tobacco Sales in California. You can read more about that ban at the California Department of Public Health website.

What are the exceptions to the California Clean Indoor Air Law?
A full list of the exceptions can be found in Labor Code (LC) 6405.5. However, the most common are retail or wholesale tobacco shops and private smokers’ lounges. 
What is a Tobacco Shop or Smokers' Lounge?

Labor Code (LC) 6404.5 generally defines a tobacco shop as a business establishment the main purpose of which is to sell tobacco products. A smokers’ lounge is defined as “any enclosed area in or attached to a retail or wholesale tobacco shop that is dedicated to the use of tobacco products…”

In December 2011, the California Attorney General issued opinion No. 09-507 which clarified that an establishment’s main purpose was not the sale of tobacco products if that same establishment also sold food/beverage. This clarification also applies to a smokers’ lounge; if food and/or beverage is served, it is not dedicated to the sale of tobacco and therefore does not qualify for an exemption.

However, a bona fide tobacco shop or smokers’ lounge is exempt from the California Clean Indoor Air Law, as well as the regulations in the Burlingame Municipal Code.

How is Flavored Tobacco Regulated in the City of Burlingame?
The sale of flavored tobacco is currently prohibited by City of Burlingame Municipal Code Section 8.18.120. There are similar bans on flavored tobacco at both the State and County level. 
Is Hookah Considered Flavored Tobacco?

Smoking hookah involves using specialized water pipes to smoke certain substances, typically flavored tobacco. As flavored tobacco is currently prohibited under Burlingame Municipal Code Section 8.18.120, the sale of such product for use in a hookah is illegal within the City limits. Hookah may also be used to smoke herbal, non-tobacco products, which would be permitted under current State and local laws.

The California Flavored Tobacco ban allows municipalities to create an exception to allow for the sale of hookah tobacco (also known as Shisha), but requires that sales only take place in licensed stores that only allow people aged 21 or older on the premises at any time.

What is the Broadway Outdoor Smoking Ban (Pilot Program)?
In April 2023, the Burlingame City Council adopted a pilot program that banned smoking in all outdoor areas within the Broadway Commercial District. This program was extended on November 20, 2023, and is set to expire on December 31, 2024, unless made extended or made permanent by the City Council. 
Is the City Council Considering Expansion of the Outdoor Ban?

The City Council expanded the Broadway Outdoor Smoking Ban to the City’s other Commercial District on/around Burlingame Avenue as of November 20, 2023. This pilot program is set to run through December 31, 2024, unless extended or made permanent by City Council.

What is a Tobacco Retailer Permit?

In 2023, San Mateo County Supervisors passed an Ordinance to further regulate tobacco retailers in the unincorporated portions of the County. This new law puts additional restrictions on tobacco retailers in these areas, and enhances penalties for violators. The County has also encouraged local cities to follow suit, offering to provide enforcement assistance for cities who adopt the new permitting program.

You can read more about the County’s program here.