City Council Meeting: July 10, 2012

Agenda Item: 7-C  

To:                   Mayor and City Council 

From:              Marsha Jones Moutrie, City Attorney

Subject:          Introduction and First Reading of an Ordinance Amending the Anti-Smoking Law to Require Designation and Disclosure of Smoking Status of Residential Units and to Provide Remedies For Smoking In All Units Designated Non-Smoking

 

 

Recommended Action

Staff recommends that City Council introduce for first reading the attached proposed ordinance which would require disclosure of the smoking status of all units in multi-unit residential properties, and provide remedies for smoking in designated non-smoking units.

 

Executive Summary

The proposed ordinance would make two changes to the City’s anti-smoking laws as Council directed; and also make a third change that is recommended as necessary to effectuate the directed changes.  First, it would require that all existing residential units in multi-unit properties be designated as either smoking or non-smoking, and that the smoking status of units be disclosed in certain ways.  Second, it would deem the units of all new occupancies as non-smoking, including those previously designated smoking that had been vacated.

 

Background

On June 28, 2011, the City Council directed staff to prepare an ordinance to require that all units in multi-unit residential properties be designated by their occupants as either smoking or non-smoking; and to create certain disclosure requirements after the units are so designated.  Council also directed staff to explore other potential areas to expand the City’s protections against second-hand smoke ("SHS") in multi-unit residential properties, and to explore enforcement options. 


On December 13, 2011, staff returned with an ordinance requiring the designation and disclosure of the smoking status of all units in multi-unit residential properties and providing remedies for smoking in non-smoking units.  Council directed staff to conduct further study of various options in this area of regulation and to provide a new update on legislation and other developments in other California cities.  Council also adopted a more limited ordinance prohibiting smoking in newly constructed hotels.

 

Since the December 13, 2011 meeting, staff has consulted further with other agencies and advocacy groups in drafting the recommendations below and the proposed ordinance.  Staff met and consulted with the Rent Control Board, which convened a special study session on the subject; the Building Official and Director of Public Works; the director and staff of Community Corporation of Santa Monica; a study group comprised of a Councilmember, Rent Control Board member, and other tenant rights advocates; and counsel for the Technical Assistance Legal Center.  Staff also considered the policies previously adopted by Council and input from members of the public and the Apartment Association of Greater Los Angeles.  Finally, staff reviewed studies conducted to measure the migration of SHS between units in multi-unit residential properties and potential ways to reduce such migration.

 

Discussion

Update on Other California Cities' Legislation and Enforcement

Since staff's last report a number of California cities and other local jurisdictions have adopted new second-hand smoke protections for multi-unit residential properties.  These include the following:

 

As to enforcement, staff has contacted representatives of other California cities whose residential smoking ordinances are already in operation to learn their recent experiences.  The representatives have reported as follows:

 

A complete listing of California cities that had adopted residential smoking restrictions as of November 2011 is attached to this report.

 

Council also requested an update on the implementation of S.B. 332, codified at Civil Code section 1947.5, which is the new state law that confirms the right of property owners to prohibit smoking inside units.  As previously discussed, section 1947.5 does not alter Santa Monica law since it leaves in place rent control protections against unilateral changes in rental terms including smoking restrictions.  The only Santa Monica case staff is aware of related to the new law involved a landlord who instituted a new no-smoking rule in her building, purportedly pursuant to section 1947.5.  A tenant had requested the rule from the landlord after a heavily smoking neighboring tenant refused his requests to smoke outside, and the tenant's unit had become infused with SHS.  The property is under rent control.  Staff informed the owner that local law prohibited the unilateral change, notwithstanding section 1947.5.

 

SHS Studies and Potential Changes To Building Codes

Council requested further information about potentially reducing SHS in residential properties by improving building standards to better insulate non-smoking units.  Staff consulted with Planning and Community Development (PCD) staff, including the Building Official, as well as the Public Works Director.  Staff also reviewed available studies that have been conducted to measure SHS migration between units in multi-unit residential properties, and to assess the viability of building modifications to protect against SHS between units.  The studies, conducted by the Center for Energy and Environment, demonstrate the following:

      There is considerable air transfer between units in apartment buildings including migration of SHS.

      Older buildings have greater transfer of SHS between units.

      Existing buildings can be modified to reduce SHS transfer, but this is generally not a practical alternative.

      Even when buildings are modified, or when applicable air leakage standards are met, neighboring units still receive SHS from units where there is smoking.

 

Adopting local building standards for SHS protection is possible.  However, it would require a finding of unique local factors that warrant departure from the state codes.  Such changes would apply only to new construction.  As to existing properties, requiring retrofitting to insulate units would not be practical.  The time, cost, and effort involved would be likely prohibitive.  And, the studies reviewed indicate that although SHS migration can be reduced through increased barriers and insulation, such changes do not eliminate the migration; and there are no safe levels of SHS exposure.  Also, to the extent properties have shared ducting such as with central heat or air conditioning, such changes would not be effective.

 

The subject of shared ventilation systems has been discussed in previous Council meetings.  PCD staff confirms that most apartments in the City do not share a common ventilation system.  The only exception is the largest new buildings which often feature common ducting.  However, SHS travels between units through walls and ceilings, various shared gaps and cracks (such as where there are plumbing or electrical outlets), and via windows and doors.  Thus SHS migration is not dependent on shared ventilation systems.

 

Proposed Ordinance

(1) Designate And Disclose Rule

The proposed ordinance requires that all occupants of multi-unit residential properties designate their units as smoking or non-smoking, and that a document describing the status of all units be given to all current occupants as well as future prospective occupants.  This portion of the ordinance was previously requested by Council.  The primary purposes of the requirements would be to provide information to those making decisions about where to live, and to decrease exposure to second-hand smoke in residential properties. 

 

Under the proposed law, current occupants of apartments and condominiums would be able to choose either smoking or non-smoking status for their dwelling unit.  If a unit is designated non-smoking, then smoking would thereafter be prohibited in that unit.  If a unit is vacated (including a smoking unit), the unit’s designation would be non-smoking for the next occupant and thereafter.

 

The designate and disclose rule would not apply to properties or units that are already smoke-free.

 

(2)  Remedies For Smoking In Non-smoking Units

Staff recommends that Council include in the proposed ordinance an explicit prohibition against smoking in all units that are designated non-smoking.  All current tenants who choose to designate their units for smoking, or those that remain undesignated, would be exempted.  Thus, all current tenants who smoke would thereby be allowed to continue smoking in their units. 

 

This rule is designed to effectuate the designate and disclose rule.  Without an explicit prohibition, there would be no consequence for smoking in designated non-smoking units.  Conversely, a prohibition on smoking for new occupancies would be difficult to monitor or enforce without the information derived from the designate and disclose rule.  For example, without documentation of non-smoking units at a property, there would be no practical way for a person to know whether a tenant smoking in a unit was grandparented by the ordinance.  The ordinance's requirement that the designation records be available from the owner on demand would enable the person to verify whether smoking was permissible in that unit.  Thus the two rules support each other and appear to be mutually necessary.

 

In staff’s discussions with both the Rent Control Board and the Apartment Association’s local chapter, there appeared to be informal consensus that the designate and disclose rule would work best if accompanied by a remedy for violations.  Under the proposed ordinance the remedy entails a damages award of $100 for a first violation, $200 for a second violation, and $500 for a third and subsequent violations.

 

Policy Considerations

Council has several policy options to address in considering the proposed ordinance. 

 

First, Council should consider the default status for units whose occupants fail to make a designation.  Under the proposed ordinance, such units would remain undesignated, meaning it would still be acceptable to smoke in such units.  It would take an affirmative action by the occupant to "opt in" to non-smoking status.  This is the principal change from staff's prior proposed ordinance.  It was based on feedback from various agencies which believe that it would be unfair to mandate non-smoking status for a unit without the occupant's assent.  If Council considers making the default status non-smoking, it will be important to assure ample notice and opportunity for all occupants to designate the status of their units.

 

Second, the ordinance could be modified to keep private the unit number of designated units.  Thus, prospective occupants could be told that there would be one or more smoking units adjacent to theirs, but not exactly which units those are.  Some people believe that this is a privacy and stigma issue and that it would unduly prejudice occupants of smoking units if all units' designations were made available.  However, staff believes that full and accurate information is essential to implementation of the ordinance.  For example, there would be no way to address potential violations of the ordinance if the designations of specific units were unknown.  Thus the proposed ordinance provides for disclosure of the status of each unit.

 

Third, the City’s Homeless Services Administrator and Human Services Division recommend that any smoking prohibitions inside units not apply to housing used by individuals who are recovering from other addictions or in transition from homelessness.  Although there is a growing trend to prohibit smoking in homeless shelters (including in the City of Pasadena’s new ordinance), this is seen as conflicting with the City’s housing-first policy.  Some Council members and other staff have stated that in Santa Monica the policy of housing those people most at risk takes priority over protections from second-hand smoke.  Thus, given the higher incidence of tobacco addiction in the homeless population, transitional and related housing programs likely should be exempted from both the designate and disclose rule and the prohibition against smoking inside units.  The proposed ordinance reflects this recommendation.

 

Fourth, discussion by community groups has included the option of requiring the disclosures for each property to be filed with a government agency, such as the Rent Control Board, on a regular basis (such as annually).  This presumably would increase awareness of the designations in each unit.  However, such a requirement would create extra recordkeeping work for both property owners and the government agency, while the degree of potential benefit is unclear.

 

As drafted the ordinance requires that all prospective occupants be given a copy of the current smoking status roster.  Council could also consider requiring that periodic updated notices be given to all occupants of a property, such as annually.  This would assure more accurate information is given to occupants; but it would also impose an additional burden on owners.  Staff recommends that owners be required to maintain updated smoking status rosters, but that they only need be provided upon demand by occupants after the initial disclosure.

 

Fifth, Council needs to decide whether to include condominiums in the ordinance.  Thus far, Council has included all multi-unit properties in its residential smoking laws.  Staff sees no reason to exclude condominiums from the proposed ordinance, especially since the effects of SHS on neighboring units are identical.  It should also be noted that under the proposed ordinance, the occupants – not owners – of all units would do the designating.  Hence owners of individual condominium units would not be designating their units' status.  Of course, such owners could simply ban smoking in the units if that is otherwise allowed by law.

 

Enforcement

There are also options as to how the proposed ordinance will be enforced.  As to the designation of units, notice and recordkeeping, the primary onus should be on owners and homeowners’ associations since they are in a unique position to communicate with all occupants and to maintain records.  However, as a matter of standard practice, the City would conduct outreach and education about the ordinance, and owners would be liable only if they refused to comply with the law despite prior written notice and warning (as with existing provisions of the City’s smoking laws).

 

As to violations by people smoking in units that are designated non-smoking, staff recommends keeping in place the existing remedies for other smoking violations at multi-unit properties: violations must be addressed first with an informal effort to resolve the problem.  If that fails, an action could be brought in small claims court for a specified amount of damages.  As with other areas of smoking enforcement in the City, education, awareness and informal resolution should be the main means of effectuating the law.  These have proven effective in the past.

 

Council could also consider direct enforcement of the ordinance by City staff, but there are no obvious available methods.  The Office of Sustainability and the Environment might be a logical candidate to perform in-person enforcement, but they lack available personnel for the job and would need to add employees to do so.  Also, it is not clear how staff would gather evidence sufficient to prove violations in court.  Most likely any City department that performed enforcement duties would rely on written notice and deterrence more than direct legal action.  Although many California cities empower employees to enforce residential smoking laws, as of this writing staff is not aware of any city where  employees have actually begun issuing citations and gathering evidence of violations inside residential units.  Thus, at least for the present, staff recommends staying with the existing enforcement mechanisms, as described above.

 

Another enforcement option is to require that the non-smoking status of a unit be a required lease term for applicable rental units, as many California cities have done.  Thus, units that are designated non-smoking would have a lease requirement inserted to that effect.  In Santa Monica, both tenants’ rights groups and the Apartment Association oppose this option.  Tenant advocates fear misuse of any potential ground for eviction, while many landlords do not want the added responsibility of enforcing smoking rules inside units.  Staff recommends not including any lease requirement as to existing tenants.  For future tenancies, on the other hand, staff sees no practical reason why smoking should not be a required lease term.  However, if Council is inclined to address future tenancies in this manner, staff recommends a gradual approach, beginning with existing remedies for enforcement at least until these rules become more widely known.  Later, if it is seen as helpful, Council could consider broadening the remedies to include required lease terms beginning with new tenancies.

 

As drafted, the proposed ordinance retains the City's prior policy not to make smoking a ground for eviction, though landlords retain the right to do so in new tenancies. 

 

Alternatives

Council could consider various alternatives to the proposed ordinance as described in more detail above.

 

Financial Impacts & Budget Actions

Adopting this ordinance will result in marginal additional costs for outreach and communication.  The City Attorney’s Office, and any other departments conducting outreach, will cover these costs within existing budgets.

 

 

Prepared by:            Adam Radinsky, Head, Consumer Protection Unit

                                    Paula Rockenstein, Consumer Affairs Specialist

 

 

Approved:

 

Forwarded to Council:

 

 

 

 

 

Marsha Jones Moutrie

City Attorney

 

 

Rod Gould

City Manager

 

Attachments:   

           

A:   Proposed Ordinance

 

B:   Matrix of California cities' residential smoking regulation