City of Culver City, California
Agenda Item Report
Meeting Date: 3/24/2014 Item Number: A-2
CITY COUNCIL AGENDA ITEM: Discussion of Draft Ordinance Regulating Smoking
in Multi-Unit Housing and Direction to Staff.
Contact Person/Dept.:
Heather Baker/City Attorney
Phone Number:
(310) 253-5660
Fiscal Impact: Yes [] No [X] General Fund: Yes [] No [X]
Public Hearing: [] Action Item: [X] Attachments: [X]
Commission Action Required: Yes [] No [X] Date: _______________
Public Notification: Notice Published in the Culver City News (02/06/14 and 03/20/14);
Email: Meetings and Agendas – City Council (03/14/14 and 03/20/14); County of Los
Angeles Department of Health Services (02/05/14 and 03/14/14), Culver City Chamber of
Commerce, Downtown Business Association (03/14/14 and 03/19/14); Coalition for
Smoke-Free Living in Culver City (01/31/14 and 03/14/14); California Apartment
Association – Los Angeles (01/31/14 and 03/14/14); and Coalition for a Tobacco Free LA
County (comprised of over 70 organizations – this notification was emailed courtesy of the
County of Los Angeles Department of Health Services) (02/05/14) and (03/17/14); USPS:
Courtesy Notice Mailed to 57 Homeowners Associations (03/17/14).
Department Approval:
Carol Schwab (03/19/14)
City Attorney Approval:
Carol Schwab (03/19/14)
Chief Financial Officer Approval:
Jeff Muir (by M. Noller) (03/19/14)
City Manager Approval:
John M. Nachbar (03/20/14)
RECOMMENDATION:
Staff recommends the City Council discuss the draft ordinance regulating smoking in
multi-unit housing and provide direction to staff as deemed appropriate (the
“Discussion Draft Ordinance”) (Attachment 1).
BACKGROUND:
Over the past several months, at prior City Council meetings and through
correspondence to City Council Members, the organization Coalition for Smoke-Free
Living in Culver City requested the City Council consider the issue of regulating
smoking in multi-unit housing and possibly adopt an ordinance in this regard. At the
City Council meeting of May 13, 2013, there was a consensus to agendize this
matter for discussion.
On August 26, 2013, the City Council had a general policy discussion regarding this
issue and directed staff to return with a draft ordinance including a “menu of options”
for consideration and discussion. In addition, the City Council requested more
information regarding other cities’ experiences since adoption of their ordinances.
City of Culver City, California
Agenda Item Report
If the City Council were to determine to consider the adoption of an ordinance
regulating smoking in multi-unit housing, there are various elements that may be
included in such an ordinance, some or all of which may be of interest to the City
Council. These policy considerations are set forth in the Discussion Draft Ordinance
and discussed later in this report.
DISCUSSION:
Existing Law|1010|
Existing federal and state laws have certain limited provisions relating to smoking in
multi-unit housing.
• Labor Code §6404.5: Indoor common areas (including hallways, stairwells,
laundry rooms, and recreation rooms) may be subject to the workplace
smoking prohibitions contained in Labor Code §6404.5, if these areas are
places of employment. For example, an indoor common area may be
considered a place of employment if the complex has an employee, such as
an on-site property manager, security guard, or maintenance staff who works
on the property at any time.
• Civil Code §1947.6: Landlords and condominium associations may prohibit
smoking on any portion of the property or in any portion of the buildings,
including inside individual dwelling units, in accordance with the requirements
of Civil Code §1947.6.|1010|
• FHA and FEHA: Tenants of multi-unit residences who have certain
disabilities relating to smoke sensitivity may have other legal remedies
available under federal and state law to address problems with smoke
entering their unit from other units.|1010|
Currently, the Culver City Municipal Code (CCMC) does not include any prohibitions
or restrictions relating to smoking in multi-unit housing.
City’s Authority to Regulate
Although currently there are no prohibitions contained in state law against smoking
in multi-unit housing (other than common areas that are considered to be “places of
employment”), the City is not preempted from establishing its own regulations.
Pursuant to Civil Code §1947.5, local governments may adopt regulations and
policies that prohibit smoking or tobacco product use in residential dwellings. In
addition, it is well established in case law that there is no fundamental right to
smoke, nor are laws that prohibit smoking considered discriminatory against City of Culver City, California
Agenda Item Report
smokers as a particular group. Therefore, in adopting such laws, the City need only
have a rational basis that is related to a legitimate governmental purpose.
In this case, providing for the public health, safety, and welfare is a sufficient,
rational basis for establishing a prohibition against smoking in multi-family dwellings.
Other Cities’ Regulations
Eleven other cities in Los Angeles County {Baldwin Park, Burbank, Calabasas,
Carson, Compton, Glendale, Huntington Park, Pasadena, Santa Monica, South
Pasadena and Temple City (collectively, “Comparison Cities”)} have adopted some
type of regulations relating to smoking in multi-unit housing. Many of the
Comparison Cities’ ordinances also apply to owner-occupied condominiums. Please
see the attached matrix for more information regarding the various elements of each
city’s ordinance (Attachment 2).
Policy Considerations
If the City Council determines to establish smoking regulations in multi-unit housing,
there are many options to consider for inclusion in an ordinance. These options are
identified in the Discussion Draft Ordinance and further discussed below.
1. Applicability of Regulations:
a. Definition of multi-unit residence. An important initial step in establishing
regulations is to define the type of dwelling(s) that will be subject to the
regulations (i.e. apartments, condominiums, long-term health care facilities,
single room occupancy hotels (SRO), and motels). The general definition of
“multi-unit residence” is a property containing two or more units. However,
the City Council has the option of excluding certain types of property from this
definition, such as hotels/motels that meet certain requirements, a mobile
home park, a single-family home, a single-family home with a detached or
attached second unit, a long-term health care facility, an SRO, etc. Seven of
the Comparison Cities apply their non-smoking regulations to all
condominiums and one additional Comparison City applies its regulations to
condominium rental units only. (See Section 9.11.205 of the Discussion Draft
Ordinance)
b. Existing and/or new units. The City may prohibit smoking in individual units
that are in existence at the time of the effective date of an ordinance or new
units that receive a certificate of occupancy after the ordinance is in effect, or
both. According to the Community Development Department, depending on
the scope of the regulations, the ordinance could potentially affect 8,793
multi-family units.
City of Culver City, California
Agenda Item Report
i. Designation of existing units. The ordinance may apply to all
existing units, as is the case in the Comparison Cities of Compton
and Pasadena. In the alternative, the ordinance may require a
landlord to designate a certain percentage of existing units as non-
smoking units. The Comparison Cities of Baldwin Park, Calabasas
and South Pasadena require 80% of existing units be designated
as non-smoking units. It appears that the remaining Comparison
Cities do not require a minimum number of designated non-
smoking units, but do require that they designate units as either
“smoking” or “non-smoking” through a designation process as
described in the “phase-in plan” section below. (See Sections
9.11.230 and 9.11.245 of the Discussion Draft Ordinance)
ii. New units. With the exception of Carson, all of the Comparison
Cities prohibit smoking in newly constructed units. With this
provision, the City Council has the option of the percentage of new
units that are designated non-smoking and the timing of when new
units are subject to the regulations. The City can provide for 100%
of all new units to be non-smoking or it can designate a lesser
percentage, i.e. up to 100%, but no less than 80% (or some other
number). In addition, in defining “new unit,” the City Council may
choose to “grandfather” new units that are already under
construction at the time of adoption of an ordinance and require
compliance in new units built or leased for the first time over 180
days after the effective date of an ordinance. (See Section
9.11.225 of the Discussion Draft Ordinance)
iii. Phase-in Plan. A “phase-in plan” in general is one approach used
by some of the Comparison Cities to balance the public health
needs against the potential inconvenience an ordinance may place
on smoking tenants and landlords who must implement a new
policy. Specifically, a 12-month phase-in plan is generally
considered to strike a good balance between the potential legal
rights of tenants under existing rental agreements and the legal
authority of landlords to modify such rental agreements in
compliance with a newly adopted ordinance. Such a phase-in plan
could include a period of time for the landlord to notify tenants of
proposed designated non-smoking units (i.e. 60 days); a period of
time to notify tenants of the final designation of non-smoking units
(i.e. 90 days); a deadline for landlords to submit designation
documents to the City (i.e. 120 days); and an “effective date” on
which the non-smoking regulations will be enforced (i.e. 365 days).
Staff received information from the City of Glendale that pre-
education of the laws and implementing the new regulations City of Culver City, California
Agenda Item Report
gradually have been key factors in gaining cooperation from
landlords and tenants.
c. Definition of Smoking.
i. E-cigarettes. The City’s current smoking regulations (smoke-free parks
and outdoor dining areas) do not include e-cigarette use in the definition of
smoking. The City Council should consider whether to include
e-cigarettes in the definition of smoking for purposes of regulating smoking
in multi-unit housing. Four of the Comparison Cities (Baldwin Park,
Huntington Park, Glendale, and South Pasadena) include e-cigarettes in
their prohibitions of smoking in multi-unit housing. Recently, several cities
have considered or are considering expanding their smoking regulations in
general to prohibit the use of e-cigarettes in all places where smoking is
prohibited. (See Section 9.11.205 of the Discussion Draft Ordinance)
ii. Medical Marijuana. State law (Health and Safety Code Section
11362.79(a)) provides that nothing in the Compassionate Care Act of
1996 (the voter approved Proposition 215 which allows the use of medical
marijuana) does not authorize the use of medical marijuana in any place
where smoking is prohibited by law. Therefore, without a specific
exception called out in an ordinance, the smoking of medical marijuana
would be prohibited in non-smoking units. Of the 11 Comparison Cities, it
appears that South Pasadena is the only city that specifically exempts
smoking of medical marijuana from its multi-unit housing regulations. The
remaining Comparison Cities do not have such an exemption. (See
Section 9.11.255 of the Discussion Draft Ordinance)
2. Locations Where Smoking is Prohibited: There are various options for prohibiting
smoking in certain locations.
a. Common Areas. The City may prohibit smoking in indoor and/or outdoor
common areas and may provide a landlord or homeowners’ association with
the authority to designate a portion of a common area as a designated
smoking area, subject to certain requirements (i.e. must be an unenclosed
area, located a certain distance from a designated non-smoking area or area
primarily used by children or used for physical activity, such as a tennis
court). (See Sections 9.11.205 and 9.11.215 of the Discussion Draft
Ordinance)
i. Indoor common areas. All of the Comparison Cities have adopted
non-smoking provisions for indoor common areas. An indoor
common area is generally defined as an enclosed area that
residents of more than one unit are entitled to enter or use (i.e.
lobbies, hallways, laundry rooms, elevators, stairs, community
rooms, gym facilities, parking garages, etc.). City of Culver City, California
Agenda Item Report
ii. Outdoor common areas. All of the Comparison Cities, except for
Burbank, Carson, and Temple City, have prohibited smoking in
outdoor common areas. An outdoor common area is generally
defined as an unenclosed area that residents of more than one
unit are entitled to enter or use (i.e. pathways, courtyards,
swimming pools, parking lots, etc.).
b. Individual balconies and patios. Seven of the Comparison Cities
prohibit smoking on individual balconies and patios, including Baldwin
Park, Burbank, Compton, Glendale, Huntington Park, Santa Monica and
Pasadena. Such a restriction is best accomplished by including exclusive-
use areas in the definition of “unit.” (See Section 9.11.205 of the
Discussion Draft Ordinance)
c. Smoke-free buffer zones. Such a provision would prohibit smoking in
unenclosed areas of a multi-unit residence (i.e. balconies, porches, decks
and patios) that are located within a certain distance (i.e. 25 feet) of the
doorway, window, opening or other vent into an enclosed non-smoking
area. Only four of the Comparison Cities have adopted these smoke-free
zones (Baldwin Park, Calabasas, Huntington Park and South Pasadena).
This restriction would apply to exclusive-use balconies, porches, decks,
and patios of units where smoking would otherwise be allowed, if these
areas are within 25 feet of a non-smoking unit or other designated non-
smoking area. (See Section 9.11.220 of the Discussion Draft Ordinance)
d. Individual units. As discussed in further detail in Section 1 above, many
of the Comparison Cities prohibit smoking in existing and/or new individual
units. If less than 100% of the units are required to be designated non-
smoking units, then there are certain requirements that may be imposed to
restrict the location of the “smoking” units (i.e. no sharing of ventilation
system with non-smoking units; to the maximum extent possible, grouping
of non-smoking units together or in a single building). In addition, a
designation process would need to be implemented, which may require
additional staff resources to be allocated to this effort. (See Sections
9.11.225, 9.11.230 and 9.11.245 of the Discussion Draft Ordinance)
3. Enforcement: If the City Council adopts regulations, enforcement methods may
include City enforcement, private enforcement or both. The enforcement
provisions of any ordinance would be written to provide options for enforcement
and encourage and promote self-regulation and compliance (i.e. clear,
conspicuously posted “no smoking” signs; providing residents with a right of
private civil action).
City of Culver City, California
Agenda Item Report
a. City enforcement. Regulations, if adopted, would be included with the
City’s other smoking regulations and may be subject to the same
methods of enforcement, including, but not limited to, administrative
citations, infraction and/or misdemeanor citations, and civil action, if the
City Council so determines. In the event the City would need to take
an enforcement action, it would be handled as resources permit, taking
into consideration the existing work plans of the Community
Development Department – Enforcement Services Division, the Police
Department, and the City Attorney’s Office. Should the City Council
determine it wishes to make enforcement of any adopted regulations a
higher priority, additional resources would need to be dedicated to this
effort. (See Section 9.11.260 of the Discussion Draft Ordinance)
[Note from the Community Development Director: The
Community Development Department will likely handle the
implementation and enforcement of any ordinance that is
adopted. Depending on the scope of the regulations, this could
require a significant amount of staff time (particularly during the
first months of the effective date of the ordinance). Due to limited
staff resources, the Director recommends that the City Council
consider private enforcement of any adopted regulations.
Alternatively, the City Council may need to consider allocating
resources for temporary enforcement staff to accommodate the
potential workload associated with enforcing the ordinance which
may impact 8,793 multifamily units.]
b. Private enforcement. Consistent with the City’s enforcement provisions
for other smoking regulations, any adopted multi-unit housing non-smoking
regulations may be enforced by a private person. If the City Council
wanted to limit enforcement of the non-smoking regulations in multi-unit
housing to private enforcement only, it could do so. There are other
sections in the CCMC (specifically, the view preservation provisions) that
limit enforcement solely to private parties involved. (See Section 9.11.265
of the Discussion Draft Ordinance)
c. Practices in the Comparison Cities. The cities of Compton, Glendale
and Pasadena provide for local government enforcement of their non-
smoking multi-unit housing ordinances. The cities of Huntington Park and
Santa Monica provide for private enforcement only. The cities of Baldwin
Park, Calabasas, South Pasadena and Temple City provide for both local
government enforcement and private enforcement. The City of Glendale
has one person specifically assigned to implementation of its ordinance,
and its code enforcement staff is the primary enforcement resources. The
City of Santa Monica does limited City enforcement for violations of failing
to have required signage, but for smoking violations it provides for private
enforcement by tenants through small claims court. The City of City of Culver City, California
Agenda Item Report
Calabasas, where a majority of its community is non-smokers, has been
successful mostly with self-regulation of its ordinance.
4. Penalties:
a. City enforcement. If the City Council determines to provide for City
enforcement of non-smoking multi-unit housing regulations, staff
recommends that the penalties imposed be consistent with the City’s other
smoking regulations and the general penalty provisions of the CCMC. For
example, if an administrative citation were issued for a violation, the fines
are as follows: $100.00 for a first violation; $200.00 for a second violation
within one year; and $500.00 for each additional violation within one year.
As mentioned above, City enforcement may require additional staff
resources to be allocated. (See Section 9.11.260 of the Discussion Draft
Ordinance)
b. Private enforcement. If the City Council determines to provide for a
comprehensive scheme for private enforcement of an ordinance, a
“plaintiff” could pursue actual, statutory, and punitive damages. (See
Section 9.11.265 of the Discussion Draft Ordinance)
5. Outreach and Education: If the City Council directs staff to return with a
proposed ordinance for consideration and introduction, staff will also return with a
proposed program for providing outreach to and educating landlords, tenants,
and condominium associations.
Public Comment Received
In response to the public notices sent on this issue for the August 2013 City Council
meeting, the City Attorney’s Office received public comment from the California
Apartment Association (CAA). Attached is CAA’s policy statement, which sets forth
its position that this should be a market driven issue and landlords should be able to
set their own policies, which many landlords have already done. In addition, several
other individuals submitted public comment prior to the August meeting.
In addition, in response to the more recent notices for the current agenda item, the
City Attorney’s Office received a letter from a member of one of the condominium
complexes which advocates allowing homeowners’ associations to determine what
rules are placed within their property boundaries.
All public comment received as of the distribution of this report is included as
Attachment 3.
The City Council is requested to consider the above policy issues and provide
direction to staff as deemed appropriate.
City of Culver City, California
Agenda Item Report
FISCAL ANALYSIS:
There is no fiscal impact to discussing this item. If an ordinance were to be adopted
by the City Council, the additional regulations prohibiting smoking in multi-unit
housing may require increased enforcement activity by the Enforcement Services
Division, the Police Department, and the City Attorney’s Office. In addition, staff
time would be required to: 1) prepare and disseminate information about the newly
adopted regulations; and 2) implement the provisions of the ordinance, which could
be significant depending on the scope of the regulations. These costs cannot be
easily quantified at this time. If the City Council directs staff to return with a
proposed ordinance and provides policy direction as to the scope of the regulations,
staff may be able to return with an estimate of these costs. The more
comprehensive the regulations, particularly if the City Council determines to
incorporate a “designation process” for fewer than 100% of the units in a multi-family
housing complex, the more staff time that will be involved with educating,
implementing, and enforcing those regulations.
ATTACHMENT:
1. Discussion Draft Ordinance
2. County of Los Angeles Public Health Tobacco Control and Prevention
Program Matrix of Non-Smoking Multi-Unit Housing Ordinances in Los
Angeles County
3. Public Comments Received
MOTION:
That the City Council:
Discuss the draft Ordinance regulating smoking in multi-unit housing and provide
direction to staff as deemed appropriate.
|1010| Tobacco Laws Affecting California 2012, Public Health Law & Policy, www.phlpnet.org |1010| Civil Code §1947.5 requires that landlords who exercise their authority to prohibit smoking must comply with all
federal, state and local laws regarding changes to the terms of a lease or rental agreement. |1010| Federal Fair Housing Act; California Fair Employment and Housing Act