City of Culver City, California
Agenda Item Report
Meeting Date: 08/11/14 Item Number: A-1
CITY COUNCIL AGENDA ITEM: Continued 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: PUBLICATION: Culver City News (07/10/14 and 07/24/14); EMAIL:
Meetings and Agendas – City Council (07/10/14, 07/29/14 and 08/06/14); Meetings and
Agendas – Smoking – Multi-Unit Housing (07/10/14, 07/29/14 and 08/04/14);
Approximately 153 Property Owners and 8 Homeowners’ Associations of Multi-Unit
Housing (07/10/14, 07/29/14 and 08/04/14); County of Los Angeles Department of Health
Services (07/10/14, 07/29/14 and 08/04/14), Culver City Chamber of Commerce
(07/10/14, 07/29/14 and 08/06/14); Coalition for Smoke-Free Living in Culver City
(07/10/14, 07/29/14 and 08/04/14); California Apartment Association – Los Angeles
(07/10/14, 07/29/14 and 08/04/14); 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) (07/29/14 and 08/05/14); USPS: 348
Property Owners of Multi-Unit Housing; 17 Homeowners Associations (08/01/14).
Department Approval:
Carol Schwab (08/05/14)
City Attorney Approval:
Carol Schwab (08/05/14)
Chief Financial Officer Approval:
Jeff Muir ( by M. Noller) (08/06/14)
City Manager Approval:
John Nachbar (08/06/14)
RECOMMENDATION:
Staff recommends the City Council continue its discussion regarding a draft
ordinance regulating smoking in multi-unit housing (Discussion Draft Ordinance -
Attachment 1) and provide direction to staff as deemed appropriate.
BACKGROUND:
During prior City Council meetings, as well as 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 adopting 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 wanted more
information regarding other cities’ experiences since adoption of their ordinances. City of Culver City, California
Agenda Item Report
On March 24, 2014, staff returned with the Discussion Draft Ordinance, including a
“menu of options” for City Council’s discussion. During that meeting, the City
Council received public comment, discussed various policy issues, and requested
that a survey be conducted about how property owners and Homeowners
Associations (HOAs) are handling the issue of smoking in their buildings and on their
properties. In addition, City Council directed staff to notify all apartment complex
owners and HOAs regarding the continued dialogue on this matter.
Public Comment
? March 24, 2014 City Council Meeting: Public comment was received both in
favor of and opposed to regulating smoking in multi-unit housing. Some
members of the public that submitted cards left prior to the item being heard
due to the lateness of the evening. Of those still in attendance, the following
is a summary of comments received.
? Opposition: Four speakers (including the California Apartment
Association and the Culver City Chamber of Commerce) felt that
municipal regulation in this area is unnecessary and that the issue
should be resolved between landlords and tenants. These speakers
further believed that the trend in multi-unit housing is that more non-
smoking units and/or non-smoking buildings are available to renters.
Although these speakers were opposed to City regulation, they
requested that, if the City were to regulate smoking in multi-unit
housing, then they would like to see particular issues addressed: 1)
ensure that landlords are not liable to tenants for enforcing (or not
enforcing) the regulations and that the City partner with landlords to
make the regulations effective; 2) provide property owners with
sufficient time (i.e. 15 months) to implement the requirements of the
ordinance; and 3) address the application of smoking prohibition to the
smoking of medical marijuana.
? Support: The remaining six speakers (including a representative from
the Coalition for Smoke-Free Living in Culver City) were in support of
the City Council adopting regulations prohibiting smoking in multi-unit
housing, citing that the migrating smoke through doors, windows,
walls, electrical outlets, and ventilation systems creates significant
health impacts and a nuisance, particularly for children and the elderly
living in apartments and condominium/townhome communities.
? Written Public Comment Received on or After March 24, 2014: Attached to
this report are copies of all written public comment received on or after the
March 24
th
meeting up through and including the date this report was posted
to the City’s website (Attachment 2).
City of Culver City, California
Agenda Item Report
? Additional Public Comment: In addition, staff compiled comments received
during the course of conducting a survey of property owners and HOAs as
directed by the City Council (the survey is discussed further below). These
comments were either included with the survey responses or received by
telephone (Attachment 3).
City Council Discussion
The City Council had a lengthy discussion, but did not come to a consensus on what
elements to include in an ordinance. It was agreed that further discussion needed to
take place after an expanded public notification process and a survey of property
owners and HOAs with regard to how they are addressing smoking in their buildings
and on their properties. A brief summary of the City Council’s discussion (based on
staff’s review of the meeting webcast) is included in the Discussion section of this
report under the applicable policy issues.
Smoke-Free Policy Survey
In order to further inform the discussion of this issue, the City Council requested that
a survey be conducted to determine how many apartment complexes and/or
condominium/townhome communities have smoke-free policies, or any policy at all
with regard to smoking.
Staff sent out a Smoke-Free Policy Survey for Multi-Unit Housing (Survey)
(Attachment 4) to 507 property owners of rental housing and 25 HOAs of
condominium/townhome communities. Of the 532 Surveys sent out, the City
received 41 responses (approximately 7.5% returned). A breakdown of the survey
results is as follows:
? Rental properties: Of the 507 surveys that were sent to rental housing
property owners, staff received 39 responses (approximately 7.5% returned).
? 3 or fewer units: Of the five responses received for three or fewer units,
only one property has an existing smoking policy (smoking is prohibited in
indoor common areas and in 100% of the units and such policy is set forth
in the lease document). The four other properties that responded do not
have an existing smoking policy.
? More than 3 units: Of the 35 responses received for properties with
more than three units, 10 properties have smoking policies in one form or
another and 20 properties have no policy. Of those that have existing
policies, the following table identifies the specific restrictions in each policy
and whether such policy is in writing:
City of Culver City, California
Agenda Item Report
# of
Units
Smoking Prohibited in
Common Areas?
% Non-
Smoking
Units
Written Policy?
4 No 100% for
new
tenants
In lease
4 Yes (indoor) 100% In lease
4 Yes (indoor & outdoor) 100% In lease
5 Yes (indoor) 100% No
6 Yes (indoor & outdoor) 100% In lease
6 Yes (indoor & outdoor) 100% No
6 Yes (indoor) 100% In lease
30 Yes (indoor & outdoor) 5% No
53 Yes (indoor & outdoor) None No
690 Yes (indoor) None Lease stipulates
smoking in
apartments may
not cause
nuisance to
other tenants.
? Condominium/Townhome Communities: Of the 25 surveys that were sent to
condominium/townhome communities, five responses were received (2%
returned). Of the five HOAs that responded, four have existing policies (two
prohibit smoking in both indoor and outdoor common areas; two prohibit
smoking in indoor common areas and allow smoking in outdoor areas, with a
few restrictions in place; all policies are included in the HOAs’ rules and
regulations). The fourth HOA that responded does not have an existing
smoking policy.
? Other Responses: Three of the survey responses are not applicable, as two
are rental properties and one property only has one unit, which does not meet
the definition of multi-unit housing. In addition, one response affirmatively
declined to participate in the survey (her comments are included as part of
Attachment 3).
Next Steps
If the City Council determines 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. Staff requests the City Council discuss these policy
issues and provide direction as deemed appropriate.
City of Culver City, California
Agenda Item 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
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.
City of Culver City, California
Agenda Item Report
Other Cities’ Regulations
Eleven other cities in Los Angeles County, including 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 5).
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. In
addition, a “checklist” is included as Attachment 6 to help facilitate the City Council’s
discussion.
1. Applicability of Regulations:
a. Definition of multi-unit residence. An important initial step in establishing
regulations is to define the type of dwellings 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)
City Council Members’ comments at 03/24/14 Meeting: At least two
Council Members voiced support for regulations of rental housing, while one
of those two Council Members wanted the City Council to further discuss the
applicability of the regulations to condominium/townhome communities, since
there is property ownership in the unit in most cases. A third Council Member
stated that condominium/townhome residents need to lobby their neighbors
and put pressure on HOAs to establish policies. A fourth Council Member
agreed that they would like to see this issue first addressed with the landlords
and HOAs and proposed that the City Council consider establishing
guidelines requiring large apartment complexes and HOAs to take some type
of action to establish a policy (whether that policy was to prohibit or allow City of Culver City, California
Agenda Item Report
smoking), and that such policy should be revisited every two years. A fifth
Council Member indicated that they were in favor of controlling smoking in
multi-unit housing and that they were more inclined to support an ordinance
versus guidelines. That Council Member also expressed a concern about
applying such regulations to condominium/townhome communities.
There was no discussion or direction from the City Council to include long-
term health care facilities, SROs and motels. Based on the input thus far,
staff recommends these facilities be excluded from the definition, if the City
Council determines to move forward with a proposed 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, any adopted ordinance could potentially affect
8,793 multi-family units.
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 setting 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 of 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)
City of Culver City, California
Agenda Item Report
City Council Members’ Comments at 03/24/14 Meeting: One
Council Member was in favor of, and another Council Member was
open to discuss, applying regulations to both new and existing
units. Other Council Members did not address this issue.
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
gradually have been key factors in gaining cooperation from
landlords and tenants.
City Council Members’ Comments at 03/24/14 Meeting: Council
Members in support of establishing regulations were also in support
of a phase-in plan. Other Council Members agreed that if the City
were to adopt regulations, then a phase-in plan would be important.
c. Definition of Smoking.
i. Electronic cigarettes (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) [NOTE: The general
discussion of regulating E-cigarettes has also been agendized by the
City Council for discussion this evening.]
City of Culver City, California
Agenda Item Report
City Council Members’ Comments at 03/24/14 Meeting: Two Council
Members indicated that E-cigarettes should not be included in the
definition of smoking. Other Council Members did not address this issue.
ii. Medical Marijuana. State Health and Safety Code Section 11362.79(a)
provides that nothing in the Compassionate Care Act of 1996 (the Act
which allows the use of medical marijuana) authorizes the use of medical
marijuana in any place where smoking is prohibited by law. Therefore,
without a specific exemption 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)
City Council Members’ Comments at 03/24/14 Meeting: Two Council
Members were in concurrence that medical marijuana should not be
exempt from any regulations that may be adopted. Other Council
Members did not address this issue.
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.).
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.).
City of Culver City, California
Agenda Item Report
City Council Members’ Comments at 03/24/14 Meeting: One Council
Member stated that it was very important to have a designated smoking
area within the common areas if smoking were prohibited. Another
Council Member indicated they were open to suggestions as to locations
where smoking would be prohibited. Other Council Members did not
address this issue.
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)
City Council Members’ Comments at 03/24/14 Meeting: One Council
Member was in strong support of prohibiting smoking on patios and
balconies, indicating that there seems to be a lot of complaints from
residents regarding these areas and that it seems to be a place that is
least regulated but causes the most problems. Other Council Members
did not address this issue.
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 could 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)
City Council Members’ Comments at 03/24/14 Meeting: Two Council
Members supported smoke-free buffer zones. Other Council Members did
not address this issue.
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) City of Culver City, California
Agenda Item Report
City Council Members’ Comments at 03/24/14 Meeting: Two Council
Members supported designation of non-smoking units. One Council
Member was open to discuss a designation of less than 100% of the units
if it was possible to locate such units in a detached building. Other
Council Members did not address this issue.
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).
a. City enforcement. Regulations, if adopted, would be included with the
City’s other smoking regulations and could be subject to the same
methods of enforcement, including, but not limited to, administrative
citations, infraction and/or misdemeanor citations, 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
elect to provide City enforcement and determine it wishes to make it 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. 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 adding
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 that are limited solely to
enforcement by the private parties involved. For example, the
enforcement provision in CCMC Section 9.12.060.A, relating to View City of Culver City, California
Agenda Item Report
Preservation (Obstruction from Trees), states: “A violation of this
Chapter is not a misdemeanor or infraction. The enforcement of this
Chapter shall be by the private parties involved. The complainant shall
have the right to bring injunctive action to enforce…this Chapter.”
Enforcement of smoking complaints in multi-unit housing could be
similarly limited in this manner. (See Section 9.11.265 of the
Discussion Draft Ordinance)
c. Comparison Cities.
i. Local government enforcement. The cities of Compton, Glendale
and Pasadena provide for local government enforcement of their
non-smoking multi-unit housing ordinances. The City of Glendale
has one person specifically assigned to implementation of its
ordinance, and its code enforcement staff are the primary enforcers.
The City of Pasadena’s Department of Public Health enforces its
regulations, with one dedicated enforcement officer. They conduct
field investigations in response to complaints. They give a warning
first and then issue administrative citations to repeat violators. Most
issues are resolved after the warning with some being resolved
after the first citation. It has been rare that they have had to issue a
second citation.
ii. Private enforcement. The cities of Huntington Park and Santa
Monica provide for private enforcement only. The City of Santa
Monica does limited City enforcement for violations pertaining to
required signage, but for smoking violations it provides for private
enforcement by tenants through small claims court.
iii. Hybrid of both city and private enforcement. The cities of Baldwin
Park, Calabasas, South Pasadena and Temple City provide for both
local government enforcement and private enforcement. The City
of Calabasas, where a majority of its community are non-smokers,
has been successful mostly with private self-regulation of its
ordinance. The City of South Pasadena has also been successful
with its regulations being self-enforced. Its code enforcement
department has issued warning letters, which have been very
effective, and it has not had a need to issue citations.
As of the writing of this report, staff is still awaiting information from
some of the other Comparison Cities. Supplemental information may
be provided during City Council’s discussion of this item, if received
prior to the City Council Meeting.
d. Culver City’s current enforcement of other smoking laws in the
City. The City prohibits smoking in parks and outdoor dining areas. In City of Culver City, California
Agenda Item Report
addition, state law prohibits smoking in the workplace, which includes
bars and restaurants.
i. Outdoor dining areas. The City’s Enforcement Services Division
ensures that the outdoor dining areas have the required “no
smoking” signs. If no signage is posted, then a “warning” is given
to the business owner and a “sample” sign is provided for their use.
Approximately three years ago, shortly after the adoption of the
Ordinance prohibiting smoking in outdoor dining areas, the
Enforcement Services Division conducted a directed enforcement
in the downtown area and issued approximately four administrative
citations for noncompliance, after warnings were given and
ignored. Eventually, all downtown restaurants with outdoor dining
complied, and the Enforcement Services Division has not had any
issues with missing signage since that time. If a complaint
regarding smoking in the outdoor dining areas is made, the Police
Department will respond, issue a “warning,” and “educate” the
individual regarding the law. The Police Department rarely gets
complaints of smoking in outdoor dining areas and cannot recall
that a citation has ever been issued, as the warnings have been
very effective.
ii. Parks. If patrons are observed smoking in the parks, they are
advised by Park Patrol of the no smoking regulations and required
to put out cigarettes. There is also signage in the parks. To date,
no citations have been issued for smoking in the park; however,
Park Patrol has issued approximately 10 warnings per month over
the last two months.
iii. Workplace. The Police Department is responsible for enforcing the
smoking in the workplace laws set forth in Labor Code §6404.5.
They rarely get complaints of workplace smoking, such as in
restaurants and bars (except for the occasional complaint received
by members of fraternal organizations, i.e. American Legion, Elks,
etc.). When complaints are received, it is handled in the same
manner as for outdoor dining areas — issue a warning and
educate. They do not recall that a citation has ever been issued.
City Council Members’ Comments at 03/24/14 Meeting: One Council
Member indicated that private enforcement was ideal, as they did not want it
to be a significant burden on City resources; however, they also did not want
to turn people away when the City’s assistance is needed. They requested
additional information regarding private enforcement, as well as what other
cities are doing that are enforcing the regulations through both City and
private enforcement (discussed above). Another Council Member liked the
way enforcement is handled in Santa Monica (city enforcement for signage City of Culver City, California
Agenda Item Report
issues and private enforcement for smoking complaints). A third Council
Member indicated that their primary concern in adopting regulations is
enforcement, and they are not inclined to put the City in a position where it is
the enforcer of these regulations. This Council Member also wanted
additional information on how current enforcement is handled for the other
smoking laws in Culver City, which was addressed at the meeting (and
discussed further above). Other Council Members did not address this issue.
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. Outreach would likely include, but not be limited to,
multiple notifications and meetings with effected property owners and HOAs.
Many of the Comparison Cities have resources and materials from their outreach
and education programs that may be helpful to Culver City if the City Council
determines to move forward with the adoption of an ordinance.
Staff recommends the City Council consider the above policy issues and provide
direction to staff as deemed appropriate.
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 City of Culver City, California
Agenda Item Report
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 less 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. Written Public Comments received on or after the March 24, 2013 City
Council meeting
3. Additional Public Comments received during Survey process and from
telephone calls
4. Smoke-Free Policy Survey for Multi-Unit Housing
5. County of Los Angeles Public Health Tobacco Control and Prevention
Program Matrix of Non-Smoking Multi-Unit Housing Ordinances in Los
Angeles County
6. Non-Smoking Multi-Unit Housing Ordinance Checklist
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, ChangeLab Solutions, www.changelabsolutions.org (formerly Public Health
Law & Policy Technical Assistance Legal Center). ChangeLab Solutions (CLS) is a non-partisan, neutral organization
(not a lobbying organization) funded by Prop 99 (one of the cigarette taxes) and comprised of legal experts in the area of
smoking laws. Part of the Prop 99 money is specifically earmarked toward legal assistance for local communities in
addressing smoking and tobacco control issues, which is how/why CLS was created. |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
ATTACHMENT 6
37
SMOKE-FREE MULTI-UNIT HOUSING ORDINANCE CHECKLIST
Type of Multi-Unit Housing Regulated: (Staff Report, p. 6; Ordinance, p. 4)
? All types of property containing 2 or more units
? Except hotels and motels
? Except mobile home parks
? Except single-family homes with an in-law or second unit
? Except condominiums and townhomes
? Except _______________________________________
Locations Where Smoking is Prohibited:
? Common Areas (Staff Report, p. 9; Ordinance, p. 3)
? Indoor common areas
? Outdoor common areas
? Except for designated “smoking areas” that meet certain criteria
? Individual Balconies and Patios (Staff Report, p. 10; Ordinance, pp. 5-6)
? Outdoor Smoke-free Buffer Zones (Staff Report, p. 10; Ordinance, pp. 7-8)
? Anywhere on the property of the multi-unit housing complex, including
balconies or patios within 25 feet of an enclosed area where smoking is
prohibited (i.e. a non-smoking unit)
? On neighboring property within 25 feet of an enclosed area where
smoking is prohibited
? On the balcony, patio, or deck of any unit, including smoking-allowed units
? New Units (Staff Report, p. 7; Ordinance; pp. 4 & 8)
? 100% of all new units in all types of regulated multi-unit housing are
nonsmoking units
OR
? Allow a builder to designated up to _____% of units as smoking allowed
? Existing Units (Staff Report, p. 7-8; Ordinance, pp. 4 & 8-10)
? 100% of existing units
OR
? Allow a landlord or homeowners’ association board to designate up to
_____% of existing units as smoking-allowed
? Require non-smoking units be grouped together and physically separated
from units where smoking may be allowed
? Phase-in Plan over ______ months (i.e. 12, 15, etc.)
Definition of Smoke: (Staff Report, pp. 8-9; Ordinance, pp. 5 & 14-15)
? Exclude E-cigarettes from definition of smoke
? Exempt medical marijuana from regulations
Enforcement: (Staff Report, pp. 11-14; Ordinance, pp. 15-17)
? City enforcement
? Private enforcement
? Declare secondhand smoke a nuisance