City of Culver City, California
Agenda Item Report
RECOMMENDATION:
Staff recommends the City Council discuss regulating smoking in multi-unit housing
and provide direction to staff as deemed appropriate.
BACKGROUND:
Over the past several months, at prior City Council meetings and through
correspondence with 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.
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 and discussed later in the staff
report.
Meeting Date: 08/26/13 Item Number: A-2
CITY COUNCIL AGENDA ITEM: Discussion of Regulating Smoking in Multi-Unit
Housing and Direction to Staff.
Contact Person/Dept.:
Heather Baker/City Attorney
Martin Cole/City Manager
Phone Number:
(310) 253-5660
(310) 253-6000
Fiscal Impact: Yes [] No [X] General Fund: Yes [] No [X]
Public Hearing: [] Action Item: [X] Attachments: [X]
Public Notification: Notice Published in the Culver City News (08/22/13); Meetings and
Agendas – City Council (08/15/13 and 08/20/13); County of Los Angeles Department of
Health Services, Culver City Chamber of Commerce, Downtown Business Association
(08/20/13); Coalition for Smoke-Free Living in Culver City 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) (08/15/13);
USPS – Courtesy Notice Mailed to 57 Homeowners Associations (08/20/13).
Department Approval:
Carol Schwab (by H. Baker) (08/20/13)
City Attorney Approval:
Carol Schwab (by H. Baker) (08/20/13)
Chief Financial Officer Approval:
Jeff Muir (08/20/13)
City Manager Approval:
John Nachbar (08/20/13) 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.
City of Culver City, California
Agenda Item Report
In this case, as stated in the attached Model California Ordinance Regulating
Smoking in Multi-Unit Residences|1010| (Attachment 1), 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, 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
to 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.
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.
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.
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 City of Culver City, California
Agenda Item Report
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.
ii. 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).
2. Locations Where Smoking is Prohibited: There are various options for
prohibiting smoking in certain locations.
a. 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.).
b. 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
c. 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.
d. 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, including Baldwin Park, Calabasas,
Huntington Park and South Pasadena.
e. 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.
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 the public with a right of
private civil action).
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, civil action, if the
City Council so determines. In the event the City would need to take
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.
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 City of Culver City, California
Agenda Item Report
do so. There are other sections in the CCMC (specifically, the view
preservation provisions) that are limited solely to enforcement by the
private parties involved.
c. 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.
4. Penalties: If the City Council determines to provide for City enforcement of non-
smoking multi-unit housing regulations, if adopted, 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.
5. Outreach and Education: If the City Council directs staff to return with a
proposed ordinance adopting non-smoking multi-unit housing regulations, staff
will also return with a proposed program for providing outreach to and educating
landlords, tenants and condominium associations.
Other procedural items would need to be included in any adopted regulations, which
will be provided in a proposed ordinance, should the City Council direct staff to move
forward.
Information Provided by the California Apartment Association
In response to the public notice sent on this agenda item, the City Attorney’s Office
received a phone call from the California Apartment Association (“CAA”) offering
their assistance in this process. 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 (Attachment 3). The
CAA also indicated that if the City Council decides to move forward with such
regulations, it would work cooperatively with the City to ensure a policy is adopted
that works for all parties involved.
City Council should 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 this evening. If an ordinance were
to be eventually 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 prepare and disseminate
information about the newly adopted regulations. These costs cannot be easily
quantified.
ATTACHMENTS:
1. Model California Ordinance Regulating Smoking in Multi-Unit Residences
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. California Apartment Association’s Policy Statement 12: Smoke-Free
Housing Choice and White Paper
MOTIONS:
That the City Council:
Discuss 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 |1010| This model ordinance was issued by the Public Health Law & Policy, Technical Assistance Legal Center, in April
2005 and revised in December 2009.
MEETING DATE: 8126/13
AGENDA ITEM:
Discussion of Regulating Smoking in Multi-Unit Housing
and Direction to Staff.
ATTACHMENTS
Pages
1. Model California Ordinance Regulating Smoking in Multi-Unit
Residences
2. County of Los Angeles Public Health Tobacco Control and Prevention
Program Matrix of Non-Smoking Multi-Unit Housing Ordinances in Los
Angeles County
1-35
36-37
3. California Apartment Association's Policy Statement 12: Smoke-Free 38-44
Housing Choice and White Paper Smokefree Housing
Ordinance
A Model California Ordinance
Regulating Smoking in
Multi-Unit Residences
(with Annotations)
Revised December 2009
(Originally issued April 2005)
Developed by the Technical Assistance Legal Center (TALC),
a project of Public Health Law & Policy.
This material was made possible by funds received from the
California Department of Public Health, under contract #09-11182.
Public Health Law & Policy is a nonprofit organization that provides legal information on matters
relating to public health. The legal information provided in this document does not constitute legal
advice or legal representation. For legal advice, readers should consult a lawyer in their state.
www.plilpriet.org talcOphip iet.org - (510) 302-3380 Smokefk. ee Housing UI Ice
April 2010
By creating nonsmoking living environments in multi-unit residences such as apartments,
condominiums, senior housing, and single resident occupancy hotels, communities can provide
an opportunity for everyone to live smokefree — even people who can't afford to live in a single-
family home. A number of cities and counties throughout California already have adopted local
laws to protect people living in multi-unit residences from their neighbors' drifting tobacco
smoke.'
The Technical Assistance Legal Center (TALC) developed this Model Ordinance to help
California communities limit secondhand smoke exposure in multi-unit residences. The Model
Ordinance includes provisions to restrict smoking in common areas (indoors and outdoors),
create smokefree buffer zones, and prohibit smoking in individual units. This Model Ordinance
is very broad and can be used to limit smoking in all types of multi-unit dwellings — from hotels
to long-term health care facilities — as well as apartments and condominiums.
Your community may choose to include some or all of the options offered in the Model
Ordinance, depending on your jurisdiction's policy objectives. To help your community make
policy choices, TALC created a Smokefree Housing Ordinance Checklist that highlights key
policy options contained in the Model Ordinance.
• If you have questions about this ordinance or would like assistance adapting it for your
community, contact TALC at (510) 302-3380 or submit your question via our website at
www.phIpnet.org/tobaccoquestions.
Developed by the Technical Assistance Legal Center (TALC), a project of Public Health Law & Policy (PHLP). This material
was made possible by funds received from the California Department of Public Health, under eon -ft-act #09-11182.
PHLP is a nonprofit organization that proides legal information on matters relating to public health. The legal information
provided in this document does not constitute legal advice or legal representation. For legal advice, readers should consult a
lawyer in their state.
www.phipnet.org talc(ii:phIpnet.org - (510) 302-3380 Introduction
The Technical Assistance Legal Center (TALC) developed this Model Ordinance to help California
cities and counties limit exposure to secondhand smoke in multi-unit residences such as apartment
buildings, condominium complexes, senior housing, and single resident occupancy hotels. By creating
nonsmoking living environments in multi-unit residences, communities can provide an opportunity
for everyone to live smokefree — even people who can't afford to live in a single-family home.
The Ordinance's comprehensive design limits exposure to secondhand smoke by restricting smoking
in common areas (indoors and outdoors), creating smokefree buffer zones, and prohibiting smoking in
individual units. Communities may choose to include some or all of the options offered in the Model
Ordinance, depending on the jurisdictions' policy objectives. TALC can help adapt this Model
Ordinance to meet an individual community's needs.
To assist cities and counties in creating smokefree multi-unit housing, this Model Ordinance includes:
8 Extensive findings based on the latest scientific information documenting the health risks
associated with tobacco use and exposure to secondhand smoke;
• Restrictions on smoking in the indoor and outdoor common areas of all types of multi-unit
residences, with the option to create designated outdoor smoking areas that meet specific
criteria;
• Smokefree buffer zones that can expand to include neighboring property and/or balconies
and patios of adjacent units to limit drifting secondhand smoke from entering nonsmoking
areas;
• Prohibitions on smoking inside the units of multi-unit residences, including apartments
and condominiums;
• Recommended procedures for designating nonsmoking units by landlords and
homeowners' associations; and
• Robust enforcement mechanisms including no-smoking lease terms and options for
private individuals and organizations to enforce the smokefree housing provisions.
This Model Ordinance is very broad and can be used to limit smoking in all types of multi-unit
dwelling places — from hotels to long-term health care facilities — as well as apartments and
condominiums. Some of the comments in the Model Ordinance describe how to narrow the scope of
the smoking restrictions, should that be necessary.
In addition, this Model Ordinance provides a step-by-step approach to designating nonsmoking units,
including a recommended implementation process that allows tenants and landlords to become
familiar with the new smoking restrictions over a I2-month period. Implementing a smokefree
housing law by using a reasonable phase-in period followed by a certain date on which everyone is
required to abide by the law is generally perceived to be the most fair and effective approach —
balancing public health needs against the potential inconvenience the ordinance puts on tenants who
smoke and landlords who must implement the new policy.
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 2
Technical Assistance Legal Center—revised December 2009 Please note: while this Ordinance is not written specifically for communities with rent control laws,
there are no legal restrictions that would prevent those cities from adopting a smokefree housing law.
However, it is highly recommended that in such jurisdictions the city attorney and rent control board
be included in selecting and adopting the specific provisions for a smokefree housing law.
This Model Ordinance offers a variety of options. In some instances, blanks (e.g., I
I ) prompt
you to customize the language to fit your community's needs. In other cases, the ordinance offers you
a choice of options (e.g., [ choice one / choice two
j).
Some of the ordinance options are followed by
a comment that describes the legal provisions in more detail. Some degree of customization is always
necessary in order to make sure that the ordinance is consistent with a community's existing laws.
Your city attorney or county counsel will likely be the best person to check this for you.
TALC has also developed other ordinances to create srnokefree outdoor areas, such as parks, beaches,
dining patios, and public events. If you would like to adopt a comprehensive or more customized
approach, some aspects of other TALC ordinances can be combined with this ordinance. If you have
questions about how to adapt this or other TALC ordinances for your community, please contact
TALC for assistance at (510) 302-3380 or submit your question via our website at
www.phIpnetorg/tobaccoquestions.
Lk
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 3
Technical Assistance Legal Center—revised December 2009 Findings
Findings document the problem a law was drafted to solve. This section contains an extensive
list of statements, based on the latest scientific research, describing the health risks associated
with tobacco use and secondhand smoke exposure. (pages 4-8)
Section 1: Definitions
This section contains specific definitions of key words and phrases used in the Model Ordinance.
When these words appear later in the text of the Ordinance, they are capitalized to signal they
have been specially defined. (pages 8-13)
Section 2: No Smoking in Common Areas, Except in Designated Smoking Areas
This section creates smokefree common areas (indoors and outdoors) for all types of multi-unit
housing containing two or more units, including, for example, apartments, condominiums, long-
term health care facilities, single room occupancy hotels (SR0s), and motels. No Smoking signs
most be posted in the common areas. A landlord or homeowners' association may designate an
outdoor smoking area for the multi-unit housing complex as long as it meets specific criteria.
To allow smoking in some types of multi-unit housing common areas, the defined term "Multi-
Unit Residences" can be modified to limit the types of multi-unit dwellings it includes, and thus
exclude some common areas from the smoking restrictions. (pages 13-14)
Section 3: Smokefree Buffer Zones
Buffer zones are designed to protect tenants from smoke drifting into their units from adjacent
areas — a common complaint of people living in multi-unit residences. This section creates
smokefree zones around indoor areas (units and common areas) by prohibiting smoking within
25 feet of doorways, windows, and other openings into indoor nonsmoking areas. This section
also prohibits smoking on balconies, patios, and decks within 25 feet of a nonsmoking unit.
Sraokefree buffer zones can be expanded to include the entire area of balconies, decks, and
patios, even when smoking would otherwise be allowed there. The smokefree buffer zones can
also be enlarged to include neighboring property. (pages 14-15)
Section 4: No Smoking in New Units
This section recommends restricting smoking in 100% of new units of multi-unit housing. New
units are those built nine months after the ordinance is adopted. This would include, for example,
all new units or rooms in apartments, condominiums, long-W.(1n health care facilities, single
room occupancy hotels (SR0s), and motels constructed nine months after the ordinance is
passed.
Because the percentage of nonsmoking units is a policy choice, optional language is provided to
require a lesser percentage of nonsmoking units, for example 90%, and allow smoking in the
remaining portion of units. In addition, to allow smoking in the new units of certain types of
multi-unit housing, the defined term "Multi-Unit Residences" can be modified to limit the kinds
of multi-unit dwellings included, and thus exclude some new units from the smoking restrictions.
(pages 15-16)
Smakefree Housing Ordinance Summary — Page 2
Technical Assistance Legal Center — April 2010 Section 5: No Smoking in Existing Units (Condominiums)
This section recommends restricting smoking in all existing units of condominium complexes
and other owner-occupied multi-unit housing developments (as defined in the ordinance by the
term "Common Interest Complex"). This section also describes a process whereby homeowners'
associations may vote to allow smoking in some of the units of their condominium complexes.
If a community does not feel ready to restrict smoking in condominium units, then this section
may be deleted. (pages 16-17)
Section 6: No Smoking in Existing Units (Apartments)
This section recommends restricting smoking in all existing units of apartment buildings and
other renter-occupied multi-unit housing complexes (as defined in the ordinance by the term
"Rental Complex"). It describes a step-by-step process landlords or property management firms
can follow to designate a certain percentage of units as smoking-allowed.
This section also recommends a 12-month implementation timeline to allow tenants and
landlords to become familiar with the new smoking restrictions over time. A reasonable phase-in
period leading up to a date on which everyone is required to abide by the law is generally
perceived to be the most fair and effective approach to implementing a smokefree housing law —
balancing public health needs against the potential inconvenience the ordinance puts on tenants
who smoke and landlords who are implementing the new policy. (pages 17-20)
Section 7: No-Smoking Lease Terms
This section requires landlords to include smoking restrictions in lease agreements — for
example, a provision stating that it is a violation of the lease to smoke in a nonsmoking unit or
smokefree common area. Landlords and property management firms must include these new no-
smoking terms as soon as possible, given existing legal requirements in amending leases. This
section also allows the landlord as well as other tenants living in the complex to enforce the no-
smoking lease terms against a violating tenant. (pages 20-23)
Section 8: Disclosure
This section requires a landlord who has designated smoking-allowed units to disclose this to
prospective renters by providing a map or diagram that describes where nonsmoking units and
designated smoking-allowed units are located. If there are no smoking-allowed units in the
complex, then the landlord has nothing to disclose and no obligation to comply with this section.
(page 23)
Section 9: Smoking Prohibitions
This section states when each of the smoking prohibitions goes into effect. Specifically, smoking
is not allowed in common areas or new units of multi-unit housing once the ordinance is
adopted, and smoking is not allowed in designated nonsmoking units of existing condominiums
and apartments one year after the ordinance is adopted. (pages 23-24)
Spookefree Housing Ordinance Summary — Page 3
Technical Assistance Legal Center — April 2010 Section 10: Reporting Requirement
This section requires that a diagram describing the locations of the smoking-allowed and
nonsmoking units be submitted to a specified government department. If there are no designated
smoking-allowed units, then there is no reporting requirement.
Because the number of multi-unit complexes in a community may vary greatly, and local
government may have limited capacity to integrate this reporting requirement into its
administrative systems, this section may be deleted if deemed overly burdensome. (page 24)
Section 11: Nuisance Designation and Medical Marijuana Exemption
This section designates drifting tobacco smoke as a nuisance anywhere in the city or county, not
just in multi-unit residences. By declaring secondhand smoke a nuisance, the ordinance allows
affected parties to more easily seek monetary damages or a court order to stop the nuisance
activity. Optional language allows this declaration to be limited to drifting tobacco smoke in a
residential context.
This section also includes an exemption that allows the smoking of medical marijuana in multi-
unit housing. This is a policy choice, and depending on the community, this subsection may be
deleted. (page 25)
Section 12: Penalties and Enforcement
This section provides several methods for local government to enforce the ordinance, including
civil fines, citations by law enforcement, and injunctive relief (a court order to do or stop doing
something). It also specifies the monetary fines that may be imposed for violations of the
ordinance. (pages 25-28)
Section 13: Private Citizen Enforcement
This section allows a tenant or a landlord to enforce the ordinance through a lawsuit. It also gives
a private citizen who does not live in the multi-unit housing complex the right to bring a lawsuit
to enforce this ordinance solely on behalf of the general public. (pages 28-30)
For a comprehensive list of smokefree housing policies, see The Center for Tobacco Policy and Organizing. Matrix
of Local Smokefree Housing Policies. Available at; www.center4tobaccopolicy.org/localpolicies-smokefreehousing.
Sinokefree Housing Ordinance Summary — Page 4
Technical Assistance Legal Center — April 2010 AN ORDINANCE OF THE [ CITY / COUNTY OF I PROHIBITING SMOKING IN
AND AROUND MULTI-UNIT RESIDENCES AND AMENDING THE f ]
MUNICIPAL CODE
The [ City Council / County Board of Supervisors ] of the [ City / County of ] does ordain as
follows:
SECTION 1. FINDINGS.
The [ City Council / County Board of Supervisors ] of [
follows:
] hereby finds and declares as
WHEREAS, tobacco use causes death and disease and continues to be an urgent public health
threat, as evidenced by the following:
• Tobacco-related illness is the leading cause of preventable death in the United States, 1
accounting for about 443,000 deaths each year; 2 and
• Scientific studies have concluded that tobacco use can cause chronic lung disease,
coronary heart disease, and stroke, in addition to cancer of the lungs, larynx, esophagus,
and mouth; 3 and
• Some of the most common types of cancers, including stomach, liver, uterine cervix, and
kidney cancers, are related to tobacco use; 4 and
WHEREAS, secondhand smoke has been repeatedly identified as a health hazard, as evidenced by
the following:
• The U.S. Surgeon General concluded that there is no risk-free level of exposure to
secondhand smoke; 5 and
• The California Air Resources Board placed secondhand smoke in the same category as the
most toxic automotive and industrial air pollutants by categorizing it as a toxic air
contaminant for which there is no safe level of exposure; 6 and
US Department of Health and Human Services, Centers for Disease Control and Prevention. Targeting Tobacco Use:
The Nation's Leading Cause of Preventable Death. 2008, p. 2. Available at:
www.cdc.govinccdphp/publicatiorts/aag/pdf/osh.pdf.
2 US Department of Health and Human Services, Centers for Disease Control and Prevention. "Smoking-Attributable
Mortality, Years of Potential Life Lost, and Productivity Losses — United States, 2000-2004." Morbidity and Mortality
Weekly Report, 57(45): 1226-1228, 2008. Available at: wwvv.cdc,2ovinanwriprevievv/mmwrhtml/mm5745a3.htm.
3 US Department of Health and Human Services, Centers for Disease Control and Prevention. Targeting Tobacco Use:
The Nation's Leading Cause of Preventable Death. 2008, p. 2. Available at:
www.cdc.govincedphp/publicationsiaacZpdf/osh.pdf.
4 Leistikow B, Zubair K, et al. "Male Tobacco Smoke Load and Non-Lung Cancer Mortality Associations in
Massachusetts." BMC Cancer, 8:341, 2008. Available at: viewbiornedcentral.com/1471-2407/8/341.
5 US Department of Health and Human Services, Office of the Surgeon General. The Health Consequences of Involuntary
Exposure to Tobacco Smoke: A Report of the Surgeon General. 2007. Report highlights available at:
www.suraeongeneral.govilibrary/secondhandsmoke/factsheets/factsheet7.html.
6 Resolution 06-01, Cal. Air Resources Bd. (2006) at 5. Available at: www.arb.ca.gov/regactiets2006ires0601.pdf; See
California Environmental Protection Agency, Air Resources Board. News Release, California Identifies Secondhand
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 4
Technical Assistance Legal Center—revised December 2009 G The California Environmental Protection Agency included secondhand smoke on the
Proposition 65 list of chemicals known to the state of California to cause cancer, birth
defects, and other reproductive harrn; 7 and
WHEREAS, exposure to secondhand smoke causes death and disease, as evidenced by the following:
O Secondhand smoke is responsible for as many as 73,000 deaths among nonsmokers each
year in the United States; 8 and
• Exposure to secondhand smoke increases the risk of coronary heart disease by
approximately thirty percent; 9 and
O Secondhand smoke exposure causes lower respiratory tract infections, such as pneumonia
and bronchitis in as many as 300,000 children in the United States under the age of 18
months each year; 1° and exacerbates childhood asthma;' and
WHEREAS, the U.S. Food and Drug Administration conducted laboratory analysis of electronic
cigarette samples and found they contained carcinogens and toxic chemicals to which users and
bystanders could potentially be exposed; 12 and •
WHEREAS, tobacco use and exposure to secondhand smoke impose great economic costs, as
evidenced by the following:
• The total annual economic burden of smoking in the United States is $193 billion; 13 and
• From 2001-2004, the average annual health care expenditures attributable to smoking
were approximately $96 billion; T4 and
• The medical and other costs to nonsmokers due to exposure to secondhand smoke were
estimated at over $10 billion per year in the United States in 2005; 15 and
• Smoke as a "Toxic Air Contaminant." Jan. 26, 2006. Available at: www.arlica.gov/newsrel/nr012606.httn.
7 California Environmental Protection Agency, Office of Environmental Health Hazard Assessment. Chemicals Known to
the State to Cause Cancer or Reproductive Toxicity. 2006, p. 8 & 17. Available at:
www.oehlia.ca.gov/prop65/prop65_list/files/P65sinale081106.pdf.
US Department of Health and Human Services, Centers for Disease Control and Prevention. Fact Sheet — Secondhand
Smoke. 2006. Available at: "
www.cdc.gov/tobacco/data statistics/fact sheets/secondhand smoke/general_facts/index.htm.
9 Barnoya, 5 and Glantz, S. "Cardiovascular Effects of Secondhand Smoke: Nearly as Large as Smoking." Circulation,
111: 2684-2698, 2005. Available at: www.circ.abajournals.org/cgi/content/ful1/111/20/2684.
i° US Department of Health and Human Services, Centers for Disease Control and Prevention. Targeting Tobacco Use:
The Nation's Leading Cause of Preventable Death. 2008, p. 2. Available at:
www.cdc.imv/nccdpbp/publications/aagipdfosh.pdf.
' 1 US Department of Health and Human Services, Centers for Disease Control and Prevention. Fact Sheet — Secondhand
Smoke. 2006. Available at:
www.cdc.gov/tobacco/data statisties/fact_sheets/secondhand smokeAteneral_facts/index.htin.
12 US Food and Drug Administration. News Release, FDA and Public Health Experts Warn About Electronic Cigarettes.
2009. Available at: www.fda.gov/NewsEvents/Newsroom/PressAnnouncernents/ucm173222.htm.
13 Centers for Disease Control and Prevention. News Release, Slightly Lower Adult Sinoking Rates. 2008. Available at:
wwv-Lcdc.govItnedialpressrel/2008/r081113.htm.
14 Centers for Disease Control and Prevention. News Release, Slightly Lower Adult Smoking Rates. 2008. Available at:
www.cdc.gov/media/pressre1/2008/r081113.htm.
15
Behan DF, Eriksen MP and Lin, Y. Economic Effects of Environmental Tobacco Smoke. Schaumburg, IL: Society of
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 5
Technical Assistance Legal Center—revised December 2009 • The total annual cost of smoking in California was estimated at $475 per resident or
$3,331 per smoker per year, for a total of nearly $15.8 billion in smoking-related costs in
1999 alone; 16 and
6 California's Tobacco Control Program saved the state and its residents $86 billion in
health care expenditures between the year of its inception, 1989, and 2004, with savings
growing yearly," and
WHEREAS, smoking is the primary cause of fire-related injuries and deaths in the home, as
evidenced by the following:
• Cigarettes, cigars, pipes and other smoking materials are the leading cause of fire deaths
in the United States, 18 causing an estimated 142,900 smoking-related fires, 780 deaths,
1,600 injuries, and $606 million in direct property damage in 2006; 19 and
• One in four fatalities from home fires caused by smoking is NOT the smoker whose
cigarette started the fire, and 25% of those deaths were of neighbors or friends of the
smoker; 2° and
• Smoking in a residence where long-term oxygen therapy takes place is very dangerous as
oxygen is a fire accelerant, and 27% of fatalities due to smoking during long-term oxygen
therapy occurred in multifamily dwellings; 21 and
• The United States Fire Administration recommends that people smoke outdoors; 22 and
WHEREAS, nonsmokers who live in multi-unit dwellings can be exposed to neighbors'
secondhand smoke, as evidenced by the following:
• Secondhand smoke can seep under doorways and through wall cracks; 23 an
Actuaries, 2005, p. 2. Available at: www.soa.org/files/pdf/ETSReportFinalDraft(Final%203).pdf.
16 Max W, Rice DP, Zharig X, et al. The Cost of Smoking in California, 1999. Sacramento, CA: Tobacco Control Section,
California Department of Health Services, 2002, p. 74. Available at:
http://repositories.cdlib.org/egi/viewcontentegi?article=1026&context=ctcre.
17 Lightwood JIM, Dinno A and Glantz SA. "Effect of the California Tobacco Control Program on Personal Health Care
Expenditures." PLoS Med, 5(8): e178, 2008. Available at:
www.plosmedieine.orgiarticle/info:doi/10.I371/joumal.pmed.0050178.
ls Leistikow B, Martin DC and Milano CE. "Fire Injuries, Disasters, and Costs from Cigarettes and Cigarette Lights: A
Global Overview." Preventive Medicine, 31: 91-99, 2000. Available at: http://leistikow.ucdavis.edu/SmokingFires.pdf.
19 Hall JR. U.S. Smoking-Material Fire Problem. Quincy, MA: National Fire Protection Association, 2008, p. vii.
Available at: www.nfpa.org/assets/filfes//PDF/OS.Smoking.pdf . (Factsheet available at:
www.nfpa.orglassets/files//PDF/smokingfactsheet.pdf.)
2C Hall JR, Ahrens M, Rohr K, et al. Behavioral Mitigation of Smoking Fires Through Strategies Based on Statistical
Analysis. US Department of Homeland Security, 2006, p. 17. Available at:
w-ww.usfa.dhs.gov/downloads/pdfpublicationsifa-302-508.pdf
21 US Department of Health and Human Services, Centers for Disease Control and Prevention. "Fatal Fires Associated
with Smoking During Long-Term Oxygen Therapy — Maine, Massachusetts, New Hampshire, and Oklahoma, 2000 —
2007" . Morbidity and Mortality Weekly Report, 57(31): 852-854, 2008. Available at:
www.cdc.gov/rtunwr/preview/rnmwrhtm1/ram5731a3.htm?s cid=mm573 I a3e.
22 Hall JR, Ahrens M, Rohr K, et al. Behavioral Mitigation of Smoking Fires Through Strategies Based on Statistical
Analysis. US Department of Homeland Security, 2006, p. 19. Available at:
www.usfa.dhs.govidownloads/pdf/publicatiorts/fa-302-508.pdf
23 Wagner J, Sullivan DP, Faulkner D, et al. "Environmental Tobacco Smoke Leakage from Smoking Rooms." Journal of
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 6
Technical Assistance Legal Center—revised December 2009 • Persons living in apartments near smokers can be exposed to elevated pollution levels for
24 hours a day, and at times, the particulate matter exposure can exceed the U.S.
Environmental Protection Agency's 24-Hour Health Based Standard; 24 and
• The Surgeon General has concluded that eliminating smoking in indoor spaces is the only
way to fully protect nonsmokers from secondhand smoke exposure and that separating
smokers from nonsmokers, cleaning the air, and ventilating buildings cannot completely
prevent secondhand smoke exposure; 25 and
WHEREAS, most Californians do not smoke and a majority favor limitations on smoking in
multi-unit residences, as evidenced by the following:
• Nearly 87% of Californians and 91% of California women are nonsmokers; 26 and
• 74% of Californians surveyed approve of apartment complexes requiring at least half of
rental units be nonsmoking; 27 and
• 69% of Californians surveyed favor limiting smoking in outdoor common areas of
apartment buildings and 78 0 /0 support laws that create nonsmoking units; 25 and
• 62% of California renters feel that there is a need for laws to limit smoking in
apartments; 29 and
WHEREAS, a local ordinance that authorizes residential rental agreements to include a
prohibition on smoking of tobacco products within rental units is not prohibited by California law; 3°
and
WHEREAS, there is no Constitutional right to smoke; 31 and
Occupational and Environmental Hygiene, 1: 110-118, 2004. Available at: http://eetd.lbl.gov/IEP/pdf/LBNL.51010.pdf.
24 Klepeis N. Measuring the Seepage of Tobacco Smoke Particles Between Apartment Units. California's Clean Air
Project, 2008. Available at: http://ceap.etr.org/base/documents/Measuring_the_Seepage.pdf.
25 US Department of Health and Human Services, Office of the Surgeon General. The Health Consequences of
Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General. 2006,
P.
11. Available at:
www.cdc.gov/tobacco/data_statistics/sgr/sgr_2006/index.htm#full.
26 California Department of Health Services. News Release, New Data Show 91 Percent of California Women Don't
Smoke. 2007. Available at: wwvv.applications.dhs.ca.gov/pressreleases/store/PressReleases/07-
37%20dhs%20srnokine/020rates-with%20charts.html.
27 Goodwin Simon Victoria Research. Study of California Voters' Attitudes About Secondhand Smoke Exposure. 2008.
Available at: www.center4tobaccopolficy.org/_files/_files/Results%20of%20SHS%20Poll%20November%202008.pcif
(Statewide poll of 600 California voters, conducted November 2008).
28 Goodwin Simon Victoria Research. Study of California Voters' Attitudes About Secondhand Smoke Exposure. .2008.
Available at: www.eenter4tobaceopoliey.orgLffles/files/Results%20of%20SHS%20Poll%20November%202008.pdf
(Statewide poll of 600 California voters, conducted November 2008).
29 American Lung Association of California, Center for Tobacco Policy and Organizing. Statewide Apartment Renter
Study. 2004. Available at:
www.center4tobaccopolicy.org/Jiles/ Jiles/5242_Center%20Renter%20Survey%20Results%20May%202004.pdf (A
survey of apartment residents throughout California).
30
Cal. Legislative Counsel Op., 21547, Secondhand Smoke in Multi-Unit Housing (Apartments & Condos) Smoking Bans:
Residential Rental Property, (September 23, 1999). Highlights available at: ww -w.respect-
ala.org/drift_samsmokingbans.htm.
31
Public Health Law & Policy, Technical Assistance Legal Center. There Is No Constitutional Right to Smoke. 2005.
Available at: www.phipnet.org/tobacco-control.
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 7
Technical Assistance Legal Center—revised December 2009 WHEREAS, California law prohibits smoking in virtually all indoor places of employment
reflecting the state policy to protect against the dangers of exposure to secondhand smoke; 32 and
WHEREAS, California law declares that anything which is injurious to health or obstructs the
free use of property, so as to interfere with the comfortable enjoyment of life or property, is a
nuisance; 33 and
WHEREAS, local governments have broad latitude to declare nuisances and are not constrained
by prior definitions of nuisance;
34
and
NOW THEREFORE, it is the intent of the [ City Council / County Board of Supervisors ] in
enacting this ordinance, to provide for the public health, safety, and welfare by discouraging the
inherently dangerous behavior of smoking around non-tobacco users; by protecting children from
exposure to smoking where they live and play; and by protecting the public from nonconsensual
exposure to secondhand smoke in and around their homes.
.SECTION II. [ Article / Section ] of the [ City / County of
amended to read as follows:
] Municipal Code is hereby
See. [ (*1) ]. DEFINITIONS. For the purposes of this [ article / chapter ] the following
definitions shall govern unless the context clearly requires otherwise:
(a) "Adjacent Property" means any Unenclosed Area of property, publicly or privately owned,
that abuts a Multi-Unit Residence [ , but does not include property containing detached single-
family homes I , does not include property containing only residential structures ].
COMMENT: This definition is used to describe the reach of
nonsmoking "buffer zones" around Multi-Unit Residences. It
defines where Smoking is prohibited when buffer zones reach
beyond the property lines of the Multi-Unit Residence and extend
onto neighboring property (see Section *3 "Nonsmoking Buffer
Zones").
Four options are available, listed below from the strongest to the
weakest protections.
Option one—Include Everything: Include all adjoining property,
public and private, by omitting all bracketed language. With this
option, a smokeftee buffer zone might encompass a portion of
the backyard of a single-family residence.
Option two—Include Everything but Single-Family Homes:
Include all adjoining property, public and private, except single-
family residences by including only the single-underlined
language.
32 Cal. Lab. Code § 6404.5 (West 2009).
33 Cal. Civil Code § 3479 (West 2009).
34 Th Re Jones, 56 Cal.App.2d 658, 663 (1943); See also Cal. Const., art. XI, § 7 and Cal. Gov . Code § 38771 (West
2009).
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 8
Technical Assistance Legal Center—revised December 2009 Option three—Include Everything but Residential Property.
Include all adjoining property, public and private, except
residential property (e.g., single-family residences or Multi-Unit
Residences) by including only the double-underlined language.
This option still includes, for example, outdoor areas of
businesses, parking lots, and some places not open to the
general public such as members-only clubs
Option four—Exclude Everything: Do not include any adjoining
property in the buffer zones, in which case the entire definition
should be deleted.
(b) "Common Area" means every Enclosed Area or Unenclosed Area of a Multi-Unit Residence
that residents of more than one Unit of that Multi-Unit Residence are entitled to enter or use,
including, for example, halls and paths, lobbies and courtyards, elevators and stairs, community
rooms and playgrounds, gym facilities and swimming pools, parking garages and parking lots,
shared restrooms, shared laundry rooms, shared cooking areas, and shared eating areas.
COMMENT: Note that California Labor Code section 6404.5 (the
state smokefree workplace law) may already prohibit Smoking in
indoor Common Areas if the Multi-Unit Residence has
employees, such as maintenance workers, property managers,
or others who work on-site.
The definition of Common Areas does not include balconies,
patios, or decks associated with individual Units because these
are not shared areas. Balconies, patios, and decks are included
in the definition of Unit.
(c) "Common Interest Complex" means a Multi-Unit Residence that is a condominium
project, [ a community apartment project, [ a stock cooperative, ] [ or a planned development ]
as defined by California Civil Code section 1351.
COMMENT: This definition is used to distinguish owned multi-unit
housing (e.g., condominiums and townhomes) from other types
of Multi-Unit Residences, such as apartments that are leased,
which are defined in the term "Rental Complex" (see below). The
distinction between all types of Multi-Unit Residences and those
that are owned is necessary if a Community decides to regulate
smoking in less than 100% of existing Units in Multi-Unit
Residences (see Sections *5 and *6). This distinction is
necessary because of the logistical difficulty in determining which
owner-occupied Units should be nonsmoking and which should
allow Smoking.
The list of optional Common Interest Complexes includes other
types of housing that, like condominiums, have covenants,
conditions, and restrictions (CC&Rs) and are managed by a
homeowners' association.
(d) "Enclosed Area" means an area in which outside air cannot circulate freely to all parts of
the area, and includes an area that has:
(1) any type of overhead cover whether or not that cover includes vents or other openings and
at least [ three (3) ] walls or other vertical boundaries of any height whether or not those
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 9
Technical Assistance Legal Center—revised December 2.009 boundaries include vents or other openings; or
(2) [ four (4) ] walls or other vertical boundaries that exceed [ six (6) ] feet in height
whether or not those boundaries include vents or other openings.
COMMENT: The number of walls and the height threshold can be
customized to meet the needs of your community, and changing
these numbers will affect the scope of the ordinance. Reducing
the number of walls in this definition would broaden the definition
of Enclosed Area, which would result in narrowing the definition
of Unenclosed Area For the purposes of this ordinance, the
distinction between "enclosed" and "unenclosed" is primarily
relevant to establishing designated Smoking areas (see Section
*2) and nonsmoking buffer zones (see Section *3).
An area that is partially covered by anything would be analyzed
under subparagraph (I), whereas only areas that are totally
uncovered would be analyzed under subparagraph (2). It can be
difficult to apply Labor Code section 6404.5 to areas that are
surrounded by lattice, hedges, and other nonsolid structures. For
purposes of this ordinance any vertical boundary, regardless of
composition, constitutes an "other vertical boundary" for
application of this definition.
NOTE: If the Municipal Code already has Smoking restrictions, it
may contain a definition of "enclosed." Review the Code and make
any necessary modification to existing definitions and/or operative
provisions to ensure consistency with the new definition.
(e) "Landlord" means any Person who owns property let for residential use, any Person who
lets residential property, and any Person who manages such property, except that "Landlord" does
not include a master tenant who sublets a Unit as long as the master tenant sublets only a single
Unit of a Multi-Unit Residence.
COMMENT: The Municipal Code may already contain a definition
of "Landlord." If so, the definition provided here can be omitted,
although sublessors should specifically be excluded.
(f) "Multi-Unit Residence" means property containing two (2) or more Units [ , except the
following specifically excluded types of housing:
(1) a hotel or motel that meets the requirements set forth in California Civil Code section
1940(b)(2);
(2) a mobile home park;
(3) a campground;
(4) a marina or port;
(5) a single-family home;
(6) a single-family home with a detached or attached in-law or second unit when
permitted pursuant to California Government Code sections 65852.1, 65852.150, 65852.2 or
an ordinance of the [ City / County ] adopted pursuant to those sections; and
(7)
COMMENT: Because the definition of Unit in this ordinance is so
broad and includes all types of dwelling places—from rooms in a
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 10
Technical Assistance Legal Center—revised December 2009 hotel to tents at a campground—a community may want to limit
the types of dwelling places covered by the smokefree housing
ordinance. The optional language provides examples of the types
of exceptions that communities are likely to consider.
Note that the definition of Multi-Unit Residence without any
exemptions would include the following types of dwelling places:
apartments, condominium projects, townhomes, stock
cooperatives, and co-housing; affordable housing (for seniors, for
disabled tenants, for Section 8, etc.); long-term health care
fabilities, assisted living facilities, hospitals, and family support
facilities; hotels, motels, single room occupancy ("SRO")
facilities, dormitories, and homeless shelters; mobile home
parks, campgrounds, marinas, and ports; single-family homes
and single-family homes with an in-law unit.
(g) "New Unit" means a Unit that is issued a [ certificate of occupancy / final inspection ]
more than 180 days after [insert effective date of ordinance] [and also means a Unit that is let for
residential use for the first time more than 180 days after [insert effective date of ordinance]].
COMMENT: This definition is used to differentiate between Units
that are already built when the ordinance is adopted and Units
constructed afterward. The distinction is important because,
under this ordinance, all Units built after the ordinance is adopted
are required to be nonsmoking, whereas Smoking could be
allowed in some Units of existing multi-unit housing.
The definition incorporates a trigger date of 180 days after the
ordinance takes effect so as to 'grandfather' buildings already
under construction.
The certificate of occupancy or final inspection is probably the
most administrable way to distinguish between existing and New
Units. However, a community could distinguish between Units for
which land use entitlements have or have not issued or Units
which have or have not been occupied by a tenant for the first
time.
To include existing housing that may become available to the
rental market after the ordinance is adopted, such as an in-law
cottage that had previously never been rented, add the optional
clause at the end of the definition.
Note that the term "New Unit" is a subset of "Unit," so whenever
the term Unit is used in the ordinance, it includes all New Units.
(h) "Nonsmoking Area" means any Enclosed Area or Unenclosed Area of a Multi-Unit
Residence in which Smoking is prohibited by: (1) this [ chapter / article ] or other law; (2) by
binding agreement relating to the ownership, occupancy, or use of real property; or (3) by
designation of a Person with legal control over the area. In the case of a Smoking prohibition
established only by private agreement or designation and not by this [ chapter / article ] or other
law, it shall not be a violation of this [ chapter / article ] for a Person to engage in Smoking or to
allow Smoking in that area unless: (1) the Person knows that Smoking is not permitted; or (2) a
reasonable Person would know that Smoking is not permitted.
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page II
Technical Assistance Legal Center—revised December 2009 (i) "Person" means any natural person, partnership, cooperative association, corporation,
personal representative, receiver, trustee, assignee, or any other legal entity including government
agencies.
COMMENT: The Municipal Code may contain a definition of
"person"; review any existing definition of "person" in the
Municipal Code to determine whether to include this definition in
your ordinance.
This definition includes most businesses. In addition, it includes
the City and County.
(j) "Rental Complex" means a Multi-Unit Residence for which fifty percent (50%) or more of
Units are let by or on behalf of the same Landlord.
COMMENT: This definition is used to distinguish traditional rental
housing (e.g., apartments, SR0s) from other types of Multi-Unit
Residences, such as condominiums that are owner-occupied. The
distinction between all types of Multi-Unit Residences and those
that are leased is necessary if d community decides to regulate
smoking in less than 100% of existing Units in Multi-Unit
Residences (see Section *6). This distinction is necessary because
of the logistical difficulty in determining which owner-occupied Units
should be nonsmoking and which should allow Smoking.
(k) "Smoke" means the gases, particles, or vapors released into the air as a result of
combustion, electrical ignition or vaporization, when the apparent or usual purpose of the
combustion, electrical ignition or vaporization is human inhalation of the byproducts, except
when the combusting or vaporizing material contains no tobacco or nicotine and the purpose of
inhalation is solely olfactory, such as, for example, smoke from incense. The term "Smoke"
includes, but is not limited to, tobacco smoke, electronic cigarette vapors, marijuana smoke, and
crack cocaine smoke.
COMMENT: This is a special definition that is more limited than the
common understanding of what "smoke" is. For example, smoke
from a fireplace or a barbeque grill is not "Smoke" for the
purposes of this ordinance because the smoke generated by
those activities is not produced for the purpose of inhaling it. The
limitation placed on 'Smoke' by this definition is important to
avoid unintended consequences, such as inadvertently
prohibiting the burning of incense or use of barbeque grills.
This definition includes e-cigarettes. It also marijuana, but
Smoking marijuana for medical purposes can be excluded from
the prohibitions of this ordinance should a community decide to
include Section *11(b).
(1) "Smoking" means engaging in an act that generates Smoke, such as, for example:
possessing a lighted pipe, a lighted hookah pipe, a lighted cigar, an operating electronic cigarette
or a lighted cigarette of any kind; or lighting or igniting a pipe, a hookah pipe, a cigar, or a
cigarette of any kind.
COMMENT: This definition includes marijuana, but Smoking
marijuana for medical purposes can be excluded from the
prohibitions of this ordinance should a community decide to
include Section *11(b).
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 12
Technical Assistance Legal Center—revised December 2009 (m) "Unenclosed Area" means any area that is not an Enclosed Area.
(n) "Unit" means a persona] dwelling space, even where lacking cooking facilities or private
plumbing facilities, and includes any associated exclusive-use Enclosed Area or Unenclosed Area,
such as, for example, a private balcony, porch, deck, or patio. "Unit" includes without limitation:
an apartment; a condominium; a townhouse; a room in a long-term health care facility, assisted
living facility, or hospital; a hotel or motel room; a room in a single room occupancy ("SRO") -
facility; a room in a homeless shelter; a mobile home; a camper vehicle or tent; a single-family
home; and an in-law or second unit. Unit includes a New Unit.
COMMENT: This definition is intentionally extremely broad. It is
designed to capture all conceivable "dwelling spaces" as the
examples illustrate. However, because of the way that this model
ordinance is designed, any limitations on the types of housing
covered by the ordinance should be added to the defined term
"Multi-Unit Residence" and not here. For example, some "mobile
homes" in mobile home parks may be included in this definition
and even cited in the examples but, nevertheless, "mobile
homes" can be specifically excluded from the ordinance under
the definition of "Multi-Unit Residence."
Sec. (*2) ]. NO SMOKING PERMITTED IN COMMON AREAS EXCEPT IN
DESIGNATED SMOKING AREAS.
COMMENT: If your Municipal Code already has Smoking
restrictions, it may contain a provision for smokefree Common
Areas of multi-unithousing. Review the Code and make any
necessary modification to existing definitions and/or operative
provisions to ensure consistency with new ordinance language.
(a) Smoking is prohibited in all Common Areas pursuant to Section [ (*9)] except that a
Person with legal control over a Common Area, such as, for example, a Landlord or homeowners'
association, may designate a portion of the Common Area as a designated Smoking area provided
that at all times the designated Smoking area complies with paragraph (b) below.
(b) A designated Smoking area:
(1) Must be an Unenclosed Area.
(2) Must be located at least twenty-five (25) feet from any Enclosed Area that is a
Nonsmoking Area. A Person with legal control over a Common Area in which a designated
Smoking area has been designated shall modify, relocate or eliminate that designated Smoking
area so as to maintain compliance with the requirements of this subsection (b) as laws change,
as binding agreements are created, and as Nonsmoking Areas on neighboring property are
esta.blished.
COMMENT: This clause limits where a designated Smoking area
can be located in order to prevent drifting Smoke from entering
smokefree areas. As written, it includes areas on neighboring
property that are designated as nonsmoking by contract (e.g., a
smokefree lease term for a rental unit next to, but not part of, the
Multi-Unit Residence) and areas on neighboring property
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 13
Technical Assistance Legal Center—revised December 2009 designated by a property owner or lessee as nonsmoking (e.g., a
neighboring business or homeowner).
(3) Must be at least twenty-five (25) feet from Unenclosed Areas primarily used by
children and Unenclosed Areas with improvements that facilitate physical activity including,
for example, playgrounds, tennis courts, swimming pools, and school campuses.
(4) Must be no more than [ ten percent (10%) ] of the total Unenclosed Area of the Multi-
Unit Residence for which it is designated.
(5) Must have a clearly marked perimeter.
(6) Must be identified by conspicuous signs.
(c) No Person with legal control over a Common Area in which Smoking is prohibited by this
[ chapter / article 1 or other law shall knowingly permit the presence of ash trays, ash cans, or
other receptacles designed for or primarily used for disposal of Smoking waste within the area.
(d) Clear and unambiguous No Smoking" signs shall be posted in sufficient numbers and
locations to make Common Areas where Smoking is prohibited by this [ article / chapter
1
or other
law obvious to a reasonable person. The signs shall have letters of no less than one inch in height
or contain the international "No Smoking" symbol (consisting of a pictorial representation of a
burning cigarette enclosed in a red circle crossed by a red bar). Such signs shall be maintained by
the Person or Persons with legal control over the Common Areas. The absence of signs shall not
be a defense to a violation of any provision of this [ article / chapter ].
Sec. [ (*3) 1. NONSMOKING BUFFER ZONES.
(a) Smoking is prohibited in Unenclosed Areas of Multi-Unit Residence, including balconies,
porches, decks, and patios, within twenty-five (25) feet in any direction of any doorway, window,
opening, or other vent into an Enclosed Area that is a Nonsmoking Area.
COMMENT: This section addresses the problem of Smoking so
close to a "nonsmoking" area that Smoke easily drifts into it. This
restriction even applies to Smoking on exclusive-use balconies,
porches, decks, and patios of Units where Smoking would
otherwise be allowed, if these areas are within 25 feet of a
nonsmoking Unit. A community can make all exclusive-use
outdoor areas nonsmoking. To do so, include the optional
subsection (d) below.
[ (b) Smoking is prohibited in Unenclosed Areas of Adjacent Property within twenty-five (25)
feet in any direction of any doorway, window, opening, or other vent into an Enclosed Area that is
a Nonsmoking Area. ]
COMMENT: To create the most comprehensive smokefree buffer
zone, include this option. This subsection creates a smokefree
buffer zone that extends to Unenclosed Areas on neighboring
property that is within 25 feet of any doorway, window, etc., of the
Multi-Unit Residence. This comprehensive provision can be fine-
tuned by selecting a version of the "Adjacent Property" definition
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 14
Technical Assistance Legal Center—revised December 2009 to exempt certain types of neighboring property, such as property
containing detached single-family homes, while still prohibiting
Smoking on other private property, such as bar patios and
loading docks. If this option is not included in your community's
ordinance, the defined term "Adjacent Property" in Section *1
should be deleted.
(c) Subsections (a) and (b) above do not apply to a Person who is Smoking in the restricted
buffer zone area for less than a minute while actively passing on the way to another destination,
and who does not enter the buffer zone area while Smoking more than twice per day. ]
COMMENT: This optional exemption for a passerby who is
Smoking (e.g., Smoking while walking or driving by) is a common
component of entryway Smoking bans. However, such an
exemption could prove problematic in the multi-unit housing
context because a Person who is Smoking could claim to be just
passing through but in fact be intentionally violating the
ordinance. The timing restriction is an attempt to limit this
problem but does not eliminate it completely. Without this
exemption, a Person who is Smoking in a buffer zone while
passing through it will be in violation of the law.
(d) Notwithstanding any other provision of this [ article I chapter ], Smoking is prohibited in
all exclusive-use Unenclosed Areas associated with a Unit, such as, for example, a private
balcony, porch, deck, or patio. ]
COMMENT: This optional subsection prohibits Smoking in all
exclusive-use outdoor areas that are associated with a Unit even
if Smoking is permitted within the Unit (i.e., it is not a designated
nonsmoking Unit). By doing so, this subsection unambiguously
addresses the problem of Smoke drifting from the balcony or
patio of one Unit into a neighboring Unit, a top complaint from
residents living in mufti-family housing. On the other hand, it
might have the effect of leading people to increase their Smoking
in the Unit, despite public health and fire safety advice to only
engage in Smoking outside.
See. f (*4) 1. SMOKING RESTRICTIONS IN NEW UNITS OF MULTI-UNIT
RESIDENCES.
(a) All New Units of a Multi-Unit Residence are hereby designated nonsmoking Units,
including any associated exclusive-use Enclosed Areas or Unenclosed Areas, such as, for
example, a private balcony, porch, deck, or patio; and including without limitation New Units in a
Rental Complex and New Units in a Common Interest Complex.
(b) Smoking in a designated nonsmoking Unit is a violation of this [ chapter
J
as
provided in Section { (*9)
COMMENT: As written, this section applies to all New Units of a
Multi-Unit Residence. While the percentage of nonsmoking New
Units required is a policy choice and may be modified, 100%
nonsmoking Units is recommended. If your community chooses
to require a lesser percentage, substitute the following provision:
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 15
Technical Assistance Legal Center revised December 2009 (a) Up to one hundred percent (100%), but no less than [ ninety
percent (90%) of New Units of a Multi-Unit Residence,
including, for example, any associated exclusive-use Enclosed
Areas or Unenclosed Areas, such as a private balcony, porch,
deck, or patio, shall be permanently designated as nonsmoking
Units by the Person or Persons causing the construction of the
New Units.
(b) Smoking in a designated nonsmoking Unit shall be a violation
of this [ article / chapter ] as provided in Section f (9)].
(c) Designated nonsmoking Units shall not share a ventilation
system with a Unit in which Smoking may be allowed. To the
maximum extent practicable, nonsmoking Units shall be grouped
together vertically and horizontally and physically separated from
Units where Smoking may be allowed. Where possible, all units
where Smoking may be allowed shall be in a single building of a
multi-building Multi-Unit Residence.
(d) The designations required by subsection (a) above shall be
permanent; shall be submitted in accordance with Section [
(*10)]; and shall be submitted by the Person who controls the
Multi-Unit Residence in which the New Unit is located prior to any
sale or lease of a New Unit and before a New Unit is occupied.
The submitted designations must contain a description of each
designated nonsmoking Unit sufficient to identify the Unit and
must be accompanied by a diagram depicting the location of the
designated nonsmoking Units in relation to all other Units.
See. 1 (*5) ]. NONSMOKING DESIGNATIONS FOR EXISTING UNITS OF A
COMMON INTEREST COMPLEX.
COMMENT: This subsection prohibits Smoking inside all existing
Units in a Common Interest Complex, such as condominiums, but
provides an opportunity for the homeowners' association to hold an
election to allow Smoking in some of the existing Units. A potential
incentive for a Common Interest Complex to establish 100%
nonsmoking Units is that no action is required to set this standard.
Action is only required if the Common Interest Complex wishes to
"opt out" of the 100% default established in subsection (a).
If your community wants to prohibit Smoking in all existing Units
of Common Interest Complexes regardless of owner
preferences, omit subsection (c) and the reference to it in
subsection (a) ("provided, however, that a lesser percentage of
Units may be designated nonsmoking Units if a Common Interest
Complex fully complies with subsection (c) below."). On the other
hand, if your community wants to regulate only Rental
Complexes and not Common Interett Complexes, delete this
entire Section (*5).
(a) All Units of a Common Interest Complex that are not New Units, including any associated
exclusive-use Enclosed Areas or Unenclosed Areas, such as, for example, a private balcony,
porch, deck, or patio, are hereby designated nonsmoking Units as of [insert effective date of
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 16
Technical Assistance Legal Center—revised December 2009 ordinance + 1 year]; provided, however, that a lesser percentage of Units may be designated
nonsmoking Units if a Common Interest Complex fully complies with subsection (c) below.
(b) Smoking in a designated nonsmoking Unit is a violation of this [ article / chapter ] as
provided in Section [ (*9) ].
(c) By a vote of the membership as provided in subsection (1) below, a Common Interest
Complex may choose to designate fewer than one-hundred percent (100%) of existing Units as
nonsmoking Units by fully complying with the requirements stated in subsections (1) - (4) below.
Otherwise subsection (a) above shall apply.
(1) A vote by the membership on the threshold question of allowing less than one hundred
percent (100%) of Units to be designated nonsmoking Units must take place before [ insert
effective date of ordinance + 270 days].
commErsrr: The recommended timeframe of 270 days (or nine
months) is suggested as a reasonable amount of time to
organize and hold the homeowners' association election while
adhering to the legally required guidelines.
(2) Up to one hundred percent (100%), but no less than [ eighty percent (80%) ], of Units
that are not New Units, including, for example, any associated exclusive-use Enclosed Areas
or Unenclosed Areas, such as, for example, a private balcony, porch, deck, or patio, shall be
permanently designated as nonsmoking Units.
(3) Where possible, best efforts Shall be made to group nonsmoking Units together, both
horizontally and vertically, and physically separate them from Units where Smoking may be
allowed.
(4) No later than [ insert effective date of ordinance + 1 year ] the final designations must
be made and the following must be submitted in accordance with Section [ (*10) ]:
(i) a description of each designated nonsmoking Unit sufficient to readily identify the
Unit; and
(ii) a diagram depicting the location of the designated nonsmoking Units in relation to
all other Units.
Sec. [ (*6) 1. NONSMOKING DESIGNATIONS FOR EXISTING UNITS OF A
RENTAL COMPLEX.
COMMENT: This subsection prohibits Smoking inside existing
Units in a Rental Complex, but provides an opportunity for a
Landlord to allow Smoking in some of the existing Units. A
potential incentive for a Landlord to establish 100% nonsmoking
Units is that only limited action is required by a Landlord to set this
standard. Substantial action is required if the Landlord wishes to
"opt out" of the 100% default established in subsection (a).
If your community wants to prohibit Smoking in all existing Units
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 17
Technical Assistance Legal Center—revised December 2009 of Multi-Unit Residences regardless of Landlord preference, omit
subsection (d) entirely and all references to subsection (d) in
subsections (a)–(c).
(a) All Units of a Rental Complex that are not New Units, including any associated exclusive-
use Enclosed Areas or Unenclosed Areas, such as, for example, a private balcony, porch, deck, or
patio, are hereby designated nonsmoking Units as of [insert effective date of ordinance + 120
days ]; provided, however, that a lesser percentage of Units may be designated nonsmoking Units
if a Landlord fully complies with subsection (d) below.
(b) Smoking in a designated nonsmoking Unit is a violation of this [ article / chapter ] as
provided in Section j (*9) 1.
(c) Except if a Landlord fully complies with subsection (d) below, at least sixty (60) days
before [ insert effective date of ordinance + 120 days ], the Landlord shall provide each tenant
with:
(l) a written notice clearly stating that all Units, including the tenant's Unit, are
designated nonsmoking Units and that Smoking in a Unit will be illegal as of [ insert date
specified in Sec. *9(c) ]; and
(2) a copy of this [ article / chapter ].
(d) A Landlord may choose to designate fewer than one-hundred percent (100%) of existing
Units that are not New Units of a Rental Complex as nonsmoking Units by fully complying with
the requirements stated in subsections (1) - (7) below. However, subsection (a) above shall apply
whenever a Landlord takes no action or only partially complies with the requirements of this
subsection.
COMMENT: This subsection provides a step-by-step approach to
designating nonsmoking and Smoking-allowed Units in Rental
Complexes. This ordinance contains a recommended
implementation process that allows tenants and Landlords to
become familiar with the new Smoking restrictions over a 12-
month period. Here is a timeline illustrating the implementation
schedule:
Timeline to Designate Nonsmoking Units
Landlord notifies tenants Landlord notifies tenants Landlord submits designation Unlawful to smoke
of proposed designation I of final designation !documents to city/county in nonsmoking unit
Implementing a smokefree housing law by using a reasonable
phase-in period followed by a certain date on which everyone is
required to abide by the law is generally perceived to be the most
fair approach—balancing public health needs against the
potential inconvenience the ordinance puts on Smoking tenants
and Landlords who must implement the new policy. For legal
Model California Ordinance Regulating Smoking in Multi-Unit Residences page 18
Technical Assistance Legal Center—revised December 2009 reasons, a 12-month phase-in period strikes a good balance
between the potential legal rights of tenants under existing
agreements and the legal authority of Landlords to modify those
agreements as this ordinance requires_
Your community may want to provide additional
recommendations or guidelines for Landlords on what other
steps a Landlord might want to take when designating
nonsmoking Units. These could include conducting a tenant
survey to determine who would like to live in a nonsmoking Unit,
holding a house meeting to discuss the new policy, and/or
hosting cessation classes for tenants.
Alternative approaches to the 12-month phase-in period could
include, multiple-year phase-in periods based on tenant turnover,
waivers to smokers who request them, and permanent
grandfathering. A 12-month phase-in approach, however, is a
more effective strategy. Please contact TALC for assistance if an
alternative to the phase-in period is desired.
(1) The Landlord shall permanently designate up to one hundred percent (100%) of Units,
but no less than [ eighty percent (80%) ] of Units, including, for example, any associated
exclusive-use Enclosed Areas or Unenclosed Areas, such as, for example, a private balcony,
porch, deck, or patio, as nonsmoking Units by the Landlord.
(2) To the maximum extent practicable, nonsmoking Units must be grouped together both
horizontally and vertically and physically separated from Units where Smoking may be
allowed. Where possible all Units where Smoking may be allowed shall be in a single
building of a multi-building Multi-Unit Residence.
(3) No later than [ insert effective date of ordinance ± 120 days] a Landlord who chooses
to designate fewer than 100% of the Units of a Multi-Unit Residences as nonsmoking shall
submit the following in accordance with Section [ (*10) ]:
(i) a description of each designated nonsmoking Unit sufficient to identify the Unit; and
(ii) a diagram depicting the location of the designated nonsmoking Units in relation to
all other Units.
(4) At least sixty (60) days before submitting the nonsmoking Unit designations required
by subsection (3) above, the Landlord shall provide each tenant with:
(i) a written notice of the proposed designations, clearly stating that Smoking in a Unit
which is designated as a nonsmoking Unit will be illegal as of [ insert date specified in
Section *9(c)], and inviting comments on the proposed designations of nonsmoking Units
within the requisite timeline;
(ii) a diagram depicting the location of the designated nonsmoking Units in relation to
all other Units; and
(iii) a copy of this [ article / chapter ].
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 19
Technical Assistance Legal Center—revised December 2009 COMMENT: This subsection requires Landlords to provide tenants
notice of proposed nonsmoking designations before the
designations are final. The intent is to allow tenants to provide
comments to the Landlord so that the Landlord can
accommodate tenant wishes, if possible. Note, however, that the
Landlord is not obligated to make changes based on tenants'
comments. Existing law prohibits a Landlord from making
designations adverse to a tenant's interests for a discriminatory
or other illegal purpose.
A copy of this ordinance is required to accompany the notice of a
nonsmoking Unit designation so that tenants may asses for
themselves their full rights and obligations. Alternatively, the
ordinance can be reworded so that a summary of tenants' rights
and obligations is required instead of (or in addition to) a copy of
the ordinance itself. If this approach is adopted, steps should be
taken to ensure the accuracy and appropriateness of any
summary, as summaries are inherently incomplete.
(5) A Landlord may modify the proposed designations based upon comments received
from tenants.
(6) At least thirty (30) days before submitting the final designations of nonsmoking Units
required by subsection (3) above, the Landlord shall provide all tenants written notice of the
final designations clearly stating that Smoking in a designated nonsmoking Unit will be illegal
as of [ insert date specified in Section *9(c)], and a copy of the final documents that will be
submitted pursuant to Section [ (* 1 0) ] of this [ article / chapter ]. These final designations
may differ from the proposed designations on which tenants were invited to comment.
(7) A Unit in a Rental Complex for which a Landlord is required to submit information
pursuant to Section [ (*10) ] of this [ article / chapter ] but for which such information,
for any reason, is not fully and timely submitted is hereby designated as a nonsmoking Unit as
of [ insert effective date of ordinance + 120 days].
Sec. 1
(*7) 1. REQUIRED AND IMPLIED LEASE TERMS FOR ALL NEW AND
EXISTING UNITS IN RENTAL CO1VI1LEXES.
COMMENT: This section requires that Smoking restrictions be
included as part of the lease. Note that the term "Unit" includes
the defined term 'New Unit," so whenever the term Unit is used
in the ordinance, it includes all Units, both existing and new.
By including these provisions in lease agreements, Landlords
may enforce the Smoking restrictions just like any other condition
in the lease, such as common provisions regarding noise, use of
laundry facilities, and damage to common areas. Further, by
including the "third-party beneficiary" provision, other tenants will
be able to enforce a lease's Smoking restrictions. The Landlord
and other tenants become an alternate enforcement authority for
the Smoking restrictions in addition to possible local government
enforcement of the law (see Section '12 Enforcement) and
optional private citizen enforcement (see Section '13 Private
Enforcement).
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 20
Technical Assistance Legal Center—revised December 2009 Note also that after a Landlord amends an existing rental
agreement or enters into a new lease to include these required
terms, Smoking in violation of those terms becomes illegal
pursuant to Section *9, and not just a material breach of the lease.
(a) Every lease or other rental agreement for the occupancy of a Unit in a Rental Complex,
including, for example, New Units and existing Units, entered into, renewed, or continued month-
to-month after [ insert effective date of ordinance ], shall include the provisions set forth in
subsection (b) below on the earliest possible date when such an amendment is allowable by law
when providing the minimum legal notice.
COMMENT: This provision calls for the Landlord to amend a rental
agreement at the first opportunity. it is also designed to provide
tenants with adequate legal notice of the pending change in their
lease terms. The overall objective is to insert the new terms into
every lease within one year after the effective date of ordinance
(assuming leases are for one year or less).
(b) Every lease or other rental agreement for the occupancy of a Unit in a Rental Complex,
including, for example, New Units and existing Units, entered into, renewed, or continued month-
to-month after [ insert effective date of ordinance ], shall be amended to include the following
provisions:
COMMENT: The following subsections contain both an explicit
directive regarding the legal effect the required clause must
achieve followed by an example clause based on the directive.
Because leases vary in terms, format, and language, it is not
possible to provide verbatim wording that can be easily dropped
into any lease. These clause requirements provide a Landlord
With needed flexibility to conform an existing lease while using
terms consistent with the rest of the lease. In many cases, a
Landlord can probably just use the example language provided
with minimal changes.
(1) A clause providing that as of [ insert effective date of ordinance + one year], it is a
material breach of the agreement to allow or engage in Smoking in the Unit unless the
Landlord has supplied written notice that the Unit has not been designated a nonsmoking Unit
and no other prohibition against Smoking applies. Such a clause might state, "It is a material
breach of this agreement for tenant or any other person subject to the control of the tenant or
present by invitation or permission of the tenant to engage in smoking in the unit as of [ insert
effective date of ordinance + one year I unless landlord has provided written notice that the
unit has not been designated a nonsmoking unit and smoking in the unit is not otherwise
prohibited by this agreement, other agreements, or by law."
(2) A clause providing that it is a material breach of the agreement for tenant or any other
Person subject to the control of the tenant or present by invitation or permission of the tenant
to engage in Smoking in any Common Area of the property other than a designated Smoking
area. Such a clause might state, "It is a material breach of this agreement for tenant or any
other person subject to the control of the tenant or present by invitation or permission of the
tenant to engage in smoking in any common area of the property, except in an outdoor
designated smoking area, if one exists,"
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 21
Technical Assistance Legal Center—revised December 2009 (3) A clause providing that it is a material breach of the agreement for tenant or any other
Person subject to the control of the tenant or present by invitation or permission of the tenant
to violate any law regulating Smoking while anywhere on the property. Such a clause might
state, "It is a material breach of this agreement for tenant or any other person subject to the
control of the tenant or present by invitation or permission of the tenant to violate any law
regulating smoking while anywhere on the property."
(4) A clause expressly conveying third-party beneficiary status to all occupants of the
Rental Complex as to the Smoking provisions of the agreement. Such a clause might state,
"Other occupants of the property are express third-party beneficiaries of those provisions in this
agreement that concern smoking. As such, other occupants of the property may seek to enforce
such provisions by any lawful means, including by bringing a civil action in a court of law."
COMMENT: Declaring other residents third-party beneficiaries
grants people living in the Rental Complex limited rights to
enforce the Smoking restrictions in leases. Without the
declaration, other residents usually have no legal right to enforce
the lease terms (because they are not a "party" to the
agreement) and the power to enforce the terms of the lease rests
solely with the Landlord.
(c) Whether or not a Landlord complies with subsections (a) and (b) above, the clauses required
by those subsections shall be implied and incorporated by law into every agreement to which
subsections (a) or (b) apply and shall become effective as of the earliest possible date on which the
Landlord could have made the insertions pursuant to subsections (a) or (b):
COMMENT: This is a back-up provision to ensure that the
Smoking-related terms are included by law, even if the Landlord
fails to comply with subsections (a) or (b).
(d) A tenant who breaches a Smoking provision of a lease or other rental agreement for the
occupancy of a Unit in a Rental Complex, or who knowingly permits any other Person subject to the
control of the tenant or present by invitation or permission of the tenant, shall be liable for the breach
to: (i) the Landlord; and (ii) any occupant of the Rental Complex who is exposed to Smoke or who
suffers damages as a result of the breach.
COMMENT: This provision provides other tenants legal standing to
seek damages or possibly an injunction against someone
Smoking in violation of a lease term.
There are two additional enforcement mechanisms in this
ordinance:
Section *12 "Enforcement" provides for traditional enforcement
by local government officials.
Section *13 "Private Enforcement" grants any member of the
public the right to enforce the ordinance. Thus, a Landlord, a
tenant, or a member of the public could bring a lawsuit to enforce
the ordinance in either Superior Court or small claims court if
Section *13 is included.
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 22
Technical Assistance Legal Center—revised December 2009 (e) This [article / chapter] shall not create additional liability in a Landlord to any Person for a
tenant's breach of any Smoking provision in a lease or other rental agreement for the occupancy of a
Unit in a Rental Complex if the Landlord has fully complied with this Section and Section [ (*6)].
COMMENT: This provision expressly states that the Landlord is not
the guarantor of the ordinance's enforcement. That is, the
Landlord is not contractually required to enforce the no-Smoking
lease terms and other residents cannot force the Landlord to act
against a tenant who violates one. Including this provision can be
extremely important in efforts to gain Landlord support for the
ordinance.
(f) Failure to enforce any Smoking provision required by this [ article / chapter } shall not affect
the right to enforce such provision in the future, nor shall a waiver of any breach constitute a waiver
of any subsequent breach or a waiver of the provision itself.
COMMENT: This is a technical legal provision designed to prevent
a court from inferring a permanent waiver of a Smoking-related
provision from a pattern of lax enforcement.
Sec. f (*8) ]. ADDITIONAL DUTIES OF A LANDLORD OF A RENTAL COMPLEX
WITH LESS THAN ONE HUNDRED PERCENT (100%) NONSMOKING UNITS.
A Landlord of a Rental Complex with less than one hundred percent (100%) nonsmoking Units
shall provide to every prospective tenant, prior to entering into a new lease or other rental agreement
for the occupancy of a Unit in a Rental Complex, a copy of the designation documents submitted
pursuant to Section [ (*6) ] describing each designated nonsmoking Unit with an accompanying
diagram depicting the location of nonsmoking Units in relation to all other Units and any designated
Smoking areas.
COMMENT: This section requires the Landlord to notify prospective
tenants of the location of nonsmoking Units to Units where
Smoking may be permitted. It does not require the Landlord to
inquire as to any tenant's personal Smoking habits. Instead, the
Landlord merely identifies for prospective tenants which Units
allow Smoking and which do not.
If the community decides to make 100% of existing Units in
Rental Complexes nonsmoking with no Landlord election, this
Section can be omitted.
Sec. [ (4'9) ]. SMOKING PROHIBITED BY LAW IN CERTAIN AREAS.
COMMENT: This section consolidates the actual Smoking
prohibitions. Rather than state that Smoking is prohibited
numerous times in various sections of the ordinance, those
sections simply refer the reader to this Section *9. One benefit of
consolidation is a uniformity of the Smoking prohibitions between
sections,
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 23
Technical Assistance Legal Center—revised December 2009 (a) Smoking in a Common Area, on or after [ insert effective date of ordinance], other than in
a designated Smoking area established pursuant to Section [ (*2) ], is a violation of this
[ article / chapter ].
(b) Smoking in a New Unit, on or after [ insert effective date of ordinance], is a violation of
this [ article / chapter 1.
(c) Smoking in .a designated nonsmoking Unit, on or after [ insert effective date of ordinance
+ 1 _year I, is a violation of this [ article / chapter J.
(d) No Person shall engage in Smoking in any Nonsmoking Area.
COMMENT: Note that whenever a lease contains a no- Smoking
term, this provision makes Smoking in such a Unit against the
law in addition to being a violation of the lease. This provision
also applies to any nonsmoking rules or CC&Rs for a Common
Interest Complex.
Thus, when a Landlord amends an existing rental agreement or
creates a new one to include the lease terms required by Section
*7, Smoking in violation of those lease terms then becomes
illegal, not just a lease violation.
(e) No Person with legal control over any Nonsmoking Area shall permit Smoking in the
Nonsmoking Area, except as provided in Section [ (*7)(e) ].
COMMENT: This provision makes Smoking in a nonsmoking area
or Unit against the law, even if an area is made nonsmoking only
by a lease term (rather than an ordinance, for example). It also
makes a tenant responsible for Smoking by his or her guests.
The exception refers back to the subsection limiting a Landlord's
liability for a tenant's breach of a no-smoking term.
Sec. r (*10)1. PROCEDURES AND REQUIREMENTS FOR MANDATED
SUBMISSIONS.
(a) Submissions required by this [ article / chapter ] must be received by [ insert the municipal
office or official who will administer the record-keeping requirements of the ordinance] on or
before any applicable due date. The submissions shall include all material and information
required by this [ article / chapter ] and such other materials and information as [ insert the
designated municipal office or official] deems necessary for the administration and enforcement
of this [ article / chapter ].
COMMENT: The community should fill in the blanks with the
appropriate office, official, or department that can accommodate
the record-keeping requirements of this ordinance and that can
handle the anticipated requests from the public for access to the
information. Communities will likely differ as to which department
is best suited to fill this role.
(b) All material and information submitted pursuant to this [ article / chapter ] constitute
diselosable public records and are not private or confidential.
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 24
Technical Assistance Legal Center—revised December 2009 See. [ (*11) ]. SMOKING AND SMOKE GENERALLY.
(a) The provisions of this [ article / chapter ] are restrictive only and establish no new rights
for a Person who engages in Smoking. Notwithstanding (1) any provision of this [ article /
chapter] or other provisions of this Code, (ii) any failure by any Person to restrict Smoking under
this [ article / chapter ], or (iii) any explicit or implicit provision of this Code that allows Smoking
in any place, nothing in this Code shall be interpreted to limit any Person's legal rights under
other laws with regard to Smoking, including, for example, rights in nuisance, trespass, property
damage, and personal injury or other legal or equitable principles.
COMMENT: The subsection spells out that the intent of this
ordinance is to create new smokefree areas and to enhance the
right of nonsmokers to smokefree environments. This ordinance
does not provide smokers with any "safe harbors" from existing
laws that might already impose potential liability for Smoking.
Subsection (a) does not expand traditional nuisance law in any
way, and should generally be included in all ordinances based on
this model. Subsection (c) below does potentially expand
traditional nuisance law.
(b) Notwithstanding any other provision of this [ article / chapter ], Smoking marijuana for
medical purposes as permitted by California Health and Safety Code sections 11362.7 et seq. is
not prohibited by this [ article / chapter ].
(e) For all purposes within the jurisdiction of the [ City / County of ], nonconsensual
exposure to Smoke [ occurring on or driftirm into residential property ] is a nuisance, and the
uninvited presence of Smoke on [ residential ] property is a nuisance and a trespass.
COMMENT: The declaration in subsection (c) that Smoke is a
nuisance extends far beyond the residential context, unless
limited by including the optional language in brackets. Once
Smoke is declared a nuisance, nuisance abatement laws can be
used to address Smoke around doorways, at businesses, in
public venues, and anywhere else it may occur. However,
declaring Smoke a nuisance is particularly helpful in the housing
context because it eliminates the need to prove that some
particular level of exposure has occurred and then to prove that
such exposure is an unjustified intrusion or hazard.
California Government Code section 38771 explicitly authorizes
cities to declare nuisances by ordinance. Counties may declare a
nuisance pursuant to the broad police power set forth in the
California Constitution, article XI, section 7.
Sec. (*12) I. PENALTIES AND ENFORCEMENT.
(a) The remedies provided by this [ article / chapter] are cumulative and in addition to any
other remedies available at law or in equity.
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 25
Technical Assistance Legal Center—revised December 2009 COMMENT: The following provisions are designed to Offer a variety
of options to the drafter and to the enforcing agency. Drafters
may choose to include some or all of these options. Once the
ordinance is enacted, the enforcing agency will have the
discretion to choose which enforcement tools to use in any given
case. As a practical matter, these enforcement options would not
be applied in a single case, although multiple remedies might be
used against a particularly egregious violator over time.
(b) Every instance of Smoking in violation of this [ article / chapter
J
is an infraction subject
to a [ one hundred dollar ($100) ] fine. Other violations of this [ article / chapter
1
may, in the
discretion of the [ City Prosecutor / District Attorney ], be prosecuted as infractions or
misdemeanors when the interests of justice so require. Enforcement of this chapter shall be the
responsibility of [ ]. In addition, any peace officer or code enforcement official also may
enforce this chapter.
COMMENT: The first sentence establishes the penalty for the core
type of violation: Smoking where it is prohibited. The fine amount
can be modified but cannot exceed $100 for a first infraction.
(See California Government Code section 36900.) It is separated
from the main enforcement provision that follows so that law
enforcement officers can simply write a ticket for illegal Smoking.
The second sentence, sometimes called a "wobbler," affords the
prosecuting attorney discretion whether to pursue a violation as
an infraction (like a parking ticket) or a misdemeanor (a crime
punishable by up to a $1,000 fine and/or six months in County
Jail). Alternatively, violations can be set as either an infraction or
a misdemeanor in all circumstances. Misdemeanors are more
serious crimes for which a jury trial is available to defendants.
Fines and other criminal penalties are established by the Penal
Code and are typically reflected in the general punishments
provision of a local code.
This provision also designates a primary enforcement agency,
which is recommended, but remains flexible by permitting any
enforcement agency to enforce the law.
(c) Violations of this [ article / chapter
1
are subject to a civil action brought by the [ City /
County of 1, punishable by a civil fine not less than [ two hundred fifty dollars ($250) ] and
not exceeding [ one thousand dollars ($1,000) ] per violation.
COMMENT: This provision provides civil fines for violating the
ordinance. It requires that a traditional civil suit be filed by the city
or county (possibly in small claims court). The fine amounts can
be adjusted but cannot exceed $1,000 per violation. (See
California Government Code section 36901.)
(d) No Person shall intimidate, harass, or otherwise retaliate against any Person who seeks
compliance with this [ article / chapter ]. Moreover, no Person shall intentionally or recklessly
expose another Person to Smoke in response to that Person's effort to achieve compliance with
this [ article / chapter ]. Violation of this subsection shall constitute a misdemeanor.
(e) Causing, permitting, aiding, or abetting a violation of any provision of this [ article /
chapter ] shall also constitute a violation of this [ article / chapter ].
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 26
Technical Assistance Legal Center—revised December 2009 I
COMMENT: This is standard language that is typically included in a
city or county code and may be omitted if duplicative of existing
code provisions.
(f) Any violation of this [ article / chapter
1
is hereby declared to be a public nuisance.
COMMENT: By expressly declaring that a violation of this ordinance
is a nuisance, this provision allows enforcement of the ordinance
by the city or county via the administrative nuisance abatement
procedures commonly found in municipal codes.
Note that this declaration merely says that violating the ordinance
qualifies as a nuisance (e.g., when Smoking in a nonsmoking
area, the violation is the nuisance, not the Smoke). It is not the
same thing as a local ordinance declaring Smoke a nuisance.
Please see Section *11(c) for the declaration that nonconsensual
exposure to secondhand is a nuisance.
(g) In addition to other remedies provided by this [ article / chapter ] or otherwise available at
law or in equity, any violation of this [ article / chapter ] may be remedied by a civil action
brought by the [ City Attorney / County Counsel ], including, without limitation, administrative or
judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and
suits for injunctive relief.
COMMENT: It is common to provide that the local government's
lawyers may go to court to seek injunctions and other penalties in
addition to fines. The express provision for injunctive relief lowers
the showing required to obtain a preliminary or permanent
injunction as described in IT Corp. v. County of Imperial, 35
Cal .3d 63 (1983).
A public agency should think carefully about the nuisance
abatement procedure it chooses in enforcing this ordinance after
it is adopted. A local government may provide for treble damages
for the second or subsequent nuisance abatement judgment
within a two-year period, as long as the ordinance is enacted
pursuant to Government Code section 38773.7. Treble damages
are not available, however, under the alternative nuisance
abatement procedures in Government Code section 38773.1 and
Health & Safety Code section 17980. Government Code
section 38773.5 establishes a procedure for nuisance abatement
where the cost of the abatement can be collected via the property
tax roll as a special assessment against the property on which
the violation occurs,
[ (h) Any Person, including a legal entity or organization, acting for the interests of itself, its
members, or the general public may bring a civil action for injunctive relief to prevent future such
violations or sue to recover such actual or statutory damages as he or she may prove. ]
COMMENT: If Section *13 'Private Enforcement" is not included,
consider including this simple provision, which provides a far
more limited type of private enforcement. If Section *13 is
included, this provision should be omitted.
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 27
Technical Assistance Legal Center—revised December 2009 [ (i) Except as otherwise provided, enforcement of this [ article / chapter ] is at the sole
discretion of the [ City / County of ]. Nothing in this [ article / chapter ] shall create a right
of action in any Person against the [ City / County of ] or its agents to compel public
enforcement of this [ article / chapter ] against private parties. ]
COMMENT: This is an optional provision, which makes clear that a
City or County cannot be liable to any Person for failure to
enforce the Smoking restrictions in this ordinance.
Sec. [ (*13) 1. PRIVATE ENFORCEMENT.
COMMENT: This 'Private Enforcement" provision makes it possible
for any member of the public to sue violators of this ordinance.
This "private right of action" section provides an avenue for private
persons to file suit. Such a right was curtailed after the passage of
Proposition 64 in November 2004, which prohibited the use of
California Business and Professions Code section 17200 by
private persons to file suits on behalf of the public. However,
nothing in Proposition 64 prohibits local governments from
creating a private right of action to enforce violations of local law.
Note that although this section is titled "Private Enforcement," the
city or county itself can also use these provisions if it deems
them preferable to other enforcement options or if it seeks to
impose additional sanctions.
For further explanation of the rationale behind and potential
impact of this provision, please see TALC's memorandum
entitled "The Benefits of Adding a Private Right of Action
Provision to Local Tobacco Control Ordinances" available from
our website at wvvvv.phipnet.oroitobacco-control.
If this "Private Enforcement" provision is not included, consider
including the optional language in Section *12(h).
(a) Any Person, including a legal entity or organization or a government agency, acting for the
interests of itself: its members, or the general public may bring a civil action to enforce this
[ article / chapter ]. Upon proof of a violation, a court shall award the following:
COMMENT: This provision allows a Person to sue a violator if the
Person has been personally harmed or if the Person wants to act
as a private attorney general by holding the violator accountable
on behalf of the general public.
(1) Damages in the amount of either:
(i) 'upon proof, actual damages; or
(ii) with insufficient or no proof of damages, $[ 500] for each violation of this
[ article / chapter 1 (hereinafter "Statutory Damages"). Each day of a continuing violation
shall constitute a separate violation. Notwithstanding any other provision of this [ article /
chapter ], no Person suing on behalf of the general public shall recover Statutory Damages
based upon a violation of this [ article / chapter ] if a previous claim brought on behalf of
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 28
Technical Assistance Legal Center—revised December 2009 the general public by another Person for Statutory Damages and based upon the same
violation has been adjudicated, whether or not the Person bringing the subsequent claim
was a party to the prior adjudication.
COMMENT: This provision allows for the collection of damages
even if it is difficult or impossible to prove the actual amount of
damages resulting from a given violation. Statutory damages can
add up to a substantial sum because each day of a continuing
violation is a separate violation. However, if an action is brought
in small claims court, the total amount of damages sought must
fall below $5,000 (or $7,500 if the small claims suit is brought by
a natural person). So, when considering the amount at which to
set statutory damages, it is worth considering whether a typical
case brought under the ordinance will involve a claim for less
than $5,000 (or $7,500). Note that this provision protects a
person from being sued multiple times on behalf of the general
public for the same violation and must do so to prevent the
ordinance from being challenged as unconstitutionally punitive.
(2) Exemplary
damages, where it is proven by clear and convincing evidence that the
defendant is guilty of oppression, fraud, malice, retaliation, or a conscious disregard for the
public health.
COMMENT: Exemplary damages are also known as punitive
damages. They are designed to punish and deter a defendant in
a tort case who has acted in an outrageous manner.
(b) The Person may also bring a civil action to enforce this [ article / chapter ] by way of a
conditional judgment or an injunction. Upon proof of a violation, a court shall issue a conditional
judgment or an injunction.
COMMENT: in order to get an injunction, a plaintiff would have to
sue in another division of superior court and not the small claims
division. However, a plaintiff could seek a conditional judgment in
small claims court. Note that the difference between an injunction
and a conditional judgment is that with the former, the defendant
is directly ordered to do something (or to refrain from doing
something). With a conditional judgment, however, the defendant
is given a choice between fulfilling certain conditions (e.g.,
ceasing the illegal conduct) or suffering a different judgment
(e.g., paying monetary damages). (See 1 Consumer Law
Sourcebook: Small Claims Court Laws and Procedures
(California Department of Consumer Affairs 2005.) A conditional
judgment could serve as an alternative to damages, or it could be
in addition to damages. For example, a small claims court could
order some monetary damages along with a conditional
judgment giving the defendant a choice between stopping the
violations or paying even more money.
(c) Notwithstanding any legal or equitable bar against a Person seeking relief on its own
behalf, a Person may bring an action to enforce this [ article / chapter ] solely on behalf of the
general public. When a Person brings an action solely on behalf of the general public, nothing
about such an action shall act to preclude or bar the Person from bringing a subsequent action
based upon the same facts but seeking relief on his, her or its own behalf.
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 29
Technical Assistance Legal Center revised December 2009 COMMENT: This is an important clause, so exercise care when
considering whether to modify or eliminate it. This clause
accomplishes two distinct goals:
First, the clause permits a Person with a special relationship to a
particular defendant to sue the defendant even though the
Person might otherwise be prohibited from doing so. Attorneys
often refer to such prohibitions as legal and equitable bars. For
example, a tenant may be required to arbitrate—not litigate—any
disputes, such as a dispute involving Smoking in a Multi-Unit
Residence. Under this clause, a tenaht may be required to
arbitrate any personal claims (e.g., damages for personal injury
from Smoke) but can nevertheless sue the tenant violating the
ordinance in court as a representative member of the general
public. In such a circumstance, the Person could only make the
claims that every member of the general public could make (e.g.,
sue for Statutory Damages on behalf of the general public for a
violation of this ordinance).
Second, the clause permits a Person who first sues solely on
behalf of the general public to sue the same defendant later on
any personal claims (although such personal claims might still be
subject to legal or equitable bars as described above). Normally,
repetitive suits based upon essentially the same facts and
circumstances are prohibited. Attorneys often use the terms ries
judicata, collateral estoppel, or issue or claim preclusion for such
prohibitions. Under this clause, however, a tenant subjected to
Smoking in a Multi-Unit Residence can first sue the tenant
violating the ordinance solely on behalf of the general public,
receiving the statutory damages amount for each violation. If the
tenant is made ill by the Smoke, she can sue the violating tenant
later for personal injury.
This clause is not intended to modify well-established legal rules
concerning when a plaintiff may bring personal claims. Rather, it
simply reflects the reasoning that when a Person brings a claim
solely on behalf of the general public, the plaintiff is acting as a
private attorney general; thus, the existence of personal claims is
irrelevant and such claims are unaffected.
(d) Nothing in this [ article / chapter ] prohibits a Person from bringing a civil action in small
claims court to enforce this [ article / chapter ], so long as the amount in demand and the type of
relief sought are within the jurisdictional requirements of that court.
I
COMMENT: This clause is legally superfluous, but is serves to flag
for plaintiffs and courts that small claims court would be an
appropriate forum for resolving disputes under this provision.
SECTION III. CONSTRUCTION, SEVERABILITY.
It is the intent of the [ City Council! Board of Supervisors ] of the [ City / County ] of
to supplement applicable state and federal law and not to duplicate or contradict such
law and this Ordinance shall be construed consistently with that intention. If any section, subsection,
subdivision, paragraph, sentence, clause or phrase of this Ordinance, or its application to any person
or circumstance, is for any reason held to be invalid or unenforceable, such invalidity or
=enforceability shall not affect the validity or enforceability of the remaining sections, subsections,
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 30
Technical Assistance Legal Center—revised December 2009 subdivisions, paragraphs, sentences, clauses or phrases of this Ordinance, or its application to any
other person or circumstance. The [ City Council / Board of Supervisors ] of the [ City / County ] of
II I hereby declares that it would have adopted each section, subsection, subdivision, paragraph,
sentence, clause or phrase hereof, irrespective of the fact that any one or more other sections, subsec-
tions, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or
unenforceable.
COMMENT: This is standard language. Often this "boilerplate" is
found at the end of an ordinance, but its location is irrelevant.
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 31
Technical Assistance Legal Center—revised December 2009 COUNTY OF LOS ANGELES
Public Health
Tobacco Control & Prevention Program
NON-SMOKING MULTI-UNIT HOUSING ORDINANCES
LOS ANGELES COUNTY
Santa
Monica
outh
Pasadena
Year Passed:
2008
2008
2009
2010
2010
2011
POLICYPROVISIONS•
Create separate smoking and non-smoking sections
Prohibit smoking in at leaSt175%:ofthe individual units X (80%)
Prohibit smoking in indoor common areas
Prohibit smoking in outdoor common areas
Designate smoking area away from doors and
windows
Prohibit srrioking„Oni: ,balCOnfes.and,;::Pati0: ::::
Disclosure of the location of smoking units to
prospective tenants
Prohibit:smokiniTnbUffer and patios
„
Ei
of smoking-permitted units direCtiNtadjacent' .tO
- ,
non-
smoking units.):::L .
Declare second-hand smoke a nuisance in housing
hiclude a phase-in plan
Apply to condominiums
X(2010)
I
X(2012)
X
X (80%)
X
X (100%)
X
X
. .
X X (2012)
X**
• X (2012)
X
X
Apply to existing housing
Apply to new housing
EnfOrCenientlan.
• public education
• smoke-free 'lease terms
• private citizen enforcement
• local government enforcement
X
X
X
X
X
*Smoking is prohibited in units that share a common ducting system and in children's play areas and the swimming pool area when children are present.
** Landlords are required to disclose to prospective tenants about the no-smoking policy.
Last updated 12/27/2012
This material was made possible by funds through the Proposition 99 Tobacco Tax Initiative from the Los Angeles County Department of Public Health.
For more information please contact the Tobacco Control and Prevention Program at 213-351-7340. Ihograro
c
- cCOUNTY OF Los ANGELES
Public Health
NON-SMOKING MULTI-UNIT HOUSING ORDINANCES
LOS ANGELES COUNTY
Year Passed:
2011
2011
2011
2012
2012
POLICY PROVISIONS
Create separate smoking and non-smoking sections
Prohibit smoking,in . atleast 75% of the individual units .X (100%) X'(80%)
•
Prohibit smoking in indoor common areas
,
Prohibit Smoking in outdoor common areas
I Designate smoking area away from doors and
windows
Prohibit smoking on balconies and patib'S
Disclosure of the location of smoking units to
prospective tenants
Prohibit smoking in buffer zones (balconies and .patios
of smoking-permitted Units directly adjacent to bon-
smoking units)
Declare second-hand smoke a nuisance in housing
Include a phase-in plan
Apply to condominiums
APply to existing housing
Apply to new housing
Enforcement Plan
• public education
smoke-free lease terms
• private citizen enforcement
• . local government enforcement
X
X (rental units only)
X
X
*** Landlords are required to disclose to prospective tenants about the no-smoking policy and location of smoking and non-smoking units. In single-family
dwellings licensed as Family Day Care Home, persons with legal control must disclose to parents/guardians if smoking is permitted and does occur at facility.
Last updated 12/27/2012
This material was made possible by funds through the Proposition 99 Tobacco Tax Initiative from the Los Angeles County Department of Public Health.
For more information please contact the Tobacco Control and Prevention Program at 213-351-7340. CAA Policy Statements
Policy Statement 12: Smoke-Free Housing
Choice
CAA believes that owners and managers of residential rental property should be free to set smoking
and non-smoking policies for their rental homes and communities. CAA believes that market forces
are the best way to designate units and the common areas of the property for both smokers and non-
smokers in residential rental housing so that all residents are able to use and enjoy their homes. CAA
also believes that damage caused by tobacco smoking in the unit constitutes damage beyond
reasonable normal wear and tear, and it justifies a deduction from the security deposit by the
property owner to make repairs and to clean the unit.
BACKGROUND
Over the last decade, there has been a dramatic change in Californian's expectations regarding
exposure to environmental tobacco smoke. Recent surveys indicate that over 80 percent of renters
in California prefer housing with smoke free areas. In response to member inquiries and to enable
the industry to address this resident demand voluntarily, CAA has made available an Addendum for
Tobacco Smoke Free Areas. This form allows certain common areas, certain units, or the entire
property to be designated as smoke free.
CAA believes that restricting smoking in a lease is no different than restrictions on noise, quiet hours,
pool use, pets and guests — these are all house rules that protect residents and the owner's property.
In addition, there is no constitutional "right to smoke." According to a 1999 Legislative Counsel
Opinion "Discrimination against smokers by landlords serves legitimate business interests by
potentially reducing the risk of fire damage and, in turn, reducing insurance and maintenance costs."
In addition, civil rights suits in the employment context suggest that smoking is not a disability, and
smokers are not a protected class.
California's Civil Code Section 1950.5 allows an owner to collect a security deposit from a tenant in
order to compensate the owner for a tenant's default in the payment of rent or for, among other
things, the repair of damages to the premises, exclusive of normal wear and tear, caused by the
tenant The owner is also authorized by law to use the deposit to pay for the cleaning of the unit
upon the termination of the tenancy in order to return the unit to the same level of cleanliness that
existed at the time the tenant took possession. Refurbishing the apartment of a heavy smoker for the
next resident always requires more time and effort in repainting (particularly surface preparation). In
many instances, carpeting, draperies, and upholstered furniture must be replaced rather than cleaned.
CAA believes that these are damages to the unit that far exceed normal wear and tear.
California's Labor Code Section 6404.5, which bars smoking in any enclosed work area, applies to
enclosed common areas of apartment or condominium buildings or complexes such as lobbies,
hallways, laundry rooms, stairways, elevators, and recreation rooms are all considered places of
employment. CAA believes that prohibitions on smoking in other areas of residential rental
properties should be part of the rental agreement rather than codified in a state or local law. This will
allow property owners to develop individualized policies that are appropriate to their property and
the needs of all Residents.
Product of the California Apartment Association
980 — Ninth Street, Suite 200, Sacramento, CA 95831
(800) 967-4222 www,caanet.orq
1 I'll
ma ma
California
Apa ment
As
BROUGHT TO YOU BY TH CALIFORNIA APARTMENT ASSOCIATION
WHITE
PAPER
t,V;FN
Tobacco Smoking at Residential Rental Properties
INTRODUCTION
The anti-smoking movement has been gathering steam in California and throughout the country ever
since secondhand smoke was declared a human carcinogen a decade ago. Heartened by their success
in gaining passage of state laws and local ordinances that restrict smoking in the workplace and many
other indoor and outdoor public areas, anti-smoking advocacy groups have turned their attention to
smoking in multi-unit housing. Many communities have passed ordinances restricting smoking in multi-
unit common areas and requiring set asides of certain numbers of units as smoke free. California state
law makes clear that rental property owners may prohibit the smoking of cigarettes or other tobacco
products by anyone on the property or in any building or portion of the property. Recent surveys indicate
that over 80 percent of renters in California prefer housing with smoke-free areas.
As the new local ordinances have received nationwide media coverage, property owners are receiving
complaints from non-smokers about smoking in common areas and about secondhand smoke seeping
into their units from the units of their smoking neighbors. In addition, lawsuits have been filed against
property management companies, alleging failure to warn about environmental tobacco smoke and
alleging that secondhand smoke is a nuisance.
II
RISING DEMAND FOR SMOKE-FREE UNITS
Eighty-four percent of Californians do not smoke. A recent statewide telephone survey of 602 California
apartment residents, commissioned by the American Lung Association of California's Center for Tobacco
Policy and Organizing, found:
• 69 percent favored regulations requiring all apartment buildings to offer non-smoking sections,
where all the apartments, patios, and balconies in that section were non-smoking.
• 39 percent would prefer to live in a building where smoking is not allowed anywhere.
• 46 percent experience secondhand smoke drifting into their own apartment.
• 61 percent favor a law requiring landlords to inform new tenants if there is a smoker in the
apartment next door to the unit they are about to rent.
• 70 percent of survey respondents believed a tenant should be evicted for repeated violations of
smoking prohibitions in a lease (43 percent definitely should / 27 percent probably should).
California Apartment Association
www.caanetorg
WP#39 Revised 01/12 — ©2012—AII Rights Reserved
Page 1 Interestingly, this also means 30 percent of respondents did not think a tenant should be evicted
for repeated violations of the lease.
III
CALIFORNIA STATE LAW
RESTRICTIONS ON SMOKING IN THE WORKPLACE
Although tenants view the apartment building and their individual units as their home, larger complexes
are also the workplace of the building manager and maintenance personnel. California's Labor Code
Section 6404.5 bars smoking in any enclosed work area. Although "private residences" are exempt from
this law, according to California's Legislative Counsel, common areas of apartment or condominium
buildings or complexes such as lobbies, hallways, laundry rooms, stairways, elevators, and recreation
rooms remain subject to the Labor Code's smoking prohibition if the areas are enclosed and are places
of employment. The smoking prohibition also applies to residences licensed as family daycare homes
during the hours of operation as a family daycare home and in those areas where children are present.
The Labor Code requires the posting of 'no smoking' signs and requires employers to ask smokers to
stop smoking in any enclosed work area. The Labor Code is enforced by local health departments and
other local law enforcement agencies. Penalties start at $100 for a first violation and increase thereafter.
Workplace exposure to tobacco smoke is also addressed by Proposition 65 (discussed below).
IV
LEASE PROVISIONS TO BAN SMOKING AT RENTAL PROPERTY
California state law allows a residential landlord to prohibit the smoking of a cigarette or other tobacco
product by anyone on the property or in any building or portion of the building, including any dwelling
unit, other interior or exterior area, or the premises on which it is located.
Every lease or rental agreement entered into on or after January 1, 2012, for a residential dwelling unit
on property in any portion of which the landlord has prohibited the smoking of cigarettes or other tobacco
products must include a provision that specifies the areas on the property where smoking is prohibited, if
the lessee has not previously occupied the dwelling unit.
For a lease or rental agreement entered into before January 1, 2012, a prohibition against the smoking of
cigarettes or other tobacco products in any portion of the property in which smoking was previously
permitted constitutes a change of the terms of tenancy, and the landlord must provide written notice to
the affected tenants.
There are many local laws that prohibit individuals from smoking tobacco at public and private property.
This state law does not preempt those local laws.
V
ENVIRONMENTAL TOBACCO SMOKE AS A TOXIC AIR CONTAMINANT
On January 26, 2006, the California Air Resources Board (ARB) identified environmental tobacco smoke
(ETS) as a "Toxic Air Contaminant," meaning that it is now formally identified as an airborne toxic
substance that may cause and/or contribute to death or serious illness. The listing is based on studies of
exposure levels and health effects. In May 2007, the ARB indicated that it is now beginning to evaluate
the need for action to reduce exposure by conducting an analysis of measures already in place, available
options, and costs for reducing the health risk from exposure. CAA will monitor this process as it takes
place and participate when appropriate.
For additional information see: htto://www.arb.ca.00v/toxics/ets/factsheetets.pdf.
California Apartment Association
www.caanet org
WP#29 Revised 01/12 — 02012— Al! Rights Reserved
Page 2 On June 27, 2006, the Office of the Surgeon General of the United States issued a report that concludes
there is no risk-free level of exposure to secondhand smoke, and that nonsmokers exposed to
secondhand smoke at home or work increase their risk of developing heart disease by 25 to 30 percent
and lung cancer by 20 to 30 percent.
For a copy of the report see: http://www.surosonoeneral.00vilibrary/secondhandsnnoke/reporti.
VI
HOUSING DISCRIMINATION
Under the California Fair Employment and Housing Act (Government Code Section 12960 ("FEHA")),
individuals with disabilities are entitled to reasonable accommodations to ensure equal access to, and
enjoyment of, their housing. FEHA prohibits discrimination based on physical disability, mental disability,
and medical condition. "Physical disabilities" include physiological and anatomical conditions that limit a
person's ability to participate in major life activities. Courts have found that individuals such as
asthmatics, who are hypersensitive to tobacco smoke, are disabled because the tobacco exposure
interferes with the major life activity of breathing. Under the FEHA, reasonable accommodations must be
provided to the qualified disabled person unless that accommodation causes an undue hardship.
Depending on the circumstances, such accommodations could range from (1) designating common
areas or certain other portions of a building as smoke-free, (2) allowing the tenant to relocate to a
different unit, or (3) allowing the tenant to terminate the lease without a penalty so that the tenant can
move to other housing in order to obtain a smoke-free environment.
VII
LIABILITY FOR FAILURE TO WARN REGARDING EXPOSURE TO ENVIRONMENTAL
TOBACCO SMOKE: PROPOSITION 65
Proposition 65, the "Safe Drinking Water and Toxic Enforcement Act of 1986," (Health & Safety Code
Sections 25249.5, et seq.) requires businesses with ten or more employees to provide notification to
individuals about exposures to carcinogens and reproductive toxins. Tobacco smoke is listed as both a
carcinogen and a reproductive toxin under Proposition 65. In addition, it contains over forty other listed
chemicals, including arsenic, carbon monoxide, nicotine, lead, benzene and formaldehyde. Proposition
65 requires warnings for consumer products, environmental, and workplace exposures. Unlike the Labor
Code's prohibition against smoking in the workplace, Proposition 65's "environmental" warning
requirement is not limited to enclosed areas and applies to any area where smoking occurs. CAA and its
special counsel, Jeffer, Mangels, Butler & Marmaro have developed Proposition 65 compliance
guidelines, warning signs and warning brochures for use by members of the rental housing industry.
CAA's recommended compliance methodology consists of two parts: warning signs to be posted on the
property and a brochure to be provided to new and existing tenants. The brochure contains information
regarding specific exposure sources that may be present on the property. Specific warning requirements
vary depending on the size and layout of the property. The compliance guidelines and additional
information about Proposition 65 is available on CAA's website at:
http://www.caanet.org/Proposition 65.aspx.
California Apartment Association
wwvv.caaneLorg
WP#39 Revised 01/12 — © 2012— All Rights Reserved
Page 3 VIII
LOCAL REGULATION OF SMOKING IN PUBLIC PLACES
Local ordinances that restrict smoking in public places have been passed in many California
communities. Some of these ordinances can be interpreted to prohibit smoking in certain interior
common areas, entryways, or playgrounds of apartment complexes. The cities of Arcata, Oakland,
Davis, Sacramento, Palo Alto, and Monterey, as well as San Mateo and Mann Counties have, to varying
degrees, restricted indoor and outdoor smoking in public areas. Certain local ordinances apply to the
interiors of buildings that are open to the public, including areas that may not be workplaces, as covered
by the Labor Code. Other ordinances extend to outdoor public areas such as sidewalks, plazas,
doorways, and entryways. The Cities of Davis and Arcata have the most restrictive ordinances. Arcata
bans smoking in its entire downtown "plaza" area. Davis bans smoking in most outdoor locations where
people are likely to congregate, including ATM lines, bus stops, and outdoor bar and restaurant seating
areas, and it also forbids smoking within 20 feet of any building in which smoking is prohibited, except
when passing through to another destination. Calabasas prohibits smoking outdoors within 20 feet of
any person who is not smoking.
Modesto, San Ramon, Berkeley, and San Diego have ordinances that make outdoor children's
recreational facilities, such as parks, playgrounds, zoos, wading pools, and skate parks, smoke-free.
These ordinances could cover playgrounds that are part of an apartment complex if the playgrounds are
accessible to the public.
Ix
LOCAL REGULATION OF SMOKING IN MULTI-UNIT HOUSING
The Technical Assistance Legal Center (TALC), funded by the California Department of Health Services,
provides California communities with free technical assistance on tobacco control policy issues. TALOs
website' contains a host of information about local laws that address smoking, the legality of smoking
prohibitions, and background regarding litigation over drifting secondhand smoke. In addition to serving
as an information resource, TALC has developed a sample local ordinance that addresses smoking in
multifamily housing. The sample ordinance contains a wide variety of provisions — allowing localities to
pick and choose among various approaches - ranging from provisions for clear authority for owners to
limit or prohibit smoking and notification requirements about non-smoking areas, to mandates that
prohibit smoking in certain areas, in a certain percent of units, etc. Other provisions include a
"grandfather" clause for existing smokers when owners convert a complex over time, a declaration that
secondhand smoke is a nuisance, and options for private enforcement both by tenants and the public.
Many localities have passed ordinances specifically addressing smoking in multi-unit rental housing. The
most stringent ordinances - those in Belmont and Calabasas - have received nationwide news coverage.
Belmont, Calabasas, El Cajon, and Temecula all prohibit smoking in individual units and outdoor
common areas. Belmont, Calabasas, and El Cajon additionally require a 20 foot non-smoking buffer
around any smoke-free area. Belmont prohibits smoking in any residential rental unit that shares a floor
or ceiling with another unit. By 2012, 80 percent of units in every apartment building in Calabasas must
be smoke-free. Similarly, in Temecula 25 percent of units in new buildings with 10 or more units must
be designated as non-smoking units.
The city and County of snctrmantrInve taken a different voluntary approach to the issue . Each has
passed resolutions encouraging owners of multi-unit rental properties to designate a certain percentage
of units as non-smoking (city 25 percent, county 50 percent). Owners in the City who comply are eligible
for "public recognition."
California Apartment Association
www.caaneLorg
WPft-39 Revised 01/12 — © 2012— All Rights Reserved
Page 4 X
SMOKING IN INDIVIDUAL UNITS
According to the American Lung Association, secondhand smoke that seeps in from neighboring units
can pose both a health threat to sensitive individuals and a significant nuisance. Non-smokers have filed
lawsuits against property owners and against their fellow tenants for causing or failing to stop exposures
to environmental tobacco smoke. They use legal theories such as nuisance, battery, breach of the
covenant of quiet enjoyment, and the warranty of habitability, negligence, harassment, and intentional
infliction of emotional distress.
A tenant could argue that the owner has violated the implied covenant of quiet enjoyment by failing to
stop other tenants from smoking and thereby substantially affecting the tenant's enjoyment of a material
part of the premises. Although no California court has ruled on this issue, courts in several other states
have allowed lawsuits to continue where a neighbor's smoking is extreme enough, and the courts have
required owners to give the tenant a reduction in rent or other relief.
In the absence of a specific law or ordinance, it may be difficult for a tenant to establish that a neighbor's
smoking is a nuisance, because the behavior must be both substantial and unreasonable. However, in
San Diego, a condominium owner was successful in obtaining a restraining order to prevent his neighbor
from smoking in his garage, which was located underneath the plaintiffs home.
In 2006, a lawsuit was filed in Van Nuys, California that sought to require an apartment building owner to
protect a tenant from secondhand smoke. The father, on behalf of his five year old daughter who suffers
from asthma, asked the court to stop the property owner from permitting smoking in the common areas
of the apartment complex. The plaintiff argued that the tobacco smoke had caused special injury to his
daughter and to other residents and guests of the property. In 2007, the court granted the landlord's
motion to dismiss. The case has been appealed.
XII
BENEFITS OF PROVIDING SMOKE-FREE HOUSING
In addition to the obvious health and safety benefits of reducing exposure to secondhand smoke and
decreasing fire danger, smoke-free housing can be a good business decision. The statistics quoted
above indicate that smoke-free units are a desired amenity that can make it easier to market a unit. In
addition, maintenance and turnover costs are significantly lower for non-smoking units. Refurbishing the
apartment of a heavy smoker for the next resident requires more time and effort in repainting (particularly
surface preparation). In many instances, carpeting, draperies, and upholstered furniture must be
replaced rather than cleaned. Many owners have also found fire insurance to be less expensive due to
the lower risk present on non-smoking properties. According to the State Fire Marshall, in one year,
cigarettes were found to have caused over 1400 fires in California homes, apartment, and mobile homes,
with an estimated $18 million loss in property and contents. According to the National Fire Protection
Association, smoking materials (i.e., cigarettes and cigars, etc,) are twice as likely to be the cause of fires
in apartment buildings compared with one and two family homes and mobile homes. Lastly, voluntarily
providing an amenity desired by many residents may diminish the perceived need for government
regulation in this area.
California Apartment Association
www.caanet.org
WP#39 Revised 01/12 — © 2012— All Rights Reserved
Page 5 XIII
HOW TO IMPLEMENT A SMOKE-FREE OR PARTIALLY SMOKE-FREE APARTMENT
COMMUNITY
Before implementing a smoke-free environment, many owners survey residents to determine whether
they are interested in living in a smoke-free apartment building or smoke-free section of the building.
This also provides owners an opportunity to communicate to residents about the health and safety and
business reasons for a non-smoking policy — secondhand smoke, fire dangers, maintenance, cleaning
and redecorating costs, insurance costs, and consumer demand for smoke-free units The easiest time
to set a new policy is when a unit or building is vacant.
For most owners, the next step for occupied units is to set a time frame for making changes; some
owners "grandfather" in existing tenants — making their units non-smoking after residents move out,
rather than changing the terms of tenancy. As with any other change in terms of tenancy, residents must
be provided proper notice — thirty days if the tenancy is month to month or at the time of renewal if the
tenant is on a lease. An owner who prohibits smoking in common areas, where it was previously
permitted — for example at poolside - also requires proper notice. In addition to adding the smoking
prohibition to rental agreements, non-smoking signs should be posted on the property, and the no-
smoking policy advertised as part of the owner's marketing strategy.
In response to member inquiries and to enable the industry to address this resident demand voluntarily,
the California Apartment Association has made available an Addendum for Non-Smoking Areas.
XIV
SMOKE-FREE APARTMENT REGISTRY
The Smoke-free Apartment Registry — http://smokefreeapartments.orq and other similar registries like
Smoke Free Rentals.com wvvw.smokefreerentals.corn are ways to market your property to residents
who are looking for smoke-free housing. These registries provide free listings of apartment buildings that
are completely or partially smoke-free. Funded by the Tobacco Tax Health Protection Act of 1988
(Proposition 99), the Registries are in response to tenant complaints about drifting smoke. The goal with
the registries is to accommodate both smokers and non-smokers in multi-family housing so that all
residents are able to use and enjoy their homes. Most owners listed in the Registries have adopted
smoke-free policies for their buildings; some owners include outdoor common areas. The Registries also
accept listings of single family homes. According to the Smoke-Free Apartment Registry, more than 200
building owners in Los Angeles have successfully adopted smoke-free policies.
OTHER REFERENCE MATERIALS FROM THE CALIFORNIA APARTMENT ASSOCIATION
CAA's Policy Statement #12 — Smoke-Free Housing Choice
www.caanet.org/Polic_y Statements .aspx
CAA's Lease Addendum (Form 34.0) — Smoking Policy Addendum
http://www.caanetorq/SmokincLaspx
' tittp://www.phi.ora/talc/
California Apartment Association
www.caanet.org
144
' WP#39 Revised 01/12 — © 2012— All Rights Reserved
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