Sacramento Report
by Monica Williamson
CAA provides regular updates about ongoing efforts to reduce smoking in rental housing. At present, the nonsmoking campaign appears to have embarked on a new strategy. In particular, a Southern California attorney and antismoking activist is suing the owners of his apartment complex for allowing tenants to smoke in common areas including the swimming pool, barbecue areas and playground. The complaint alleges secondhand smoke has harmed the tenant’s five-year-old daughter and that the property owner is violating public nuisance laws by allowing smoking on the grounds. Not coincidentally, the suit was filed just one day after U.S. Surgeon General Kenneth P. Moritsugu released a report stating there is “no risk-free level of exposure to secondhand smoke.”
California Regulations
Earlier this year, the California Air Resources Board identified environmental tobacco smoke (ETS) as a “Toxic Air Contaminant.” The report, which was a culmination of four years’ worth of research and investigation, seems to have been a catalyst for increased smoking restrictions in local communities. Indeed, now that the ARB has formally identified ETS as an airborne toxic substance that may cause and/or contribute to death or serious illness, it will continue to reduce exposure by conducting an analysis of measures already in place, reviewing available options and analyzing costs for reducing the health risk from exposure.
On the legislative side, back in 2004, Assemblymember Joe Nation (D-Marin, Sonoma) introduced AB 210. The bill would have defined drifting, wafting or blowing tobacco smoke as a nuisance and prohibited smoking of any tobacco-related product within common areas of multifamily residential housing. In addition, the bill would have prohibited smoking in individual units unless those units had been specifically designated as smoking units. This bill was never moved by the author.
In December 2005, CAA staff reviewed proposed legislation to require a certain percentage of residential rental units to be nonsmoking and for smoking to be prohibited in certain areas of residential rental property. CAA staff provided comments based on CAA’s Policy Statement, which provides that allocation of nonsmoking areas should be voluntary by property owners so that they can best meet the needs of all of their residents. Antismoking advocates responded to the same proposal, stating that they believed they could do better at the local level than with any statewide legislation. The bill was never formally introduced.
Local Efforts
Various organizations have embarked on efforts to pass local laws to reduce smoking in multiunit housing. Depending on the locality and the organization, the focus varies from encouraging owners to voluntarily make units smoke free to outright prohibitions. A sample ordinance on the Technical Assistance Legal Center’s website (www.talc.phi.org) contains a variety of provisions—allowing localities to pick and choose among various approaches.
The cities of Arcata, Oakland, Davis, Sacramento, Palo Alto and Monterey, as well as San Mateo and Marin counties, have, to varying degrees, restricted indoor and outdoor smoking in public areas. Certain local ordinances apply to the interior of buildings that are open to the public, including areas that may not be workplaces 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.
Stanislaus County, Modesto, San Ramon, Berkeley and San Diego have all passed, or are considering, ordinances making outdoor children’s recreational facilities, such as 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.
Express restrictions on smoking in apartment building common areas are also beginning to emerge. Long Beach passed an ordinance that prohibits smoking in the public areas of apartment and condominium complexes and Calabasas passed an ordinance that prohibits smoking in all exterior common areas of apartment buildings.
Fair Housing
Government and private restrictions on smoking are legal. Under the California Fair Employment and Housing Act (Government Code Section 12960), individuals with disabilities are entitled to reasonable accommodations to ensure equal access to, and enjoyment of, their housing. “Physical disabilities” include physiological and anatomical conditions that limit a person’s ability to participate in major life activities.
Courts have found that individuals who are hypersensitive to tobacco smoke are disabled because the tobacco exposure interferes with the major life activity of breathing. Under FEHA, reasonable accommodations must be provided to the qualified disabled person unless that accommodation causes an undue hardship. In short, as long as it is a property owner’s policy to prohibit smoking, rather than to refuse to rent to smokers, there should be no claim of unlawful arbitrary discrimination.
What to Do with Tenants Who Smoke
Although tenants view their individual apartment units as their homes, larger complexes are also the workplaces 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 and 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 and in those areas where children are present. The labor code requires the posting of “no smoking” signs and mandates that employers ask smokers to stop smoking in any enclosed work area.
Proposition 65 requires businesses with ten or more employees to provide notification to individuals about exposure to carcinogens and reproductive toxins. Property management companies that allow smoking but have not posted a “clear and reasonable warning” sign have been sued under Prop. 65 for exposing tenants, the public, office and administrative staff, security personnel, maintenance workers, and service personnel to tobacco smoke in interior and exterior common areas.
CAA understands and agrees on the importance of addressing tobacco smoke as a public health issue. Indeed, the rental housing industry has struggled with this issue for years. Owners believe in all tenants’ rights to privacy as well as all tenants’ rights to a peaceful enjoyment of their environment. Yet smoking is one of the few acts that can place tenants at odds over their statutorily protected rights. CAA believes decisions about smoking in multiunit housing are best left to individual property owners. And while the labor code prohibits smoking in enclosed common areas that are employee workplaces, owners and managers may also choose to prohibit smoking in any additional areas of the property. You can see CAA’s smoke-free lease addendum at www.caanet.org.
Owners are in the best position to determine whether they have the appropriate resources available to enforce policies established to balance the needs of all tenants.
The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of SFAA or San Francisco Apartment Magazine. Monica Williamson is CAA’s vice president of public affairs. Copyright © 2006 by San Francisco Apartment Magazine. All rights reserved.