sacramento report

By Monica Williamson

Ever since secondhand smoke was declared a human carcinogen a decade ago, the anti-smoking movement has been gaining steam both in California and across the country. During this time, anti-smoking groups have successfully passed state and local laws that restrict smoking in the workplace and many other indoor and outdoor public areas. One of the current growing trends is to eliminate smoking in multifamily housing. Indeed, efforts that began with abolishing smoking in common areas accessible to all residents and employees are evolving into efforts to restrict smoking in individual rental units.

Smoking is not very popular in this state, with just 16% of Californians identifying themselves as smokers. Despite this seemingly small percentage, property owners regularly receive complaints from nonsmokers about smoking in common areas and secondhand smoke seeping into their units from neighboring units.

Under the California Fair Employment and Housing Act, people 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 FEHA, reasonable accommodations must be provided to the qualified disabled person unless that accommodation causes an undue hardship on the property owner. And while there is no state law that specifically addresses the rights and responsibilities of property owners with respect to smoking in residential rental properties, owners face many challenges when residents smoke at the property.

Smoking Restrictions
Both government and private restrictions that prohibit tobacco smoke in a residential lease are legal. There is no law that prohibits an owner from imposing these restrictions. In fact, smoking restrictions are no different than those that ban excessive noise, impose quiet hours, or establish other rules surrounding pool use, pets, and so forth. They are all house rules that protect residents and the owner’s property.

Local ordinances that restrict smoking in public places are on the rise in California. Some of these ordinances can be interpreted to prohibit smoking in certain interior common areas, entryways and playgrounds of apartment complexes. For example, 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.

The interiors of private dwellings are not covered by the laws and ordinances that address smoking in public or common areas. 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. Despite this uncertainty, nonsmokers have filed lawsuits against property owners and fellow tenants for causing or failing to stop exposure to (drifting) 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.

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Local Ordinances
Ever since 2002, when statewide legislation to restrict smoking in apartment buildings failed, efforts to pass local laws to address the issue have increased. 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. TALC’s 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.

CAA believes that owners and managers of residential rental property should be free to set smoking and nonsmoking policies for their rental homes and communities. CAA believes that market forces are the best ways to designate units and the common areas of the property 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 normal wear and tear, and it justifies a deduction from the security deposit to make repairs and to clean the unit. CAA has made available a form that allows certain common areas, units or the entire property to be designated as smoke free. CAA staff expects to see the State Legislature propose legislation in 2008 that applies some of the same provisions found in local ordinances.

 

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The opinions expressed in this article are those of the authors and do not necessarily reflect the viewpoint of SFAA or SF Apartment Magazine. Monica Williamson is CAA’s vice president of public affairs. Copyright © 2008 by SF Apartment Magazine. All rights reserved.