Smoking ban for California residential housing seeks approval

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For a number of years now the landlord community has hotly debated the value of providing No Smoking units within apartment communities.  A large number of property owners believe that the detriments of smoking are so numerous and the economic cost of smoke damage so high, that common sense requires owners to implement broad No-Smoking policies.

Another owner group believes the burden of monitoring a strict No-Smoking policy is too onerous and opens a door of criticism against owners for micro-managing and interfering with the lawful private behavior of a resident in the privacy of the residents’ home.  This landlord group has feared while smokers are not a "protected class" under Fair Housing laws, some fame-starved attorney would file a test lawsuit, thereby placing all residential housing owners with No-Smoking prohibitions at risk for a nuisance, but expensive lawsuit.  Furthermore, more often than not, when two residents have a conflict regarding the second-hand cigarette smoke of one of them, it is the landlord who is caught in the no-win middle of the fight.  Typically both the non-smoker and the smoker residents are unhappy with the response of the owner, regardless of how the response plays out.

Simply asked:  Whose rights have more value and should be protected?  The right to a healthy environment of the non-smoker, or the right of privacy in the home of the smoker?

Senate Bill 332 was introduced earlier this year by Senator Alex Padilla (D-Los Angeles), scoring one for the non-smoking advocates.  The bill adds Article 1.5 (commencing with Section 104497) to Chapter 1 of Part 3 of Division 103 to the California Health and Safety Code.  The bill, if passed and signed into law by Governor Brown, would make clear the rights of the owner of residential housing to prohibit the smoking of cigarettes or other tobacco based products within clearly defined areas of the residential building, including the unit itself, or the entire building.   The legislation would not preempt any local legislation enacted before January 1, 2012.                                                                                      

The bill, passed the Senate just this week with an overwhelming 33-2 vote.  The current version, which now heads to the Assembly, reads as follows:                                   

“THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  The Legislature finds and declares all of the following:

   (a) More than 443,000 people die in the United States from tobacco-related diseases every year, making tobacco-related diseases the nation's leading cause of preventable death.

   (b) The State Department of Public Health has estimated that 86 percent of adult Californians are nonsmokers. Secondhand smoke is responsible for an estimated 49,400 deaths among nonsmokers each year in the United States, which includes 3,400 lung cancer deaths and 46,000 deaths due to heart disease. Secondhand smoke also has been proven to cause cancer in humans.

   (c) Secondhand smoke exposure adversely affects fetal growth with elevated risk of low birth weight and increased risk of sudden infant death syndrome (SIDS) in infants of mothers who smoke.

   (d) Secondhand smoke exposure causes as many as 300,000 children in the United States under 18 months of age to suffer lower respiratory tract infections, such as pneumonia and bronchitis; exacerbates childhood asthma; and increases the risk of acute, chronic, middle-ear infections in children.

   (e) The United States Environmental Protection Agency has classified secondhand smoke as a group A carcinogen, the most dangerous class of carcinogen.

   (f) The United States Surgeon General has concluded that there is no risk-free level of exposure to secondhand smoke.

   (g) The State Air Resources Board has put 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.

   (h) The California Environmental Protection Agency has included secondhand smoke on the Proposition 65 list of chemicals known to the State of California to cause cancer, birth defects, and other reproductive harm.

   (i) Thirty-one percent of California's housing is multiunit residences, such as apartments and condominiums.

  SEC. 2.  Article 1.5 (commencing with Section 104497) is added to Chapter 1 of Part 3 of Division 103 of the Health and Safety Code, to read:

      Article 1.5.  Smoking of Tobacco Products in Residential Rental Units

   104497.  (a) Notwithstanding any other provision of law, a landlord of a residential dwelling unit, as defined in Section 1940 of the Civil Code, or his or her agent, may prohibit the smoking of a cigarette, as defined in Section 104556, or other tobacco product 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, in accordance with this article.

   (b) (1) Every lease or rental agreement entered into on or after January 1, 2012, for a residential dwelling unit on property on any portion of which the landlord has prohibited the smoking of cigarettes and other tobacco products pursuant to this article shall include a provision that specifies the areas on the property where smoking is prohibited.

   (2) For a lease or rental agreement entered into before January 1, 2012, a prohibition against the smoking of cigarettes and other tobacco products in any portion of the property in which smoking was previously permitted shall constitute a change of the terms of tenancy, requiring adequate notice in writing, to be provided in the manner prescribed in Section 1162 of the Code of Civil Procedure.

   (c) A landlord who exercises the authority provided in subdivision (a) to prohibit smoking shall be subject to state and local notice requirements governing changes to the terms of a rental agreement for tenants with rental agreements that are in existence at the time that the policy prohibiting smoking is adopted.

   (d) This section shall not be construed to preempt any local ordinance in effect on or before January 1, 2012.”

What do you think?

• Should smoking be banned from residential housing in San Francisco or the state? 
• Should a smoking policy be left to the judgment of the building owner? 
• Should tenants be allowed to smoke if they are able to keep all second hand smoke from escaping their unit?  
• Should tenants be allowed to smoke if they pay into a fund for anti-smoking education?  
• What do you think is the right answer?   What is the "fair" answer?  
• Which right is most important - the right to privacy within your home, or the right to have your home free of second hand smoke?