sr-052510-13b13-B
May 25, 2010
Council Meeting: Santa Monica, California
CITY CLERK'S OFFICE -MEMORANDUM
To: City Council
From: Councilmembers Davis and McKeown
Date: May 25, 2010
Request of Councilmembers Davis and McKeown to direct staff, pursuant to the City
Attorney's March 4th, 2010 report on second-hand smoke regulation, and to a
subsequent recommendation from.the Task Force on the Environment, to prepare for
the Council municipal ordinance options expanding existing law on residential common
areas to include other outdoor areas adjacent to doors. and operable windows.
Link to March 4th information item:
http://www.smgov.net/WorkArea/DownloadAsset.as px?id= 13139
Task Force on the Environment motion, April 19, 2010:
(That) the Santa Monica Task Force on the Environment express support for all four
areas for further regulation of smoking in multi-unit residential properties in Santa
Monica that are stated in the March 4, 2010 City Attorney's staff report, "Report on
Implementation and Enforcement of the Ordinance Governing Residential Common
Area Smoking and Update on Other Areas of Secondhand Smoke Regulation". As
stated, these areas would not impact the tenancy rights of existing tenants. They are: 1)
Designate and disclose law, 2) Private balconies and patios, 3) Declaration of existing
rights of owners, 4) Prohibition for future tenants.
13-B
1 May 25, 2010
Date: March 4, 2010
To: Mayor and City Council
From: Marsha Jones Moutrie, City Attorney
Subject: Report On The Implementation And Enforcement Of The Ordinance
Governing Residential Common Area Smoking And Update On Other
Areas Of Second-Hand Smoke Regulation
Introduction
On January 19, 2010, Council directed staff to report back with an update on the
implementation and effectiveness of the 2009 City ordinance that provided a remedy for
smoking ih common areas of multi-unit residential properties and to identify any
enforcement or other issues that have arisen since the enactment of the ordinance.
Discussion
The ordinance governing common area smoking at multi-unit residential properties
became law in March 2009. At that time the City Attorney's Consumer Protection Unit
conducted a public outreach campaign to increase awareness and compliance with the
law. Staff issued a press release and helped publicize the law in the. local news media.
Staff met with affected local groups including the Apartment Association of Greater Los
Angeles and Rent Control staff who helped publicize the law through the Board's
citywide newsletter.. The Consumer Protection Unit created a new web page with
answers to common questions about the law and offered downloadable sample signs
that owners are required to post in their common areas.
In the nearly one year since the common area ordinance was adopted, staff has
received several dozen contacts from the public on the topic, mostly inquiries about the
law's requirements, which staff has addressed. Staff has learned of some properties
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where tenants have written letters to other tenants requesting compliance with the
ordinance. To staffs knowledge a few local tenants have stated their intent to pursue
Small Claims Court actions in response to violations of the ordinance, however staff is
unable to determine how many such cases actually have been brought in Small Claims
Court or the results of such cases. Bill Dawson, president of the Apartment Association
of Greater Los Angeles, states .that he is aware of a couple of problems that his
members had in implementing the ordinance but that they were easily resolved.
Dawson states that most owners and tenants seem to understand the. law and want to
comply. He knows of a few tenants who wrote demand letters to those smoking at their
property but is unaware of any pursuing a case to Small Claims Court. Esther Schiller, a
local anti-smoking activist, states that her group has received complaints of landlords
failing to post required signs and she is concerned that some owners may not be aware
of the law.
Rent Control Board staff has received approximately five to six inquiries-per week
during the past year about the issue of smoking in rental properties. Many of these
callers want stronger anti-smoking laws. Some calls are from tenants who express
frustration because they do not want to have to confront smoking tenants in order to
lower their exposure to second-hand smoke. (The ordinance requires an informal
attempt to resolve the situation before pursuing legal remedies.) Some tenants have
complained to Rent Control staff that their landlords have not posted the required signs.
Rent Control staff plans to re-publicize the ordinance and its requirements in its April
2010 newsletter which will go out to all rental property owners in the City.
Given the relatively small number of complaints the City has received, and given the
relatively comprehensive advance outreach that was done, staff believes that the
ordinance has been well received and that overall compliance has been good. The
upcoming newsletter from Rent Control will continue efforts to increase owners'
awareness of their responsibilities under the law.
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Federal Development In Residential Smoking Regulation: In July 2009 the U.S.
Department of Housing and Urban Development issued a special Notice "strongly
encourage[ing]" Public Housing Authorities to implement non-smoking policies "in some
or all of their public housing units." A copy of the HUD Notice is attached to this report
as Attachment A.
Update On Santa Monica's Outdoor Dining Area Smoking Ordinance: City Attorney
staff recently conducted an investigation to assess compliance with the City's 2007
ordinance that made business owners liable for allowing smoking in outdoor dining
areas in certain situations and required the posting of no-smoking signs at all outdoor
dining areas. The investigation included all known outdoor dining areas in the City that
are located on City property (e.g., sidewalks). Staff observed that 24 of the 35 dining
areas had the required signs; eleven did not. Staff will follow up with the latter group and
will continue to investigate and work to increase compliance.
Implementation of Tobacco Retailer License Law: City Attorney staff is working with the
Licensing Division and the Police Department to administer and enforce the City's new
Tobacco Retailer Licensing ordinance. That ordinance, adopted in 2009, is designed to
help curb underage tobacco sales by funding local undercover sting operations at retail
outlets that sell tobacco products. City Staff estimated that there are approximately 120
businesses in the City that sell tobacco products. After outreach efforts last year to
educate local businesses about the law and its requirements, these businesses have
now obtained the new local license. The Police Department will soon begin undercover
inspections of these businesses. The City Attorney's Office will prosecute underage-
sales violators and will administer and enforce the other requirements of the licensing
ordinance.
Potential Areas For Further Regulation Of Smokiha In Multi-Unit Residential Properties
in Santa Monica: Staff has identified several possible areas in which Council may
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consider further restriction of second-hand smoke in rental properties in the City if it
intends to increase the current level of protections. These areas would not impact the
tenancy rights of existing tenants.
1. Designate and disclose law: As Staff discussed in its previous report
in 2009, Council could consider adopting an ordinance like Oakland's recent
enactment, requiring owners to survey, designate, and disclose the smoking
status of each unit at a property. Such a rule would not impact the rights of any
existing tenants. Owners would have to conduct a survey of the property and
subsequently inform various people of the unit designations. A stronger measure
would be to further require that units presently designated for smoking would lose
that status when the current tenant moves out. This grandfathering provision
would still protect the rights of existing tenants; but it would prevent smoking by
future prospective tenants. If Council considers adesignate-and-disclose law,
other potential features are:
a. Requiring owners to disclose to all potential renters or buyers the
smoking status of the unit in question as well as the status for all units in
the property;
b. Requiring owners to inform all current occupants of the smoking
status of all units in the property;
c. Including condominiums as well as apartments (as the City has done
with common areas); and
d. Explicitly allowing owners - as permitted under current law - to
change the designation of a unit from smoking to non-smoking when an
occupant moves out.
2. Private balconies and aatios: After the interiors of units, this area is
likely the second most commonly requested area for restriction of smoking. It is
seen as a way to reduce second-hand smoke entering the windows of non-
smokers' units. If Council were to approach further restricting outdoor smoking at
multi-unit properties, Council could consider the recommendation of the
Technical Assistance Legal Center (TALC), the leading statewide agency in this
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area, and require asmoke-free "buffer zone" within a certain distance (such as
25 feet) from the windows or doors of residential units. That approach might
address the concerns of tenants who are getting second-hand smoke through
their windows while excluding private outdoor areas that are far enough from
other units so as to avoid exposure to smoke.
3. Declaration of existinga rights of owners: Council could declare and
publicize various existing rights of property owners to restrict smoking and to
inform current and potential occupants of various information related to smoking
at the property. By definition this would involve no change in tenants' or owners'
rights; it might assuage the concerns of some owners who would Tike to curb
second-hand smoke at their, properties but are wary. of violating local tenant
protections.
4. Prohibition for future tenants: Council could consider restricting
smoking inside rental units for future tenancies, leaving untouched the ability of
current tenants to smoke inside their apartments. A similar idea is to prohibit
smoking in all newly constructed residential units in the City, or some portion
thereof.
Attachment A: HUD Notice Re Non-Smoking Policies In Public Housing
Prepared By: Adam Radinsky, Head, Consumer Protection Unit
Paula Rockenstein, Consumer Affairs Specialist
5'
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~`~`~ *.~
°`-°~~,..F• ~'~ U.S. Department of Housing and Urban Development
Office of Public and Indian Housing
Office of Healthy Homes and Lead Hazard Control
SPECIAI. ATTENTION oF: NOTICE: PIH-2009- 21(HA)
Regional Directors; State and Area
Coordinators; Public Housing Hub
Directors; Program Center Coordinators;
Troubled Agency Recovery Center Directors;
Special Applications Center Director;
Public Housing Agencies;
Resident Management Corporations;
Healthy Homes Representatives
Subject:. Non-Smoking Policies in Public Housing
Issued: July 17, 2009
Expires: July 31, 2010
Cross Reference:
24 CFR 903.7(b)(3)
24 CFR 903.7(e)(1)
1. Pur ose. This notice strongly encourages Public Housing Authorities (PHAs) to implement
non-smoking policies in some or all of their public housing units. According to the. American
Lung Association, cigarette smoking is the number one cause of preventable disease in the
United States. The elderly and young population, as well as people with chronic illnesses, are
especially vulnerable to the adverse effects of smoking. This concern was recently addressed by
the Family Smoking Prevention and Tobacco Control Act, P.L. 111-31, signed by the President
on June 22, 2009. Because Environmental Tobacco Smoke (ETS) can migrate between units in
multifamily housing, causing respiratory illness, heart disease, cancer, and other adverse health
effects in neighboring families, the Department is encouraging PHAs to adopt non-smoking
policies. By reducing the public health risks associated with tobacco use, this notice will enhance
the effectiveness of the Department's efforts to provide increased public health protection for
residents of public housing. Smoking is also an important source of fires and fire-related deaths
and injuries. Currently, there is m Departmental guidance on smoking in public housing.
2. Aualicability. This notice applies to Public Housing.
3. Background. Secondhand smoke, which is also known as environmental tobacco smoke
(ETS}, is the smoke that comes from the burning end of a cigarette, pipe or cigar, and the smoke
exhaled from the lungs of smokers. ETS is involuntarily inhaled by nonsmokers, and can cause
or worsen adverse health effects, including cancer, respiratory infections and asthma. The 2006
Surgeon General' s report on secondhand smoke identifies hundreds of chemicals in it that are
known to be toxic. The report (The Health Consequences of Involuntary Exposure to
Secondhand Smoke) is located at www.cdc.~ov/tobacco/data statistics/sir/index.htm
Secondhand smoke causes almost 50,000 deaths in adult nonsmokers in the United States each
year, including approximately 3,400 from lung cancer and another 22,000 to 69,000 from heart
disease.
Secondhand smoke exposure causes disease and premature death in children and adults who do
not smoke according to the U.S. Environmental Protection Agency (EPA)
www.epa. Gov/smakefree/healtheffects.html:
There are over 1.2 million residents who reside in public housing. Residents between the ages of
0-17 represent 39 percent of public housing residents. Elderly residents over the age of 62
represent 15 percent of public housing residents. That accounts for at least 54 percent of public
housing residents that could be at increased risk to the adverse effects of cigarette smoking.
There are also a considerable number of residents with chronic diseases such as asthma and
cardiovascular disease who aze particularly vulnerable to the effects of ETS. Secondhand smoke
lingers in the air hours after cigazettes have been extinguished and can migrate between units in
multifamily buildings.
Based on data from the U.S. Fire Administration (USFA) of the Department of Homeland
Security, there were an estimated 18,700 smoking-material fires in homes in 2006. These fires
caused 700 civilian deaths (otl~r than firefighters'), and 1,320 civilian injuries, and $496 million
in direct property damage www.nfpa.org/assets/files/PDF/OS.Smokina.pdf. In multifamily
buildings, smoking is the leading cause of fire deaths: 26 percent of fire deaths in 2005
www.usfa.dhs.~ov/downloadslpdf/publications/Residential Structure and Building Fires.pdf.
4. Policv Discretion PHAs aze permitted and strongly encouraged to implement anon-smoking
policy at their discretion, subject to state and local law. Some PHAs have established smoke-free
buildings. Some PHAs have continued to allow current residents who smoke to continue to do so,
but only in designated areas and only until ]ease renewal or a date established by the PHA. Some
PHAs are prohibiting smoking for new residents. According to astate-funded anti-smoking
group, the Smoke-Free Environment Law Project of the Center for Social Gerontology, there are
over 112 PHAs and housing commissions across the country that have implemented non
smoking policies. PHAs should consult with their resident boards before adopting non-smoking
policies at their projects.
5. PHA Plans. PHAs opting to implement a nonsmoking policy should update their PHA
plans. According to 24 CFR 903.7(e), their plan must include their statement of operation and
management and the rules and standards that will apply to their projects when the PHA
implements their nonsmoking policy. PHAs are encouraged to revise their lease agreements to
include the non-smoking provisions. If PHAs institute nonsmoking polices, they should ensure
that there is consistent application among all projects and buildings in their housing inventory in
which nonsmoking policies are being implemented.
6. Indoor Air puality QAQ). According to the U.S. Green Building Council (USGBC), toxin-
free building materials used in green buildings help combat indoor air pollution. Good IAQ
includes minimizing indoor pollutants. As discussed above, ETS is known to be an indoor air
pollutant; as a result it would be difficult for a PHA to achieve good IAQ in its buildings if
residents are allowed to smoke, especially indoors. During construction or renovation of
projects,. PHAs should consider actions such as installing direct vent combustion equipment and
fireplaces; providing for optimal, controlled, filtered ventilation and air sealing between living
areas and garage or mechanical areas, and the use of paints and other materials that emit no or
low levels of volatile chemicals (volatile organic compounds or VOCs). Since 65 percent of the
public housing inventory was built prior to 1970, it would be hard for a PHA to implement
retrofits that could improve lAQ significantly, unless renovation was scheduled. Also, if a PHA
does conduct renovations to improve IAQ without also implementing a nonsmoking policy, the
IAQ benefits of the renovation would not be fully realized. A nonsmoking policy is an excellent
approach for those PHAs that are trying to achieve improved IAQ without the retrofit costs.
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7. Maintenance. It is well known that turnover costs are increased when apartments are vacated
by smokers. Additional paint to cover smoke stains, cleaning of the ducts, replacing stained
window blinds, or replacing carpets that have been damaged by cigarettes can increase the cost to
make a unit occupant ready. View the Sanford Maine Housing Authority case study at
htto://wwwsmokefreeforme.ore/landlord.php?pie=Save+Money%2C%3 Cbr%3ESave+your+B
uildin .
8. Smoking Cessation National Support. Because tobacco smoking is an addictive behavior,
PHAs that implement nonsmoking policies should provide residents with information on local
smoking cessation resources and programs: Local and state health departments are sources of
information on smoking cessation; see the American Lung Association's (ACA's) Web page on
State Tobacco Cessation Coverage www.lun~usa2.or~/cessation2 for information on cessation
programs, both public and private, in alI States and the District of Columbia. The National
Cancer Institute's Smoking Quit Line can be called toll-free at 877-44U-QUIT (877-448-7848).
Hearing- or speech-challenged individuals may access this number through TTY by calling the
toll-free Federal Relay Service at 800-877-8339. PHAs that implement nonsmoking policies
should similarly be persistent in their efforts to support smoking cessation programs for residents,
adapting their efforts as needed to local conditions.
9. Further Information For further information related to this notice, please contact Dina
Elani, Director, Office of Public Housing Management and Occupancy Division at
(202)402-2071.
/s/ /s/
Sandra B. Henriquez Jon L. Gant,
Assistant Secretary for Public and Indian Director, Office of Healthy Homes and
Housing Lead Hazazd Control