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City of City Council Report
Santa Monica
City Council Meeting: December 13, 2011
Agenda Item: I n
To: Mayor and City Council
From: Marsha Jones Moutrie, City Attorney
Subject: Introduction and First Reading of an Ordinance Amending the Anti -
Smoking Law to Require Designation and Disclosure of Smoking Status of
Residential Units; To Prohibit Smoking In All Units Designated Non -
Smoking; And To Prohibit Smoking In All Newly Constructed Hotels.
Recommended Action
Staff recommends that City Council introduce for first reading the attached proposed
ordinance which would require disclosure of the smoking status of all residential units,
prohibit smoking in designated non - smoking units, and prohibit smoking in all newly
constructed hotels.
Executive Summary
The proposed ordinance would make two changes to the City's anti - smoking laws as
Council directed and also make a third change that is recommended as necessary to
effectuate the directed changes. First, it would require that all existing residential units
in multi -unit properties be designated as either smoking or non - smoking, and that the
smoking status of units be disclosed in certain ways. Second, it would deem the units
of all new occupancies as non - smoking, including those previously designated smoking
that had been vacated. Third, it would prohibit smoking in all newly constructed hotels.
Background
On June 28, 2011, the City Council directed staff to prepare an ordinance to require that
all units in multi -unit residential properties be designated by its occupants as either
smoking or non - smoking; and to create certain disclosure requirements after the units
are so designated. Council also directed staff to explore other potential areas to expand
the City's protections against second -hand smoke in multi -unit residential properties,
and to explore enforcement options. Finally, Council asked staff for certain updated
information related to second hand smoke regulation.
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Staff consulted with other agencies and advocacy groups, to select the best among
various options to effectuate Council's policy to protect residents from second -hand
smoke, while preserving the full tenancy rights of all existing residential tenants. In
forming its recommendations and proposed ordinance, staff met and consulted with the
Rent Control Board, Rent Control staff, the Apartment Association of Greater Los
Angeles, and the City's Homeless Services Administrator, in addition to considering the
thoughts previously expressed by Council and members of the public. These groups
voice a range of concerns which are reflected below.
Discussion
Designate And Disclose Rule
The proposed ordinance requires that all occupants of multi -unit residential properties
designate their units as smoking or non - smoking, and that a document describing the
status of all units be given to all current occupants as well as future prospective
occupants. The primary purposes of this rule are to provide valuable information to
those making decisions about where to live, and to decrease exposure to second -hand
smoke in residential properties by limiting smoking to affirmatively designated units.
Under this law, current occupants of apartments and condominiums would be able to
choose either smoking or non - smoking status for their dwelling unit. The law is not
focused on individual smokers, only units. If a unit is designated non - smoking, then
smoking would thereafter be prohibited in that unit. If a unit is vacated (including a
smoking unit), the unit's designation would be non - smoking for the next occupant and
thereafter.
There are two features of the proposed designate and disclose law that are generally
accepted by tenant and property owner groups as important features of the ordinance.
First, it is vital that current occupants have ample notice and opportunity to designate
the smoking status of their units. Second, apartment owners and homeowners'
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associations must keep updated rosters of all units' status, and make them available to
current and prospective occupants
Prohibition on Smoking In Units for New Occupancies
Staff recommends that Council include in the proposed ordinance an explicit prohibition
against smoking in all units that are designated non - smoking, newly constructed, or
newly vacated. All current tenants who choose to designate their units for smoking
would be exempted. Thus, all current tenants who smoke would thereby be allowed to
continue smoking in their units.
In effect, this rule is nothing more than a means to effectuate the designate and disclose
rule. Without the explicit prohibition, there would be no consequence for smoking in
designated non - smoking units. Conversely, a prohibition on smoking for new
occupancies would be difficult to monitor or enforce without the required information of
the designate and disclose rule. For example, without the required documentation of
non - smoking units at a property, there would be no practical way for a person to know
whether a tenant smoking in a unit was grandparented by the ordinance. The
ordinance's requirement that the designation records be available from the owner on
demand would enable the person to verify whether smoking was permissible in that unit.
Thus the two rules support each other and appear to be mutually necessary.
In staff's discussions with both the Rent Control Board and the Apartment Association's
local chapter, there appeared to be informal consensus that the designate and disclose
rule would work best if accompanied by the in -unit prohibition. The two main concerns
expressed by Rent Control Board members were to grandparent all current smoking
tenants and avoid making smoking a new ground for eviction.
New Hotels
As directed by Council, the proposed ordinance prohibits smoking at all newly
constructed hotels in the City. It was also suggested that this prohibition be added to
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the category of all new residential construction. This is accomplished under the
proposed ordinance since all new residential units would be deemed non - smoking.
Policy Considerations
Council has several policy options to address in considering the proposed ordinance.
First, Council should consider the default status for units whose occupants fail to make
a designation. Staff recommends that the default status be non - smoking, as long as
occupants have had ample opportunity to designate. The proposed ordinance would
require sufficient notice as well as the chance to change a designation after initial
posting.
Second, the City's Homeless Services Administrator and Human Services Division
recommend that any smoking prohibitions inside units not apply to housing used by
individuals who are recovering from other addictions or in transition from homelessness.
Although there is a growing trend to prohibit smoking in homeless shelters (including in
the City of Pasadena's new ordinance), this is seen as conflicting with the City's
housing -first policy. Some Council members and other staff have stated that in Santa
Monica the policy of housing those people most at risk takes priority over protections
from second -hand smoke. Thus, given the higher incidence of tobacco addiction in the
homeless population, transitional and related housing programs likely should be
exempted from both the designate and disclose rule and the prohibition against smoking
inside units. The proposed ordinance reflects this recommendation.
During Council's last consideration of smoking prohibition, a question was raised about
exempting disabled individuals from any prohibition against smoking inside residential
units. The rationale was that some disabled smokers might not be able to easily go
outside to smoke. Staff recommends against such as exemption. First, all existing
disabled tenants who opt to smoke in their units would be unaffected by the ordinance
as the proposed law would only prohibit smoking in new tenancies. Second, given
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Council's existing policies, the countervailing needs of fellow residents to be free from
second -hand smoke would appear to trump a new occupant's preference to smoke
inside.
Third, discussion by community groups has included the option of requiring the
disclosures for each property to be filed with a government agency, such as the Rent
Control Board, on a regular basis (such as annually). This presumably would increase
awareness of the designations in each unit. However, staff believes (and most groups
staff talked with agree) that such a requirement would create substantial extra
recordkeeping work for both property owners and the government agency, with little
relative benefit. There appears to be a consensus that making disclosures available to
actual and prospective occupants at each property will be sufficient and effective.
As drafted the ordinance requires that all prospective new occupants be given a copy of
the current smoking status roster. Council could also consider requiring that periodic
updated notices be given to all occupants of a property, such as annually. This would
assure more accurate information is given to occupants; but it would also impose an
additional burden on owners. Staff recommends that owners be required to maintain
updated smoking status rosters, but that they only need be provided upon demand by
occupants after the initial disclosure.
Fourth, Council should consider the best procedure and timetable for notifying all
occupants of the new law, the process of conducting the polling and designation and
verifying its accuracy as well as maintaining the records going forward. The proposed
ordinance sets the following timetable:
1. Owner notifies occupants: within 60 days after effective date
2. Occupants designate unit status: within 90 days
3. Owner posts tentative results: within 120 days
4. Occupants make changes to status: within 150 days
5. Owner delivers final results: within 180 days.
Fifth, Council needs to decide whether to include condominiums in the ordinance. Thus
far, Council has included all multi -unit properties in its residential smoking laws. Staff
sees no reason to exclude condominiums from the proposed ordinance.
Enforcement
There are also options as to how the proposed ordinance will be enforced. As to the
designation of units, notice and recordkeeping, the primary onus should be on owners
and homeowners' associations since they are in a unique position to communicate with
all occupants and to maintain records. However, as a matter of standard practice, the
City would conduct extensive outreach and education about the ordinance, and owners
would be cited only if they refused to comply with the law despite prior written notice
and warning (as with existing provisions of the City's smoking laws).
As to violations by people smoking in units that are designated non - smoking, staff
recommends keeping in place the mechanisms already in place for other smoking
violations at multi -unit properties: violations must be addressed first with an informal
effort to resolve the problem. If that fails, an action could be brought in small claims
court for a specified amount of damages. As with other areas of smoking enforcement
in the City during the past twelve years, education, awareness and informal resolution
should be the main means of effectuating the law. These have proven effective in the
past.
Council could also consider direct enforcement of the ordinance by City staff, but there
are no obvious available methods. The Office of Sustainability and the Environment
might be a logical candidate to perform in- person enforcement, but they lack available
personnel for the job and would need to add employees to do so. Also, it is not clear
how staff would gather evidence sufficient to prove violations in court. Most likely any
City department that performed enforcement duties would rely on written notice and
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deterrence more than direct legal action. Although many California cities empower
employees to enforce residential smoking laws, as of this writing staff is not aware of
any city where employees have actually begun issuing citations and gathering evidence
of violations inside residential units. Thus, at least for the present, staff recommends
staying with the existing enforcement mechanisms, as described above.
However, if Council wishes to make criminal remedies available, staff recommends
designating inside -unit violations as infractions, which would be consistent with the
City's various public place restrictions. This option was discussed at the June 28
meeting. If Council wishes to make smoking in designated non - smoking units an
infraction, staff sees no downside to including the new violations in the general list of
Municipal Code Section 4.44.020, which lists the places where smoking is prohibited.
Another enforcement option is to require that the non - smoking status of a unit be a
required lease term for applicable rental units, as many California cities have done.
Thus, units that are designated non - smoking would have a lease requirement inserted
to that effect. In Santa Monica, both tenants' rights groups and the Apartment
Association oppose this option. Tenant advocates fear misuse of any potential ground
for eviction, while many landlords do not want the added responsibility of enforcing
smoking rules inside units. Staff recommends not including any lease requirement as to
existing tenants. For future tenancies, on the other hand, staff sees no practical reason
why smoking should not be a required lease term. However, if Council is inclined to
address future tenancies in this manner, staff recommends a gradual approach,
beginning with existing remedies for enforcement at least until these rules become more
widely known. Later, if it is seen as helpful, Council could consider broadening the
remedies to include required lease terms beginning with new tenancies.
As drafted, the proposed ordinance retains the City's prior policy not to make smoking a
ground for eviction, though landlords retain the right to do so in new tenancies.
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Council questions
Council sought information about S.B. 332, which was recently signed into law as Civil
Code Section 1947.5. That law makes no change to the rights and duties of tenants
and landlords in Santa Monica. It restates the existing right of property owners to
prohibit smoking in rental units, while expressly leaving untouched local rules that
govern in the area. In Santa Monica, by regulation, owners of rent controlled units
cannot make unilateral changes to a tenancy (such as prohibiting smoking) and then
evict a tenant for violating them. This rule is unchanged by S.B. 332. Non -rent-
controlled tenants have no such protections to begin with, so they too are unaffected by
S.B. 332.
Council also asked for updated Los Angeles County data about smoking. The previous
staff report stated that 33 percent of low- income adults in the county smoked. Staff has
verified from L.A. County sources that the correct figure is 14.3 percent.
Alternatives
Council could consider various alternatives to the proposed ordinance as described in
more detail above.
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Financial Impacts & Budget Actions
No financial impacts will result from the adoption of this ordinance. All costs of outreach
regarding the new rules will be borne by the City Attorney's Office or other departments
conducting the outreach.
Prepared by: Adam Radinsky, Head, Consumer Protection Unit
Paula Rockenstein, Consumer Affairs Specialist
Approved:
am.jjOT�bf'LP�
Mars41onerjuitne
City Attorney
Attachment:
A: Proposed Ordinance
Forwarded to Council:-
Rod Gould
City Manager
City Council Meeting: December 13, 2011 Santa Monica, California
ORDINANCE NUMBER (CCS)
(City Council Series)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA MONICA AMENDING CHAPTER 4.44 OF THE SANTA MONICA MUNICIPAL
CODE ON SMOKING TO EXPAND PROTECTIONS FROM SECOND -HAND SMOKE
IN MULTI -UNIT RESIDENTIAL PROPERTIES AND NEW HOTELS
WHEREAS, more than 440,000 people die in the United States from tobacco-
related diseases every year, making it the nation's leading cause of preventable illness;
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WHEREAS, in 2006 the United States Surgeon General issued a landmark
report describing "massive and conclusive scientific evidence" that environmental
tobacco smoke (ETS) causes premature death and disease in adults and children,
including cancer, cardiovascular disease, and asthma; and
WHEREAS, the Surgeon General's Report concluded that "there is no risk -free
level of exposure to secondhand smoke" and that exposure to ETS has "immediate
adverse effects" on the cardiovascular system; and
WHEREAS, the Surgeon General's Report concluded that public smoking laws
are having the effect of improving public health and also reducing the incidence of
smoking generally; and
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WHEREAS, the Centers for Disease Control estimates that secondhand smoke
exposure causes as many as 300,000 children in the United States to suffer from lower
respiratory tract infections such as pneumonia and bronchitis, exacerbates childhood
asthma, and increases the risk of acute, chronic middle ear infection in children; and
WHEREAS, the United States Environmental Protection Agency (EPA) has
classified second -hand smoke as a Group A carcinogen, the most dangerous class of
carcinogens; and
WHEREAS, the EPA has concluded that second -hand smoke causes coronary
heart disease in non - smokers; and
WHEREAS, exposure to ETS is the third leading cause of preventable death in
this country, killing over 52,000 non - smokers each year, including 3,000 deaths from
lung cancer; and
WHEREAS, second -hand smoke is especially hazardous to particular groups,
including those with chronic health problems, the elderly, and children; and
WHEREAS, the California Air Resources Board (GARB) has officially identified
second -hand smoke, or ETS, as a "toxic air contaminant' pursuant to Health and Safety
Code Section 39660, providing the most authoritative finding to date of the health
dangers of ETS in California; and
WHEREAS, the CARB report noted the following health statistics resulting from
second -hand smoke exposure each year in the state of California:
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• Over 400 additional lung cancer deaths
• Over 3,600 cardiac deaths
• About 31,000 episodes of children's asthma
• About 21 cases of SIDS
• About 1,600 cases of low birth weight in newborns
• Over 4,700 cases of pre -term delivery; and
WHEREAS, most Californians do not smoke and a majority favor limitations on
smoking in multi -unit residences; and
WHEREAS, increased protections from ETS in multi -unit residential properties
are necessary to protect the public health, safety and welfare of Santa Monica
residents; and
WHEREAS, a growing number of residents and owners in Santa Monica are
requesting greater protections from ETS at multi -unit residential properties including
designation and disclosure of the smoking status of individual units; and
WHEREAS, the City Council wishes to reduce residents' exposure to ETS from
other units in multi -unit properties while preserving the ability of current occupants to
smoke inside their units; and
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WHEREAS, there is growing demand among consumers and businesses for
smoke -free hotels in the City; and
WHEREAS, an ever - growing number of California cities already regulate ETS in
the manners described below.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA
DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Section 4.44.020 of the Santa Monica Municipal Code is hereby
amended to read as follows:
Section 4.44.020 Prohibitions.
(a) Smoking in Specific Locations. It shall be unlawful to smoke in the
following places:
(1) Any elevator;
(2) Any public park;
(3) Any public beach;
(4) Anywhere on the Santa Monica Pier;
(5) Any outdoor service area;
(6) Inside any public building (as that term is defined in Government Code
Section 7596);
(7) Any outdoor dining area;
(8) Within twenty feet of the entrance, exit or open window of any building
open to the public;
(9) The Third Street Promenade;
(10) Any farmers' market;
(11) The property of any public library.
(12) Any hotel for which an occupancy permit is issued on or after February 9,
2012.
(b) Disposal of Smoking Waste. No person shall dispose of any cigarette,
cigar or tobacco, or any part of a cigarette or cigar, in any place where smoking
is prohibited under this Chapter, except in a designated waste disposal container.
(c) Liability of Businesses. No business owner, operator or manager shall
knowingly or intentionally allow smoking in an outdoor dining area that is under
his, her or its control. This law does not require the physical ejection of any
person from the business or the taking of steps to prevent smoking under
circumstances that would involve a significant risk of physical harm.
(d) Posting of Signs. Every business that owns or controls an outdoor dining
area covered under subsection (a)(7) shall post one or more prominent signs in
conspicuous locations to apprise users of the prohibition of smoking in that
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outdoor dining area. Multiple signs must be provided as needed for larger areas
to ensure that signs are readily visible to all users of the area.
(e) Enforcement and Penalties.
(1) Infraction. A violation of this Section is an infraction and shall be punished
by a fine of one hundred dollars for the first violation; two hundred dollars for a
second violation within one year; and five hundred dollars for a third and
subsequent violations within one year.
(2) Nonexclusive Remedies and Penalties. Punishment under this Section
shall not preclude punishment pursuant to Health and Safety Code Section
13002, Penal Code Section 374.4, or any other law proscribing the act of littering.
Nothing in this Section shall preclude any person from seeking any other
remedies, penalties or procedures provided by law.
SECTION 2. Section 4.44.040 of the Santa Monica Municipal Code is hereby
amended to read as follows:
Section 4.44.040 Smoking In Multi -Unit Residential Properties.
(a) Remedy. Any person who smokes in a Multi -Unit Common
Area or in a residential unit designated "Non- smoking" as
described in subsection (c), is subject to an award of damages of
not less than $100 which may be collected by any person in a civil
action, including an action in Small Claims Court. The minimum
damages amount shall increase to $200 for the second violation
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within one year; and to $500 for the third and subsequent violations
within one year.
(b) Notice Required. The landlord or homeowners' association of
every multi -unit residential property shall provide notice of the
remedy in subsection (a) to all affected occupants by posting and
maintaining one or more prominent signs in conspicuous locations,
in each multi -unit common area to ensure that the signs are readily
visible to all users of the area.
(c) Designation of Residential Units' Smoking Status.
(1) All
units in multi -unit
residential
properties including
apartments and condominiums shall be
designated as either
"Smoking"
or "Non - smoking" pursuant
to
this subsection. The
required procedure
for this desiqnation
is as
follows:
(a)
Within 60 days
after the
effective date of this
subsection the landlord or homeowners' association ( "Owner ")
shall provide the occupant of each unit at the property with written
notice asking the occupant to designate the unit as "Smoking" or
"Non - smoking."
(bb) Within 90 days of the effective date of this subsection,
the occupant of each such unit shall deliver to the Owner the.
designation of the unit.
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(c) Within 120 days of the effective date of this
subsection the owner shall notify all units in writing of the
designations for all units. Any occupant wishing to change or
correct his or her unit's status may do so in writing to the Owner
within 150 days of the effective date of this subsection.
(d) Within 180 days of the effective date of this
subsection the Owner shall deliver to each unit the final
designation list for all units at the property.
(2) If an occupant fails to designate his or her unit under the
procedure described above the unit shall be designated "Non-
smoking."
(3) Every unit that becomes vacant after the effective date of
this subsection shall be designated "Non- smoking" regardless of its
prior designation.
(4) Evert/ unit in a new multi -unit residential property for which
an occupancy permit is issued on or after the effective date of this
ordinance shall be designated "Non - smoking."
(5) The owner of every multi -unit residential property shall
maintain a current list of all units' smoking designation and shall
update that list in the event of a unit changing status as described
above.
(6) The owner of every multi -unit residential property shall
provide a copy of the current list of all units' smoking designation
(A) to all new or prospective occupants of the property, and (B) to
any person upon request.
(c) Limitations and Exceptions.
(1) Nothing in this Section may be used as grounds to terminate
a tenancy. Nothing in this section shall render smoking in multi -unit
common areas or in a designated "Non - smoking" unit a violation of
law pursuant to any rental housing agreement.
(2) No action may be brought pursuant to this section unless the
complaining party has first made a good faith attempt to resolve the
situation informally, including written notice of this section and a
written request to cease smoking in the Multi -Unit Common Area at
least 30 days before filing suit.
(3) The property owner, manager, or homeowners' association
may designate a portion of a Multi -Unit Common Area where
smoking is allowed. Any such designated area:
(A) must be located at least 20 feet from any indoor area;
(B) must not include and must be at least 20 feet from play
or recreation areas including but not limited to areas
improved or designated for swimming or other sports;
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(C) must be no more than 25 percent of the total outdoor
area of the premises of the property;(D) must have a clearly
marked perimeter;
(E) must be identified by conspicuous signs; and
(F) must not overlap with any area in which smoking is
otherwise prohibited by this chapter or other law.
(4) The prohibition against smoking in designated non - smoking
units shall not apply to temporary and special needs housing
facilities for people with disabling conditions including addiction to
substances.
(e) A Nonexclusive Remedies and Penalties. Nothing in this
Section shall preclude any person from pursuing any other
remedies, penalties or procedures provided by law.
SECTION 3. Any provision of the Santa Monica Municipal Code or appendices
thereto inconsistent with the provisions of this Ordinance, to the extent of such
inconsistencies and no further, is hereby repealed or modified to that extent necessary
to effect the provisions of this Ordinance.
SECTION 4. If any section, subsection, sentence, clause, or phrase of this
Ordinance is for any reason held to be invalid or unconstitutional by a decision of any
court of competent jurisdiction, such decision shall not affect the validity of the
remaining portions of this Ordinance. The City Council hereby declares that it would
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have passed this Ordinance and each and every section, subsection, sentence, clause,
or phrase not declared invalid or unconstitutional without regard to whether any portion
of the ordinance would be subsequently declared invalid or unconstitutional.
SECTION 5. The Mayor shall sign and the City Clerk shall attest to the passage
of this Ordinance. The City Clerk shall cause the same to be published once in the
official newspaper within 15 days after its adoption. This Ordinance shall become
effective 30 days from its adoption.
APPROVED AS TO FORM:
MARSH� A� JO MOUTH IE
City Aftorney
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