SR-10-02-2012-7ACity Council Meeting: October 2, 2012
Agenda Item: 7A
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 and to Provide Remedies For Smoking In All Units
Designated Non - Smoking
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 units in multi -unit
residential properties, designate new units and newly occupied units as non - smoking,
and provide remedies for smoking in designated non - smoking units.
Executive Summary
The proposed ordinance would make changes to the City's anti - smoking laws as
Council directed. 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.
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 their 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 ( "SHS ") in multi -unit residential
properties, and to explore enforcement options.
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On December 13, 2011, staff returned with an ordinance requiring the designation and
disclosure of the smoking status of all units in multi -unit residential properties and
providing remedies for smoking in non - smoking units. Council directed staff to conduct
further study of various options in this area of regulation and to provide a new update on
legislation and other developments in other California cities. Council also adopted a
more limited ordinance prohibiting smoking in newly constructed hotels.
On July 10, 2012, staff returned with an ordinance requiring the designation and
disclosure of the smoking status of all units in multi -unit residential properties along with
the information Council requested. The ordinance was approved at first reading, with
one amendment: the default status of undesignated units was changed to non- smoking.
On July 24, 2012, at second reading, the ordinance was not adopted. Council directed
staff to conduct further research and outreach to assess the impact of the ordinance
primarily in two areas: condominiums and medical marijuana users. Council directed
staff to return with the same ordinance introduced at first reading on July 10, 2012 along
with the above information. This report supplements the staff report of July 10, 2012.
The proposed ordinance is the same one submitted at that meeting.
Discussion
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. 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 thereafter.
Under the proposed ordinance, when occupants fail to make a designation, their units
would remain undesignated, meaning it would still be acceptable to smoke in such units.
Council could consider changing this status to "smoking" for the sake of simplicity.
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Condominiums
Input from condominium managers
To assess the impact of the proposed ordinance on condominium owners, staff
consulted with Joan Urbaniak, Executive Director of the Southern California chapter of
the Community Associations Institute (CAI), a nationwide nonprofit organization that
represents condominium homeowners associations (HOAs). Urbaniak referred staff to
eight managers of various Santa Monica condominium complexes, including some of
the City's largest complexes. These managers oversee around 1,500 units in Santa
Monica. From these sources, staff received the following input about the potential
impact of the proposed ordinance on condominiums.
The managers agreed that compliance with the designate and disclose rule would be
easiest for HOAs that are run by a management company since they routinely handle
HOA paperwork and can most easily compile and produce information about each unit.
Smaller condominium complexes in Santa Monica (e.g., those with five to ten units)
typically do not have such management companies.
Several managers expressed concern that self - managed and smaller HOAs would have
a harder time keeping track of and managing the records, and would be more likely to
lose track of the records over time (for example, when an HOA changes presidents).
There was a concern that new condominium buyers may not be informed of the law's
requirements. One countervailing factor is that over time, as units are newly occupied
and become non- smoking, there will be fewer and fewer smoking units to keep track of.
Council could consider amending the proposed ordinance to require that every non-
smoking condominium unit have a supplemental restriction placed on title, so that the
smoking status of the unit shows up in title searches. The City of Pasadena included a
similar requirement in its recent ordinance prohibiting smoking in all units of multi -unit
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residential properties. The Pasadena law mandates that future purchase agreements
for condominium units refer to the ordinance and attach a copy of the relevant text.
A factor in favor of the proposed ordinance, mentioned by some managers, is that
HOAs already compile and keep information about condominium properties, including
names and information about each owner as well as current bylaws and CC &Rs. In this
sense, the added recordkeeping required by the ordinance would not be unusually
burdensome.
One manager noted that the proposed ordinance would help HOAs effectively protect
members from second -hand smoke, which is challenging even when there are house
rules, by providing a local law they could refer to
Like the landlord groups to whom Staff spoke earlier, the HOA managers expressed a
strong wish not to be required to enforce the smoking law. They want it made clear that
they would not be liable if an occupant violated a no- smoking provision. The proposed
ordinance allows enforcement by any party but does not require owners or HOAs to
redress violations.
One manager voiced concern that the ordinance could make it harder for an owner to
market his or her condominium if smoking is prohibited in the unit. However, based on
input from property owners in recent years, there seems to be a consensus that smoke -
free units and properties are increasingly desirable and more valuable from an
investment standpoint and to minimize potential liability.
Future Outreach To Condominium Associations
Staff has researched the best ways to publicize the new law to condominium HOAs
should Council adopt the proposed ordinance. In addition to using the news media and
direct notice to the public, as are traditionally done, Staff would specifically notify local
HOAs as follows:
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• CAI has provided the contact information for its 384 member HOAs that are
located in Santa Monica. Staff would notify the 384 associations, which represent
thousands of condominium units, using that database.
• Staff would notify CAI and the California Association of Community Managers
(CACM), another organization that represents HOAs, and have them publicize the
ordinance among their Santa Monica members.
• Staff would also utilize the Rent Control Board's mailing to all rental property
owners in the City to notify them of the law.
Medical marijuana users
The California Compassionate Use Act ("CUA"), codified at Health and Safety Code
section 11362.5, is the state law that allows the use of medical marijuana in certain
circumstances. The CUA expressly does not preempt local laws that prohibit "conduct
that endangers others." This would include the proposed ordinance which is designed
to protect residents from the dangers of second -hand smoke, including marijuana
smoke. As a matter of law, then, the CUA would not limit the reach of the proposed
ordinance, and the City would not need to exempt medical marijuana from the
prohibitions of the ordinance.
Staff consulted with the California Department of Public Health, which administers the
CUA. The Department's Medical Marijuana Program takes the position that if smoking
is not allowed at a residential property or unit — whether by house rule or by law — then
medical marijuana is likewise prohibited. In other words, it is given no preference over
tobacco.
A smoking ban would not prohibit medicinal use of marijuana because it can be
consumed in forms that do not create second -hand smoke, such as being cooked into
foods. This would avoid any concern of users violating the proposed ordinance. If a
doctor documented that the user needed to smoke the marijuana, and that the user
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suffered from a disability, then the user potentially could be exempted from the
ordinance
Also, Council can consider allowing the use of medical marijuana in some
circumstances, even in units designated non - smoking. Staff recommends an approach
that parallels the disability standard under the Federal Housing Act. Thus, occupants of
non - smoking units could still smoke medical marijuana if they had a doctor's written
opinion that they suffered a "physical or mental impairment which substantially limits
one or more major life activities," and if the specific accommodation were reasonable
under the circumstances. This standard would generally include the most compelling
examples of medical marijuana use, such as cancer, AIDS, and other serious diseases.
Also, the disability standard is well established in the law in other contexts and staff
already regularly advises the public on the subject.
Staff conferred with a leading medical marijuana defense attorney about the proposed
ordinance. The attorney advocated for a lesser standard than disability to trump the
"non- smoking" designation of a unit under the ordinance, proposing the same standard
as the CUA, i.e., that the user be "seriously ill." Under this approach, anyone with a
medical marijuana card would be allowed to smoke marijuana in a non - smoking unit
despite the requirements of the ordinance, without a doctor verifying actual disability or
need for the specific accommodation.
Another attorney who represents property owners in Southern California and consults
with public entities points out that, even with a doctor's note and a recognized disability,
disabled residents still must abide by local laws. For example, a valid service animal
cannot violate local noise regulations with its barking. In this sense, a case -by -case
approach to smoking exemptions Would be advised.
Council could include in the ordinance an explicit statement of any standards for
medical marijuana use. However, staff recommends leaving this issue out of the actual
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ordinance. The various laws impacting marijuana use are subject to change at the
federal, state, and local level. Also, even under the disability standard, each case is
fact - specific and it would be difficult to codify a clear standard for medical marijuana
use. Rather, legal staff can advise the public regarding the relevant legal standard
(such as disability accommodation), as needed when the issue arises in practice, as it
already does regarding reasonable accommodations in housing and other disability-
related issues.
Finally, some have expressed concerns about privacy in the designation of units as
"smoking" where medical marijuana is concerned. Indeed, a current occupant who
uses medical marijuana (or who may want to in the future) would probably be advised to
designate his or her unit as "smoking" under the proposed ordinance, to avoid additional
legal uncertainty regardless of medical condition. This privacy concern is similar to that
expressed on behalf of smokers generally in previous Council discussions, although
arguably a medical marijuana user might have added reasons not to want neighbors to
know about the smoking.
Apartment owners
Staff previously conducted outreach to the apartment owner community on these
issues. The primary concerns expressed were similar to those of the condominium
managers: they did not want to have to enforce the new law. They also generally were
in favor of reducing smoking at their properties for health and liability reasons.
In addition, on September 12, 2012 staff met with the Board of Directors of the
Apartment Association of Greater Los Angeles. With regard to the proposed ordinance,
they expressed concern over potential liability for landlords if a new tenant experienced
second -hand smoke from a unit that was not previously disclosed as a smoking unit.
They requested clarification that property owners were not liable for mis-desig nations or
violations under the ordinance. They also reiterated their concern that owners not be
responsible to enforce the ordinance.
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Alternatives
Council could consider various alternatives to the proposed ordinance as described in
more detail above.
Financial Impacts & Budget Actions
Adopting this ordinance would result in marginal additional costs for outreach and
communication. The City Attorney's Office, and any other departments conducting
outreach, would cover these costs within existing budgets.
Prepared by: Adam Radinsky, Head, Consumer Protection Unit
Paula Rockenstein, Consumer Affairs Specialist
Approved:
Attachments:
A: Proposed Ordinance
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Forwarded to Council:
Rod Gould
City Manager
ATTACHMENT A
City Council Meeting: October 2, 2012 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
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;
ME
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:
• Over 400 additional lung cancer deaths
• Over 3,600 cardiac deaths
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• 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
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:
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SECTION 1. 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
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 designation is as follows:
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(A) Within 60 days after the effective date of this
subsection, the Owner (defined as the landlord in the case of
apartments and the homeowners' association in the case of
condominiums) 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."
(B) 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.
(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 the final designation list for all
units at the property (i) to each unit, and (ii) to all non - occupying
owners of condominium units.
(2) If an occupant fails to designate his or her unit's smoking
status under the procedure described above, the unit shall be
deemed undesignated for the remainder of that occupancy_
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(3) Every unit that becomes vacant after the effective date of
this subsection shall thereafter be designated "Non- smoking"
regardless of its prior designation.
(4) Every 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 shall maintain a current list of all units' smoking
designations and shall update that list in the event of a unit
changing status as described above.
(6) The Owner shall provide a copy of the current list of all units'
smoking designations (A) to all new or prospective occupants of the
Property, and (B) to any person upon request.
(d) (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 desiqnated "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.
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(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;
(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 and remedy for 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.
(5) For multi -unit properties in which smoking is already
prohibited in all units, the designation requirements of this section
shall not apply.
(e) M Nonexclusive Remedies and Penalties. Nothing in this
Section shall preclude any person from pursuing any other
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remedies, penalties or procedures provided by law. Nothing in this
Section limits the ability of property owners to restrict smoking in
residential units as otherwise allowed by law.
SECTION 2. 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 3. 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
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 4. 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: