Loading...
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. 1 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. Pj 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 3 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: 12 • 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 5 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 0 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. 7 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 M 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 1 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 2 • 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: 3 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: M (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_ 5 (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. 0 (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 7 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: