SR-03-19-2013-13BMarch 19, 2013
CITY CLERK'S OFFICE - MEMORANDUM
To: City Council
From: Councilmember McKeown
Date: March 19, 2013
13 -13: Request of Councilmember McKeown that the Council go on record in
opposition to AB746 (Levine), which would prohibit smoking in all indoor
areas of multi - family dwellings, including within the units of existing tenants
otherwise protected by rent control and/or other local housing security and
stability measures, such as the recently - passed Measure RR provisions of our
City Charter, and which further would make non - compliance with the smoking
prohibition a criminal infraction and thereby make smokers subject to
eviction.
March 19, 2013
CALIFORNIA LEGISLATURE- 2013 -14 REGULAR SESSION
ASSEMBLY BILL No. 746
Introduced by Assembly Member Levine
February 21, 2013
An act to add Article 4 (commencing with Section 118960) to Chapter
4 of Part 15 of Division 104 of the Health and Safety Code, relating to
smoking.
LEGISLATIVE COUNSEL'S DIGEST
AB 746, as introduced, Levine. Smolcing: prohibition in multifamily
dwellings.
Existing law regulates the smoking of tobacco in various public places,
prohibits the smoking of tobacco in a private residence that is licensed
as a family day care home during its hours of operation and in those
areas of the facility where children are present, and authorizes a landlord
to prohibit the smoking of tobacco in the building or on the property.
This bill would prohibit the smoking of a cigarette or other tobacco
products in all areas of multifamily dwellings, except those areas
designated as areas where smoking is permitted, as specified. This bill
would define, for the purposes of these provisions, multifamily dwellings
to mean residential property containing 2 or more units with one or
more shared walls, floors, ceilings, or ventilation systems. This bill
would provide that any person who violates the requirements of the bill
is guilty of an infraction. By creating a new crirme, this bill would impose
a state - mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the state.
Statutory provisions establish procedures for making that reimbursement.
99
AB 746
—2—
This bill would provide that no reimbursement is required by this act
for a specified reason.
Vote: majority. Appropriation: no. Fiscal cormnittee: yes.
State - mandated local program: yes.
The people of the State of California do enact as follouvs:
SECTION 1. Article 4 (commencing with Section 118960) is
added to Chapter 4 of Part 15 of Division 104 of the Health and
Safety Code, to read:
Article 4. Smoking in Multifamily Dwellings
7 118960. (a) The smoking of a cigarette, as defined in Section
8 104556, or other tobacco product is prohibited in the units and all
9 other areas of new and existing mulfifamily dwellings, except those
10 areas that have been designated pursuant to subdivision as areas
11 where smoking is permitted (c).
12 (b) For the purposes of this section, "multifamily dwelling"
13 means residential property containing two or more units with one
14 or more shared walls, floors, ceilings, or ventilation systems.
15 (c) The landlord, property manager, building owner,
16 homeowners' association, or other equivalent authority may
17 designate an outdoor area where smoking is permitted if the area
18 meets all of the following criteria:
19 (1) The area is located at least 20 feet from any unit or enclosed
20 area where smoking is prohibited.
21 (2) The area does not include, and is at least 100 feet from,
22 unenclosed areas primarily used by children and unenclosed areas
23 with improvements that facilitate physical activity including
24 playgrounds, swinuning pools, and school campuses.
25 (3) The area includes no more than 10 percent of the total
26 enclosed area of the multifamily dwelling for which it is
27 designated.
28 (4) The area has a clearly marked perimeter and is identified by
29 conspicuous signs.
30 (5) The area is completely within a confined area.
31 (6) The area does not overlap with any enclosed or unenclosed
32 area in which smoking is otherwise prohibited.
99
-3— AB 746
1 (d) Any person who violates this section is guilty of an infraction
2 and shall be punished by a fine not to exceed one hundred dollars
3 ($100) for each violation.
4 (e) This section shall not be construed to preempt a city or
5 county fi-om enacting or enforcing an ordinance relating to smoking
6 in multifamily dwellings if the ordinance is more stringent than
7 this section.
8 SEC. 2. No reimbursement is required by this act pursuant to
9 Section 6 of Article XIIIB of the California Constitution because
10 the only costs that may be incurred by a local agency or school
11 district will be incurred because this act creates a new crime or
12 infraction, eliminates a crime or infraction, or changes the penalty
13 for a crime or infraction, within the meaning of Section 17556 of
14 the Government Code, or changes the definition of a crime within
15 the meaning of Section 6 of Article XIIIB of the California
16 Constitution.
M
99
AB 746 Assembly Bill - Status
CURRENT BILL STATUS
MEASURE : A.B. No. 746
AUTHOR(S) Levine.
TOPIC Smoking: prohibition in multifamily dwellings.
HOUSE LOCATION ASM
TYPE OF BILL :
Active
Non- Urgency
Non - Appropriations
Majority Vote Required
State - Mandated Local Program
Fiscal
Non -Tax Levy
LAST HIST. ACT. DATE: 02/22/2013
LAST HIST. ACTION From printer. May be heard in committee March 24.
TITLE An act to add Article 4 (commencing with Section 118960)
to Chapter 4 of Part 15 of Division 104 of the Health
and Safety Code, relating to smoking.
3/3/13 9:14 PM
http: //w .leginfo.ca.gov /pub /13 -14 /bill /asm /ab_ 0701 - 0750/ ab _746_bill_20130222_status.html Page 1 of 1
AB 746 Assembly Bill - History
COMPLETE BILL HISTORY
BILL NUMBER : A.B. No. 746
AUTHOR : Levine
TOPIC : Smoking: prohibition in multifamily dwellings
TYPE OF BILL :
Active
Non - Urgency
Non - Appropriations
Majority Vote Required
State- Mandated Local Program
Fiscal
Non -Tax Levy
BILL HISTORY
2013
Feb. 22 From printer. May be heard in committee March 24.
Feb. 21 Read first time. To print.
3/3/13 9:15 PM
http: //w .leginfo.ca.gov /pub /13 -14 /bill /asm /ab_0701- 0750/ ab _746_bill_20130222_history.html Page 1 of 1
Subject: Congratulations!!!
Reply -To: "Smoke Free Apartments" < esther @smokefreeapartments.org>
Last night, Tuesday, Oct. 23, without any discussion, the Santa Monica
City Council passed a housing ordinance that could be a model for other
cities, especially cities with rent control.
What the ordinance requires:
1. All new apartment and condo buildings to be totally non - smoking
including common areas, balconies /patios and units.
2. All newly vacant units in apartments and condos to be non - smoking.
3. Landlords are required to conduct a poll of existing residents asking
them whether they want their unit to be considered smoking - permitted or
non - smoking. If tenants don't respond, their units will be considered
" Undesignated."
4. Landlords are required to provide potential tenants with a chart or some
sort of indication of where the smoking permitted, non - smoking and
undesignated units are located in the building. Condo Boards, owners
and /or Realtors would need to do the same.
5. The city will provide all landlords with a document explaining the new
law. The document will include information about resources for stopping
smoking. It will also contain a phone number to call the city for additional
information. Landlords are required to provide this document to existing
tenants and prospective tenants. Condo boards /property management
companies would need to do the same.
The down side is that the city will not enforce the law. Like a lot of CA cities,
Santa Monica is hurting financially. Another down side is that
landlords are not permitted to evict tenants for
smoking. Also, landlords are not required to give new tenants a lease
which requires no smoking. However, if a landlord does provide a no
smoking lease to a new tenant, the landlord could evict that tenant for
smoking and breaking the lease.
Another positive consideration has to do with Fair Housing Laws. If a
tenant requests a reasonable accommodation under fair housing laws, that
is, a move to another unit which is not being exposed to tobacco smoke, it
is possible once the law is in full force that the accommodation could be
made. If the landlord has access to large numbers of units, it should be
possible for a person to be moved to a unit that is not being exposed to
tobacco smoke. In addition, fair housing laws require if a person is being
moved as a reasonable accommodation, that person should retain his or
her original rent. The rent should not be raised in the new unit because
that would be a conflict with fair housing laws.
After last night's vote, Councilmember McKeown stated loudly that he
could not see how this law would help existing tenants. Please feel free to
send an a mail to him at kevin@mckeown.net
1. The New Housing Law will help existing tenants. Existing tenants will not
have to fear that someone who smokes will move into a neighboring unit.
2. Once the law is in full force, existing tenants who are currently suffering
from a neighbor's tobacco smoke could request a reasonable
accommodation under fair housing laws to be moved into a unit that is not
being exposed to tobacco smoke and maintain their existing rent.
We hope you will send e mails of thanks to the councilmembers who
supported the ordinance:
richard.bloom(a)sm oq v.net Richard is the hero because he brought back
the ordinance before the election. He is running for the Assembly and this
decision could impact his chances.
robert.holbrool<(asmgov.net Robert has announced that he will be the
champion when this issue comes back to the city council.
terry.odaV(a)sm oq v.net Terry is our hero because he convinced the
leaders of Santa Monicans for Renters Rights to accept the ordinance and
even to come to the city council mtg. and support it.
bobby.shriver@smgov.net Bobby was also our champion but wanted
more in the ordinance than the rest of the council members were willing to
do. For an unexplained reason, he was not in his seat when the vote was
taken for the second reading. However, for many months he "kept the heat
on the other council members" to do something about the problem of
drifting tobacco smoke in apartments and condos.
Thank you for reading all of this. Please save the date: Thursday,
November 15 from 6:30 pm to 8:30 pm. We will be celebrating the new
law with a pot luck party at the home of Dr. Trisha Roth, the Shores,
2800 Neilson Way, Apt. 901 in Santa Monica.
Esther Schiller, S.A.F.E. Smokefree Air For Everyone
818- 363 -4220
Esther Schiller, Director
Smokefree Apartment House Reg istrywww .smokefreeapartments.orq 818-
363 -4220 Please make note of my new email address
esther(a)smokefreeapartments.orq
MAR 19 2013
Prom:
SM Democrats
To:
Council Mailbox
Cc:
Gleam Davis; Robert Holbrook; Kevin McKeown Fwd; Pam OConnor: Terry O'Day; Tony Vazquez; Ted Winterer;
Clerk Mailbox; Jay Johnson
Subject:
AB746 and Smoking in Santa Monica
Date:
Tuesday, March 19, 2013 3:07:21 PM
Attachments:
smokinabill.ocif
Dear Mayor O'Connor and Council Members,
Please read the attached letter re: AB 746 and Santa Monica Democratic
Club opposition.
Thanks you,
Jay Johnson
President, Santa Monica Democratic Club
( -C?
MAR 19 2013
SANTA MONICA
DEMOCRATIC r
Santa Monica, Cilifornii
Mayor O'Connor and members of the Santa Monica City Council:
On behalf of the Executive Board of the Santa Monica Democratic Club, we urge the city council to
present notice of opposition to the State Assembly regarding AB746 for the following reasons:
1. Last October, the City Council listened to recommendations by staff, heard comments made by
concerned residents, deliberated and came to a conclusion on the issue of smoking in multi - dwelling
homes. If AB 746 is passed, it will nullify the balanced approach the City Council reached because it will
preempt the city ordinance.
Under AB 746, it is a crime for any person to smoke in all areas of a multi- dwelling residence except
those areas specifically designated as smoking areas. On its face, AB 746 states that all occupied multi-
family dwellings, regardless of "designation," will be considered a non - smoking area. Rules of statutory
construction and legislative intent support this conclusion.
Furthermore, any residence in a multi - family dwelling that is identified as "undesignated" under the
Santa Monica ordinance would also be a non - smoking area under AB 746. It follows that under AB 746,
NO multi - dwelling residence can be designated as a "smoking residence."
2. Most importantly, being convicted of this crime could be devastating for residents. Since
smoking will be deemed an illegal activity under AB 746, a conviction could subject a tenant to eviction
pursuant to Article XXIII, Section 2304(a)(4) (non -rent controlled rental units) and Article XVIII, Section
1806 (a)(4) (rent controlled rental units) of the City Charter.
3. Of note, since AB 746 does not specifically exempt government units or government subsidized
units, they too would be subject to enforcement of its provisions.
4. Lastly, if AB 746 is passed, Santa Monica will not be reimbursed for enforcement or
administration of this law. As approximately 70% of Santa Monica residents live in multi - family
dwellings, this law would have a negative effect on city coffers.
Simply put, AB 746 goes too far.
Due to the devastating effect AB 746 could have on Santa Monica residents as written, the Executive
Committee of the Santa Monica Democratic Club requests that the City Council submit notice of
opposition to the State Assembly regarding AB 746.
Very Truly Yours,
Jay Johnson
President, Santa Monica Democratic Club
From: Sonia Ramos
To: Pam OConnor; Pam OConnor (mayorsantamonica(o)omail.com); Gleam Davis: Terry O'Day; Kevin McKeown
Fwd; Tony Vazquez; Ted Winterer; Robert Holbrook
Cc: Clerk Mailbox
Subject: FW: Item 13 -B on tonight "s council agenda: AB 796
Date: Tuesday, March 19, 2013 5:11:35 PM
Attachments: imaae002.ona
Importance: High
Council — FYI
Clerks — Add to 3/19/13
Thanks,
Sonia
From: Kimberly Amazeen [ mailto :kimberly.amazeen @lung.org]
Sent: Tuesday, March 19, 2013 3:29 PM
To: Kevin McKeown
Cc: Pam OConnor; Gleam Davis; Terry O'Day; Tony Vazquez; Sonia Ramos
Subject: Item 13 -B on tonight's council agenda: AB 746
Importance: High
Dear Council Member McKeown,
Item 13 -B on your council agenda for tonight has come to our attention with regard to Assembly
Bill 746. The American Lung Association in California is sponsoring this legislation to protect
families across California from drifting secondhand smoke.
We understand your concerns regarding the enforcement language given the rent control
protections in Santa Monica. However, we urge you to reconsider your vote tonight to oppose the
bill, and respectfully request you postpone the vote until later date.
At this point the enforcement provisions for AB 746 are still a work in progress. Both Assembly
Member Marc Levine, author of AB 746, and the Lung Association are considering how to best draft
language to implement the legislation in rent control communities across California.
We have been very proud and excited to support the work that Santa Monica has done to protect
residents in multi -unit housing from drifting secondhand smoke. Opposition from a community like
yours that has been a leader on this issue could hamper our ability to provide these same much-
needed protections to families across California.
We urge you to postpone this vote until the details of AB 746 can be fully worked out. I would also
like to make myself available to you and your colleagues on the Council for any further discussion
about the bill. My contact information is below and I would welcome the opportunity to speak with
you directly.
Sincerely,
Kimberly Amazeen
1,_�r
MAR 19 2013
Kimberly Amazeen I vice President, Programs & Advocacy
American Lung Association in California
15311 Street, Suite 201, Sacramento, CA 95814
Direct: 916.585.7670 Cell: 916.716.0717 Fax: 916.442.8585
I<imberly.Amazeen(@Iung.org I www.lung.org /california
Please consider the environment and do not print this e-mail unless you really need to.
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