City Council Meeting: October 14,
2008
Agenda Item: 7-F
To: Mayor and City Council
From: Marsha Jones Moutrie, City
Attorney
Subject: Ordinance Amending The Anti-Smoking
Law To Prohibit Smoking In Multi-Unit Residential Common Areas and To Create a Tobacco
Retailer Licensing Program; Resolution Urging Local Pharmacies Not To Sell Or
Promote Tobacco Products; and Informational Update On Other Potential Areas of
Smoking Regulation In Multi-Unit Residential Properties
Recommended
Action
Staff recommends that
Council consider introducing for first reading the attached proposed ordinance
and adopt the attached non-binding resolution. Staff also seeks Council
direction for possible additional areas of tobacco regulation as described
below.
Executive
Summary
The
proposed ordinance would do two things. It would amend
the City’s anti-smoking ordinance to prohibit smoking in all indoor and outdoor
common areas at multi-unit residential properties. It also would create a
tobacco retailer licensing program. There is no significant cost to the
City associated with either proposed ordinance or with the proposed non-binding
resolution. However, the ban on smoking
in outdoor common areas raises significant issues which warrant careful
consideration, including the rights and expectations of existing tenants and
difficulties of enforcement. The report also provides
information requested by Council on local feedback to Staff inquiries regarding
possible further regulation of smoking in multi-unit residential properties.
Background
Following public discussion at its meeting of April 8, 2008,
Council directed staff to prepare an ordinance amending the City’s anti-smoking
ordinance to prohibit smoking at outdoor common areas of multi-unit residential
properties; and to create a tobacco retailer licensing program. Council also
directed staff to prepare a non-binding resolution urging local pharmacies not
to sell tobacco products. Finally, Council directed staff to collect public
opinion and feedback concerning possible additional regulation of smoking at
multi-unit residential properties.
Discussion
A. Proposed Ordinance
Prohibition of Smoking In Multi-Unit Residential Common
Areas
Pursuant to Council’s direction the attached proposed ordinance
would prohibit smoking at all common areas of multi-unit residential
properties. Staff also recommends allowing property owners to designate a
smoking location in common areas (with certain requirements), as reflected in
the proposed ordinance. Council directed staff to consider this approach. Based on public feedback and approaches used
by other cities, allowing (but not requiring) designated smoking areas appears
a fair and reasonable compromise to accommodate smoking under certain
circumstances where it is least likely to impact other residents. The proposed
ordinance adopts the same standard used by the City of
The proposed ordinance covers both indoor and outdoor common areas.
Most if not all indoor common areas already are covered by
There are other policy issues for Council’s consideration in
approaching this ordinance. First, some members of the public have questioned
whether the ordinance would include all multi-unit properties (including
condominiums) or whether it would be limited to non-owner-occupied rental
properties. It appears that practical and legal issues would be somewhat more
complex at condominiums. On the other hand, owner-occupied condominiums would
not involve issues of tenants’ rights which make apartment smoking regulation
more complex from a policy perspective. The proposed ordinance applies to all
multi-unit residential properties and makes explicit the inclusion of
condominiums.
Second, Rent Control Board staff raised the issue that the ability
of a tenant in a controlled unit to smoke in outdoor common areas might in
certain cases be deemed by the Board a “housing service” that could not
unilaterally be taken away by the landlord or used as the basis for eviction
under the rent control laws. If Council legislates a prohibition on smoking it
would not be the landlord taking unilateral action against the tenant. However,
this issue does raise the question of whether the ordinance might impact the existing
rights of smoking tenants. Unlike other areas of residential smoking
regulation, with the common areas it would be difficult to create a grandfathering
exemption for existing tenants.
Third, as is crucial with all potential areas of residential
smoking regulation, Council needs to consider the appropriate means of
enforcing the regulation of smoking in common areas. Staff elicited public opinions
and ideas on this subject. Based on this input and the laws already adopted by
other cities, the following are possible forms of enforcement for Council to
consider:
• Private right of
action.
• Declaring smoking a
nuisance. Some cities have declared
second-hand smoke a nuisance. Doing this in
• Other landlord
remedies. Council could consider
other remedies for landlords without declaring second-hand smoke in common
areas a nuisance. For example, multiple warning notices could be required before
landlords could take action to evict a recalcitrant tenant.
• Infraction. As with other violations of
Whatever enforcement approach Council takes, it is vital to
consider the practical ramifications for landlords, smoking tenants, and
non-smoking tenants. Remedies and the effect of the law on smoking tenants’
rights and tenancies need to be considered and carefully spelled out in the
ordinance. Landlords and their organizations have expressed concern about landlords’
potential liability to non-smoking tenants if they fail to take action against
smokers; they also expressed concern that they not be seen as violating tenants’
rights laws if they take action against smoking tenants. Rent Control Board
staff and a representative of Santa Monicans for Renters Rights expressed
concern that any regulation not undermine the existing rights or tenancies of
tenants in controlled rental units. They also expressed concern that, even if
existing smoking tenants are protected under the law, that some unscrupulous
landlords may still use any anti-smoking regulation as a pretext for harassment
of tenants in controlled units.
On the subject of potential owner responsibilities, Council could
consider requiring landlords to serve notices of the law to all tenants; or to
post no-smoking signs.
Under existing local law, it is not clear whether a landlord can
evict a tenant in a controlled unit for smoking. The potential legal arguments
available to a landlord to do so are highly fact-specific and would depend on
the details of each case. The potential arguments are: (1) the tenant “has
committed a material and substantial breach of an obligation or covenant of his
or her tenancy”; (2) the tenant is committing a nuisance; (3) the tenant is “creating
a substantial interference with the comfort, safety, or enjoyment of other
occupants or neighbors”; or (4) the tenant is “convicted of using or expressly
permitting a controlled rental unit to be used for any illegal purpose.”
The proposed ordinance includes a separate right of action to redress
violations in court. This could be utilized by another tenant, a landlord, the
City, or others. The ordinance also includes residential common areas in the general
list of locations where smoking is prohibited.
Tobacco Retailer Licensing Program
Pursuant to Council’s direction the attached proposed ordinance
would create a tobacco retailer licensing program in
The ordinance includes most of the features present in similar
ordinances in other
• Requires all sellers of
tobacco products to have and display a special license.
• Prohibits tobacco
product sales to minors and violating other related laws.
• Provides for suspension
of the license after the first and second violations within five years; and
revocation of the license after the third violation within five years.
• The administration,
enforcement, and education of the program is funded by the annual fees.
Staff has consulted with the Finance and Police Departments about
administration and enforcement of the ordinance, respectively. Staff recommends
that the City Attorney’s Office oversee the enforcement of the program with the
assistance of Police for the periodic undercover stings regarding underage
sales of cigarettes. Staff also recommends that Finance oversee the
administration of the program.
The two main policy options in this area are which prohibitions to
include; and how to address repeated violations. The prohibitions in the
proposed ordinance are fairly standard in the many similar ordinances
throughout the state. The remedies for repeat violations vary widely in other
cities. Most cities provide for eventual revocation of the license after
repeated violations within a prescribed period (typically three to four
violations within a five-year period). However, the effects of revocation are
diverse. Some cities allow the offending business to re-apply within as little
as sixty days. Others appear to impose a permanent ban upon revocation. Other
cities allow the business to re-apply, but not until a period of five years or
sometimes less has elapsed. Under the proposed ordinance a revoked licensee
cannot re-apply for five years.
Council could consider adding the sale of tobacco paraphernalia to
the ordinance. The proposed ordinance covers only tobacco products.
Non-Binding Resolution For Local Pharmacies
Pursuant to Council’s direction staff has prepared the attached
resolution supporting local and statewide laws that prohibit the sale and
promotion of tobacco products in pharmacies and drugstores; and urging local
pharmacies and drugstores not to sell tobacco products. The American Lung
Association has offered to send a letter to each affected business in
B. Informational Update On Potential Options In Residential
Smoking Regulation
Public Opinions On Residential Smoking Regulation
Pursuant to Council’s direction staff solicited opinions, ideas
and questions from the public and various groups on the subject of multi-unit
residential smoking regulation. Staff solicited feedback from and invited to a
public meeting the following groups: the Rent Control Board, Housing Division, Santa
Monicans for Renters’ Rights, Apartment Association of Greater Los Angeles
(AAGLA), Action Apartment Association, Western Center on Law And Poverty, Legal
Aid Foundation of Los Angeles, Healthier Solutions, Smoke-Free Apartment House
Registry, and each of the local Neighborhood Associations. Staff also issued a
press release and held a public meeting at the Main Library on May 29 which was
attended by approximately 25 people.
Staff received 34 emails and letters and 15 telephone calls on the
subject. These responses are summarized below.
Representatives of Smoke-Free Apartment House Registry expressed a
strong need to protect tenants from second-hand smoke in residential
properties. They outlined a series of potential measures to address the
problem. (See Attachment C.) Individual tenants also wrote or spoke at the
meeting to express similar concerns with the ill effects they have experienced
from the second-hand smoke of other tenants.
Rent Control Board staff and a representative of Santa Monicans
for Renters Rights expressed reluctance to adopt any form of residential
smoking restrictions due to the concern that they could undermine the rights of
existing tenants in controlled rental units. They also expressed concern that
unscrupulous landlords might use any anti-smoking regulation as a pretext for
harassing tenants. The chairperson of the Rent Control Board wrote to express
strong opposition to any form of residential smoking regulation. (See
Attachment C.) Although the full Board has not yet considered the issue in the
wake of Council’s latest inquiry, the Board did consider the issue at one of
its meetings in 2007 and appeared to unanimously, albeit informally, opposed
any such legislation. The Housing Commission plans to address the issue at its
June 19, 2008 meeting.
A representative of the Western Center of Law and Poverty
expressed opposition to any form of residential smoking regulation, arguing
that individuals who are poor, disabled, or of color tend to both rent and
smoke at higher rates than the general population. Thus, the argument goes, any
regulation on residential smoking would have a disparate impact on each of
those groups – not only existing tenants but future applicants as well.
A representative of AAGLA and some individual landlords and
property managers expressed concerns that enforcement remedies and procedures
be clearly and fairly spelled out in any future legislation. Some landlords
opposed any regulation of rental properties as a violation of property rights.
Others welcomed potential regulation.
In addition to these general views, staff solicited opinions
concerning a series of specific areas for potential residential smoking
regulation. The following is a summary of the areas discussed along with any
specific public input:
• Designate and disclose. This
approach requires owners to disclose to all future renters or condominium
buyers which units allow smoking and which do not. All new occupants of a
non-smoking unit would be barred from smoking. There are various ways to
conduct the unit-designation process. Some members of the public urged that
under this approach, non-smoking units be contiguous to each other. A tenants’
rights advocate opposed creating any new grounds for eviction. Landlords voiced
concerns of bureaucracy and potentially inaccurate information being given to a
landlord who then might be liable for passing it on.
• Future tenancies. This rule
prohibits smoking in all residential units occupied under new leases as of a
certain date. Some cities require lease clauses to this effect. Others mandate
a percentage of units that must be smoke-free by a particular date. Landlord
representatives expressed fear over becoming the enforcers of this rule and a
desire to remove the temptation of unscrupulous landlords to evict tenants by
leaving enforcement to others. Some residents suggested not limiting smoking
bans to future tenants in light of existing problems.
• New housing construction. Under this model, smoking is banned either in all newly constructed multi-unit residential properties in a city, or in a percentage of new units. This regulation can also be phased in over time.
• Balconies and patios. According
to the Smoke-Free Apartment Registry, more than half of all complaints they
receive from tenants are about smoke entering their units from outside
balconies and patios of other tenants. They urge that if smoking is prohibited
inside any units that balconies and patios also be covered.
• Declare smoking a nuisance. As
described above, this would facilitate the eviction of tenants whose smoking
harms others and it would also facilitate private actions by tenants. There
appeared to be widespread support for this approach at the public meeting
although Rent Board staff voiced continuing concern that existing tenants’
rights not be undermined. Also the SMRR representative suggested that it would
be unfair to adopt a residential nuisance rule for smoking without making
smoking a nuisance citywide. Under existing state and local law the nuisance
remedy already can be used to address smoking in some cases.
• Declare rights of landlords to regulate. Similar to S.B. 1598, Council could consider
an ordinance declaring the right of landlords to designate units or properties
as smoke-free, while grandfathering existing smoking tenants. This approach was
strongly endorsed by landlord representatives. No significant opposition to it
was voiced by other groups in the outreach, although the
Additional outreach in summer 2008
Legal staff has conducted more outreach since the posting of the
most recent staff report in early June. On June 19, 2008 staff presented the
issues involved in residential smoking regulation to the Housing Commission. The
commissioners recognized the complexities of regulating in this area. They
generally agreed with the benefits of prohibiting smoking in residential common
areas. They also favored the idea of a declaration of existing rights.
Staff next presented the issue at a meeting of the Apartment
Association of Greater Los Angeles (AAGLA) on June 23, 2008. AAGLA members
voiced concern about potential rent decrease petitions if tenants violated the
smoking laws. They also expressed a desire for landlords not to have to enforce
residential smoking laws and potential liability for failing to do so.
Staff presented the issue at a meeting of the Rent Control Board
on July 10, 2008. The Rent Board members unanimously opposed the idea of
residential smoking regulation. They raised issues including the number of
people from certain demographic groups who are disproportionately more likely
to smoke (the poor, minorities, the disabled, and renters); concerns about
raising ire between tenants; problems of enforcement; and incentivizing
evictions.
Promotion of quitting
Many have pointed out that underlying all of this discussion is
the fact that the vast majority of smoking adults would like to quit for health
reasons, but have trouble doing so due to the chemical addiction. Others have
noted that poor and disabled residents are both more likely to smoke, and less
likely to have access to cessation programs. In conjunction with any future
smoking legislation, Council could consider having the City launch a campaign
or promotion that would encourage and help smokers to quit smoking for good.
This effort also could be combined with the direction to the public relations
firm recently hired by the City to conduct public outreach on the smoking laws.
Regulation of exterior tobacco advertisements
Council requested information on potential regulation of
advertisements for tobacco products on the exterior of businesses. Under
current law, the City cannot regulate the content of advertisements, e.g., by
specifying tobacco-related ads, despite any compelling health interests in this
area. The City can only address the manner, size, location, and time of
advertising generally.
Alternatives
As to the proposed residential
common area smoking ordinance, Council could consider alternatives to the
proposed approach including different remedies and a different approach to
designated smoking areas, as described above.
As to the tobacco
retailer licensing program, Council could consider changing the list of
prohibitions and requirements in the ordinance. Council also could consider
changing the prescribed remedies for repeat violations, as described above.
If Council wishes to
act further in the area of residential smoking regulation, it could consider
among the various approaches outlined above.
Public Outreach
Staff conducted public outreach regarding both the common area
ordinance and the other potential areas for residential regulation as described
above.
Financial Impacts &
Budget Actions
Adoption of the proposed ordinance would have minor financial
impact. The prohibition of smoking at outdoor residential common areas would be
enforced primarily by private persons and would not involve City staff time for
enforcement. The administrative and enforcement costs of the proposed tobacco
retailer licensing program (which are not currently known) would be borne
entirely by fees collected from the covered businesses in the form of the
license fee. These fees would be adjusted annually to reflect actual costs. As
with all smoking regulations adopted by Council, these new rules would be included
in public educational outreach efforts conducted by City staff and possibly by
outside consultants.
Prepared by:
Attachments: A: Proposed
Ordinance
|
Approved: |
|
Forwarded to Council: |
|
|
|
|
|
Marsha Jones Moutrie City
Attorney |
|
P. City Manager |