YOUTH
COUNCIL
of Napa County
Our mission is to work together to discuss and bring forth issues, ideas, concerns, and awareness related to the effects of tobacco products for the health and safety of the youth and families in our community.
Everyone has the right to safe and healthy housing. It is a key requirement for good physical and mental health. Allowing smoking in shared housing, however, makes safe and stable housing difficult to achieve for all residents. We want health and equity for all the residents in in American Canyon
Smoke Free Multi-Unit Housing in the City of American Canyon Having access to safe, affordable, stable housing is a key to both physical and mental health outcomes.
Allowing smoking in shared housing makes health difficult to achieve for all residents. • Exposure to secondhand smoke in multi-unit housing can lead to poor health, including asthma and other lung problems, particularly among pregnant women, children, and the elderly. • The health impacts of secondhand smoke are also felt most by communities of color, and other vulnerable groups.
• Residual nicotine and other chemicals left on furniture, walls, and other surfaces (known as thirdhand smoke) is toxic. While anyone can be exposed to thirdhand smoke, infants, children and pets are most at risk due to the nature of their contact with more household goods, meaning they are more likely to breathe in, swallow or absorb the off gassing through skin, or ingest it through their mouths.
• Smokefree Multi-Unit Housing is good for property owners. Making properties smokefree can reduce costs, risk, and liability, and it is more attractive to prospective tenants. • A smokefree building does not mean that people who smoke cannot live in the building, or that people who smoke must quit. It simply means that people cannot smoke inside the building or in other areas specified in the policy, such as on balconies and patios. • As of January 2023, there are 95 California municipalities that have enacted ordinances to regulate smoking in private units of multi-unit housing.
There are many actions that the City, property owners, and partners can take to minimize violations of the policy. An educational campaign, staff training, signage, notices to residents and provision of cessation resources can support successful implementation of a smokefree policy. In addition, property owners can establish safe and accessible spaces away from buildings for residents to smoke. There are numerous resources available to aid implementation and enforcement of smokefree policies. With careful planning and consideration, a municipal policy can be crafted to balance the health of residents, preservation of housing stability, and equitable enforcement processes.
A NEIGHBOR'S
SMOKE CAN
TRIGGER
ASTHMA
ATTACKS IN Millions
CHILDREN. are exposed
to secondhand smoke
PROTECT
YOUR FAMILY and sone can't do
anything
about:
Even you don't smoke, you can sill he exposed to secondhand smole in your home through vents, doors, and windows.
Talk to your landlord about moking your building entirely smoke-free.
TOBACCO
FREECA loboccofreeCA.com
EVERYONE DESERVES TO HAVE A
HEALTHY, SMOKEFREE HOME!
DID YOU KNOW?
People living in apartments are more likely
to be exposed to secondhand smoke.!
» Smoke can enter your home through
vents, electrical outlets, windows, and ANY AMOUNT OF
even tiny cracks in walls. SECONDHAND SMOKE
CAN BE HARMFUL
» 41,000 nonsmokers die from
secondhand smoke each year in
the U.S.3
It is especially dangerous
Up to 65% of the air in an for children and can cause
65%
apartment can come from permanent damage to
other units in the building.? growing lungs.*
YOUR LUNGS CAN'T TELL THE DIFFERENCE
» Marijuana secondhand smoke is harmful just like cigarette smoke.
It has many of the same toxic chemicals that cause cancer and other diseases.
» Vaping produces tiny droplets of harmful chemicals, including lead.
It's NOT just harmless water vapor!®
777
77 7
YOU CAN MAKE A DIFFERENCE!
» Apartment owners have the legal
authority to make their property entirely
TO FULLY PROTECT YOUR HOME smokefree. Contact your local health FROM SECONDHAND SMOKE, department for resources to offer managers and landlords about the
YOUR ENTIRE APARTMENT COMPLEX
benefits of a smokefree property.
NEEDS TO BE SMOKEFREE
» Share information with neighbors about
This includes:
the harms of all forms of secondhand
» Inside units smoke. Try posting information on bulletin boards or in laundry rooms.
» On patios and balconies
» Outdoor common areas such as pools, » Reach out to city officials about local laws parking lots, stairways, and courtyards. that would require apartments and other multi-unit housing to be smokefree.
» Check the strength of your city's
smokefree policies and take action at
www.secondhanddangers.org
Free help to quit tobacco is available
from the Kick It California.
Visit kickitca.org
Call 1-800-300-8086
Text "Quit Smoking" or "Quit Vaping" to 66819
Download the free No Butts
or No Vape mobile apps
REFERENCES:
» Tsai, J., et al. (2018). Exposure to Secondhand Smoke Among Nonsmokers - United States, 1988-2014. Morbidity and Mortality Weekly Report, 67(48), 1342-1346
» Center for Energy and Environment. (2004). Reduction of Environmental Tobacco Smoke Transfer in Minnesota Multifamily Buildings Using Air Sealing and Ventilation Treatments » U.S. Department of Health and Human Services. (2014). The health consequences of smoking - 50 years of progress: A report of the surgeon general. Atlanta, GA: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health.
» Ibid.
» Graves, BM, et al. (2020). Comprehensive characterization of mainstream marijuana and tobacco smoke. Scientific Reports, 10(1), 7160. https://doi.org/10.1038/s41598-020-63120-6 » National Academies of Sciences, Engineering, and; Medicine. (2018). Public Health Consequences of E-Cigarettes. © 2021. California Department of Public Health. Funded under contract # 21-10001. J999 - 09/21. 2/15/2023
Mayor Leon Garcia
4381 Broadway Street
American Canyon, CA 94503
Dear Mayor Garcia and Councilmembers,
On behalf of First 5 Napa County, I am writing to express our support of a Smoke-Free Multi-Unit Housing ordinance so that all residents, including American Canyon's youngest community members, can be protected from tobacco smoke drifting into their home.
Secondhand smoke can travel into an apartment from other apartments and common areas through doorways, cracks in walls, electrical lines, ventilation systems and plumbing. The Center for Disease Control reports no amount of secondhand smoke is safe for young children and that smoke free environments protect children from exposure to secondhand smoke keeping their developing lungs healthy.
Breathing secondhand smoke creates serious health hazards for children by increasing a child's risk of respiratory illness and adding complications for those who suffer from pre-existing medical conditions such as emphysema, asthma, and lung and heart disease. Secondhand smoke may lead to serious health problems during pregnancy for developing babies including miscarriage, premature births, and lower birth weight.
The American Academy of Pediatrics has also conducted studies on the dangers of thirdhand smoke or harmful toxins from tobacco smoke that remain on indoor surfaces like walls, furniture, dry wall, and insulation after a person has smoked in the area. This left-over pollution can remain on surfaces for up to a year and a half after the last exposure.
Enforcement is important to ensure effective compliance, implementation of smoke-free multi- unit housing policies, and the protection of our community's children. As of this year, over 95 municipalities across our state have passed Smoke-Free Multi-Unit Housing ordinances. Looking to their work as an example can help develop effective enforcement plans locally. Some of the most equitable enforcement components are graduated enforcement by landlord, clear lease- requirements, and civil fines against landlords/HOAs. Collaborative efforts between the city of American Canyon and community partners engaged in this work could help us achieve the goals of protecting our community members from the dangers of secondhand smoke and ensuring housing stability for residents. Developing a campaign to support the ordinance that includes education of both residents and staff could reduce the risk of ordinance violations and support a healthy, thriving community.
First 5 Napa County urges American Canyon to adopt a Smoke-Free Multi-Unit Housing ordinance. We look forward to opportunities to work together to ensure the health and safety of all residents.
Sincerely,
dett
Lilea Heine
Executive Director, First 5 Napa County
ANR AMERICANS FOR NONSMOKERS' RIGHTS
February 15, 2023
Mayor Leon Garcia
City Hall
4381 Broadway Street
American Canyon, CA 94503
Dear Mayor Leon Garcia and members of the American Canyon City Council, Americans for Nonsmokers' Rights is writing to express our support for a 100% smokefree multi-unit housing ordinance to protect the health and safety of all multi-unit residents in American Canyon. Taking action on this important public health issue would help ensure everyone's right to a smokefree living environment.
American Canyon has the opportunity to be a public health leader by protecting residents from the harmful effects of secondhand tobacco and marijuana smoke by prohibiting smoking in all multi-unit residences, including apartments and condominiums. Smokefree multi-unit housing is a powerful way to have a broad, positive community impact by reducing secondhand exposure where many people spend much of their timeespecially children, the elderly, and people with disabilities-and can suffer from persistent levels of exposure.
The Centers for Disease Control and Prevention (CDC) estimates that nearly 5 million California multi- unit housing residents who keep a smokefree home are still exposed to a neighbor's secondhand smoke.
The U.S. Surgeon General confirmed that there is no risk-free level of exposure to secondhand smoke, and that exposure can have both short and long term health risks, especially for people with existing health conditions like asthma and other respiratory conditions, heart disease, and cancer.
Smokefree multi-unit housing can help address health disparities faced by low-income residents and communities of color living in multi-unit residences. The CDC reports that 2 in every 5 children-including 7 in 10 black children—remain exposed to secondhand smoke, and the U.S. Surgeon General confirmed that the home is the primary place children are exposed. Studies show high rates of exposure to secondhand smoke in low-income multi-unit housing, and lower-income individuals are also more likely to have health conditions that are exacerbated by secondhand smoke.
All residents in American Canyon deserve to have a stable and healthy living environment, including the right to breathe smokefree air at home, regardless of their financial situation.
Action needs to be taken because secondhand smoke does not stay in the unit of a person who smokes.
Secondhand smoke can drift through multi-unit buildings and enter common areas and units occupied by non-smokers, where it becomes a nuisance and health risk to other residents. Research shows that up to 65% of the air in an apartment unit can come from other units in the building, and that secondhand smoke drifts under doors, through windows, hallways, and ventilation ducts, and through gaps around outlets, pipes, fixtures, and walls.
Smokefree multi-unit buildings create a healthier living environment for all residents, including people who smoke and their families. It's important to note that a smokefree building does not mean that people who smoke have to quit and it does not require people who smoke to move out. People who smoke simply need to go outdoors to appropriate areas to do so.
2530 San Pablo Avenue, Suite J, Berkeley, CA 94702 | 510.841.3032 | 510.841.3071 Fax | nonsmokersrights.org ANR is a 501(c)(4) nonprofit lobbying organization and contributions are not tax deductible Tax ID #94-2598713 American Canyon would be in good company by joining the dozens of California cities and counties that have already enacted laws requiring all multi-unit housing properties to be 100% smokefree, including Benicia, Contra Costa County, El Cerrito, Sonoma, Sonoma County, and Vallejo.
Americans for Nonsmokers' Rights believes that American Canyon residents should be able to breathe air that is free from all types of secondhand smoke exposure. Multi-unit housing should be free from all types of smoking and vaping - both tobacco and marijuana. Marijuana should not be smoked or vaped inside multi-unit residences, just like it should not be smoked or vaped inside workplaces, because marijuana secondhand smoke and aerosol are a source of indoor pollution that poses health risks to non- users. While marijuana is now legal, it should not be used in ways that harm other people.
It's important to note that residents can still consume marijuana, just not by smoking or vaping it in multi-unit residences. Strong smokefree laws protect residents from breathing secondhand smoke from either tobacco or marijuana, for the simple reason that all types of secondhand smoke drifts through buildings and creates a significant health risk for other residents.
Thank you for your leadership and desire to make American Canyon the best place to live, work, and visit. Please feel free to contact me at 510-841-3045 if you have any questions, comments, or feedback.
Sincerely,
Cyntlia tallatt
Cynthia Hallett, MPH
President and CEO
Americans for Nonsmokers' Rights is a national, member-based, not-for-profit organization based in Berkeley, CA that is dedicated to helping nonsmokers breathe smokefree air since 1976.
Table of Contents
Left side of the folder
Smoke Free Multiunit Housing Model Ordinance... 1
Matrix of Smoke Free Multiunit Housing Policies in California .. 2 Smoke Free Multiunit Housing Enforcement Guide 3
Right side of the folder
Napa Youth Council 1
Smoke Free Multi-Unit Housing in the City of American Canyon ...2 Everyone deserves to have a healthy, smokefree home! .. . .
Letters of support ........4
PUBLIC HEALTH American
LAW CENTER FLung Association. July 2020
at Mitchell Hamline School of Law
California
Law and Policy Partnership to End the Commercial Tobacco Epidemic
SMOKE-FREE MULTIUNIT
HOUSING MODEL ORDINANCE
ar Introduction
This Smoke-free Multiunit Housing
Model Ordinance was prepared for
California cities and counties interested
in creating smoke-free multiunit
residences by prohibiting smoking
on the premises. This 2020 model
ordinance builds on the ordinance
developed by ChangeLab Solutions and
released in 2018. The Public Health
Law Center acknowledges the excellent
work done by ChangeLab Solutions in
creating the original ordinance.
This model ordinance is based on an
independent and objective analysis
of the relevant law, evidence, and ar Customizing the Ordinance available data, as well as work done for the
California Tobacco Control Program. The model Context boxes are included throughout the offers cities and counties a variety of options to ordinance to explain some key provisions. These tailor the ordinance to meet local needs. Readers boxes are not meant to be included in any final should consider all the evidence and decide for ordinance. A city or county wishing to adopt all themselves which approach is appropriate for or part of this ordinance should keep this in mind their multiunit housing needs. and remove the context boxes. www.publichealthlawcenter.org/caltobacco
PUBLIC HEALTH • American
LAW CENTER Lung Association.
at Mitchell Hamline School of Law July 2020
California
In some instances, blanks (such as [ I prompt you to customize the language to fit your community's needs. In other instances, the ordinance offers you a choice of options (such as [ choice one / choice two ]). Some options are followed by a comment that describes the legal provisions in more detail. A degree of customization is always necessary to make sure the ordinance is consistent with a community's existing laws. Such customization also ensures that communities are using this model ordinance to address local needs and engender health equity. дл Tips for Using This Model Ordinance
The best possible world is one without the death and health harms associated with commercial tobacco use. Communities differ on their readiness and willingness to adopt certain commercial tobacco control policies that are intended to help make that world a reality. Accordingly, this model ordinance represents a balance between state and federal minimum standards, best public health policy practices, and practicality for city governments in California. This model ordinance contains several policy components that communities may or may not choose to adopt at this time that may go beyond minimum state and federal requirements.
While the Public Health Law Center does not lobby, advocate, or directly represent communities, we can provide assistance through our publications and referrals to experts in the field. Education, stakeholder and community engagement, and a strong advocacy plan are key steps in the adoption of effective commercial tobacco control policies. If a community is unaware of the resources available to it for engaging the community and developing an advocacy plan, or if a city is considering adopting an ordinance and is interested in learning about the range of resources available, please contact the Public Health Law Center. If you have any questions about this ordinance, you can reach us at www.publichealthlawcenter.org.
This publication was prepared by the Public Health Law Center, a nonprofit organization that provides information and legal technical assistance on issues related to public health. The Center does not provide legal representation or advice. The information in this document should not be considered legal advice. This model ordinance was made possible by funds received from Grant Number 19-10229 with the California Department of Public Health, California Tobacco Control Program, and the American Lung Association in California. www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 2 PUBLIC HEALTH American
LAW CENTER - Lung Association. July 2020
at Mitchell Hamline School of Law
California
AN ORDINANCE OF THE [ CITY/COUNTY OF ] PROHIBITING
SMOKING IN AND AROUND MULTIUNIT RESIDENCES AND
AMENDING THE [ ] MUNICIPAL CODE
The [ city council/county board of supervisors ] of the [ city/county of ] does ordain as follows:
SECTION I. [ See Appendix A: Findings ]
Note
A findings section is important because it provides the evidentiary basis for the proposed commercial tobacco control policies and demonstrates the jurisdiction's reasoning for adopting specific provisions. This findings section reflects language appropriate for all of the provisions suggested. The findings section is part of the ordinance and legislative record, but it usually does not become codified in the municipal code. An ordinance based on this model ordinance should include findings of fact - data, statistics, relevant epidemiological information, for instance - that support the purposes of this ordinance, as well as any legal precedent that directly supports the ordinance. In addition to serving an educational purpose and building support for the ordinance, the findings can also serve a legal purpose. If the ordinance is challenged in court, the findings are an admissible record of the factual determinations made by the legislative body when considering the ordinance. Courts will generally defer to legislative determinations of factual issues, which often influence legal conclusions. A list of findings supporting this model ordinance appears in "Appendix A: Findings." Jurisdictions may select findings from that list to insert here, along with additional findings on local or regional conditions, outcomes, and issues that help make the case for the law.
SECTION II. [ Article/Chapter ] of the [ City/County of ] Municipal/ County Code is hereby amended to read as follows:
Sec. 1. DEFINITIONS. For the purposes of this [ article/chapter ] the following definitions shall govern unless the context clearly requires otherwise:
(A) "Common Area" means every area of a multiunit residence that residents of more than one unit are entitled to enter or use, including, but not limited to, halls, pathways, lobbies, courtyards, elevators, stairs, community rooms, playgrounds, gym facilities, swimming pools, parking garages, parking lots, grassy or landscaped areas, restrooms, laundry rooms, cooking areas, and eating areas.
www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 3 i
PUBLIC HEALTH American
LAW CENTER Lung Association.
at Mitchell Hamline School of Law July 2020
California
(B) "Common interest development" means:
(I) A community apartment project as defined in California Civil Code section 4105, or any successor legislation;
(2) A condominium project as defined in California Civil Code section 4125, or any successor legislation;
(3) A planned development as defined in California Civil Code section 4175, or any successor legislation; and
(4) A stock cooperative as defined in California Civil Code section 4190, or any successor legislation.
(C) "Electronic smoking device" means any device that may be used to deliver any aerosolized or vaporized substance to the person inhaling from the device, including, but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah. (D) "Home owners' association" or "HOA" means an organization or entity established for the purpose of managing or maintaining a common interest development. A homeowners' association shall also mean "association" as defined in California Civil Code section 4080, or any successor legislation.
(E) "Landlord" means any person or agent of a person who owns, manages, or is otherwise legally responsible for a unit in a multiunit residence that is leased to a residential tenant. For purposes of this ordinance, a tenant who sublets their unit (e.g., a sublessor) is not a landlord. (F) "Multiunit Residence" means property containing two or more units, including, but not limited to, apartment buildings, common interest developments, senior and assisted living facilities, and long-term health care facilities. [ Multiunit Residences do not include the following:
(1) a hotel or motel that meets the requirements of California Civil Code section 1940(b)(2); (2) a mobile home park;
(3) a campground;
(4) a marina or port;
(5) a single-family home, except if used as a health care facility subject to licensing requirements; and
www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 4 PUBLIC HEALTH American
LAW CENTER • Lung Association.
at Mitchelt Hamline School of Law • July 2020
California
(6) a single-family home with an accessory dwelling unit or second unit permitted pursuant to California Government Code sections 65852.1, 65852.2, or 65852.22 or an ordinance of the [ city/county ] adopted pursuant to those sections, except where the accessory dwelling unit or second unit is rented or is used as a health care facility subject to licensing requirements. ]
Note
This definition is used in conjunction with the definition of unit in this model ordinance, which makes clear that this term is limited to dwelling spaces.
Because the definition of unit in this ordinance is very broad, a community may want to limit the types of dwelling places covered by the smoke-free housing ordinance. Hotels and motels are included in the list of optional exemptions because many communities regulate smoking in these facilities using a smoke-free workplace ordinance, but there is no legal reason hotels and motels could not be made completely smoke-free using this model ordinance.
Single-family residences are suggested as an exemption because the definition of unit in this ordinance includes individual bedrooms in a single-family home. Thus, a two-bedroom free-standing house would be a multiunit residence per the definitions in this ordinance, unless the exemption is included. With the new accessory dwelling unit (ADU) law taking effect Jan. 1, 2020, the optional language would make clear that the ordinance only applies to ADUs where they are rented or used as a licensed health care facility.
Note that the definition of multiunit residence without any exemptions includes the following types of dwelling places: apartments, condominium projects, townhomes, stock cooperatives, and co-housing; affordable housing (for seniors, disabled tenants, Section 8, etc.); long-term health care facilities, assisted living facilities, hospitals, and family support facilities; hotels, motels, single-room occupancy facilities, dormitories, and homeless shelters; mobile home parks, campgrounds, marinas, and ports; as well as single-family homes and single-family homes with an in-law unit.
The U.S. Department of Housing and Urban Development requires public housing agencies to adopt a policy prohibiting smoking in all indoor areas, including residential units, and outside spaces within 25 feet of indoor areas. www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 5 PUBLIC HEALTH _ American
LAW CENTER • Lung Association.
at Mitchell Hamline School of Law
California July 2020
(G) "Nonsmoking Area" means any area in which smoking is prohibited by (1) this L article/chapter ] or other law;
(2) binding agreement relating to the ownership, occupancy, or use of real property; or (3) a person with legal control over the area.
(H) "Person" means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity, including government agencies.
(1) "Smoking" means:
(1) inhaling, exhaling, or burning, any tobacco, nicotine, cannabis, or plant product, whether natural or synthetic;
(2) carrying any lighted, heated, or activated tobacco, nicotine, marijuana, or plant product, whether natural or synthetic, intended for inhalation; or (3) using an "electronic smoking device."
[Smoking does not include the use of traditional, sacred tobacco as part of an Indigenous practice or a lawfully recognized religious, spiritual, or cultural ceremony or practice.]
Note
Some smoke-free policies provide exceptions for traditional, ceremonial, and sacred uses of tobacco practiced by some tribal communities, while prohibiting the use of commercial tobacco. If you would like more information about this topic, please visit keepitsacred.org.
(J) "Unit" means a personal dwelling space, even one lacking cooking facilities or private plumbing facilities, and includes any associated exclusive-use area, such as a private balcony, porch, deck, or patio. "Unit" includes, without limitation, an apartment; a condominium; a townhouse; a room in a senior facility; a room in a long-term health care facility, assisted living facility, community care facility, or hospital; a room in a hotel or motel; a dormitory room; a room in a single-room occupancy facility; a room in a homeless shelter; a mobile home; a camper vehicle or tent; a single-family home; and an accessory dwelling unit or second unit. www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 6 PUBLIC HEALTH • American
LAW CENTER - Lung Association.
at Mitchell Hamline School of Law July 2020
California
Sec. 2. SMOKING RESTRICTIONS
(A) Effective 90 days from [ effective date ], smoking is prohibited anywhere on the premises of a multiunit residence, including units, common areas, and other outdoor areas. (B) No person with legal control over any multiunit residence shall permit smoking anywhere on the premises of the multiunit residence.
Note
The strongest approach from a public health standpoint is to prohibit smoking anywhere on the premises. However, if a jurisdiction wants to allow some outdoor smoking, the narrowest way to do so would be to include a designated smoking area (DSA). Again, from a public health standpoint, the preferable approach would be to allow on the premises only one DSA that is required to be at least 25 feet from interior areas and from areas frequented by children. Here is sample language that would allow this:
Replace the current subsection Sec. 2(B) with the following new subsections:
(b) Notwithstanding subsection (a), smoking is permitted in designated smoking areas if they meet the following conditions:
(1) Must not be an enclosed area;
(2) Must be at least twenty-five (25) feet from any:
(a) outdoor recreation area such as a tennis court, swimming pool, and picnic area; or
(b) outdoor area primarily used by children such as a playground; (3) Must have a clearly marked perimeter; and
(4) Must be identified by conspicuous signs.
(C) No person with legal control over any nonsmoking area of a multiunit residence shall permit smoking in the nonsmoking area, except as provided in subsection (b). (continued)
www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 7 PUBLIC HEALTH American
LAW CENTER Lung Association.
at Mitchell Hamline School of Law July 2020
California
Note (continued)
Insert as new subsection (d) in Sec. 1 (Definitions):
(D) "Enclosed area" means all space between a floor and a ceiling that is bounded by walls, doorways, or windows, whether open or closed, covering more than 50 percent of the combined surface area of the vertical planes constituting the perimeter of the area. A wall includes any retractable divider, garage door, or other physical barrier, whether temporary or permanent.
If limiting outdoor smoking to one DA is not feasible, the next most protective approach would be to follow the Department of Housing & Urban Development's approach and include a 25-foot "buffer zone." Please contact the Public Health Law Center for more information on this approach.
Note
This model ordinance includes a 90-day phase-in of the smoke-free requirement to allow time for public officials to educate tenants and management about the requirements of the ordinance. Some smoke-free multiunit housing ordinances allow current leases to expire before the smoke-free requirements take effect in those units. We believe this approach is not necessary since lease provisions cannot conflict with local laws.
Note
The CA Labor Code Sec. 6404.5, which prohibits smoking in places of employment, exempts private residences in Sec. 6404.5(e)(6). Local jurisdictions are able to impose more restrictions on smoking than state law, but if a jurisdiction has incorporated Sec. 6404.5 and the decision is made to have this ordinance apply to residential private property rentals, then consider adding the following sentence to the above subsection (a):
"This section applies notwithstanding [ citation to local incorporation of Sec. 6404.5(e)(6) ]." www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 8 PUBLIC HEALTH • American
LAW CENTER • Lung Association.
at Mitchell Hamline School of Law July 2020
California
(C) No person with legal control over a common area in which smoking is prohibited by this [ article/chapter ] or other law shall permit the presence of ashtrays, ashcans, or other receptacles designed for or primarily used for disposal of smoking waste within the area.
Sec. 3. REQUIRED AND IMPLIED LEASE TERMS FOR ALL NEW AND EXISTING UNITS IN MULTIUNIT RESIDENCES.
Note
This section requires that smoking restrictions be included in a lease for the rental of a unit in any type of multiunit residence (e.g., an apartment building, common interest development, or single- room occupancy facility.
By including these provisions in lease agreements, smoking becomes a violation of both the lease and the local ordinance. Thus, landlords may enforce the smoking lease terms just like any other condition in the rental agreement. Further, by including the "third-party beneficiary" provision, other residents of the multiunit residence can enforce a lease's smoking restrictions. (A) After [ effective date ], every lease or other rental agreement for the occupancy of a unit in a multiunit residence entered into, renewed, or continued month to month shall be amended to include the following provisions:
(1) A clause providing that as of [ effective date + 90 days ], it is a material breach of the agreement to smoke or allow smoking:
(a) in the unit, including exclusive-use areas such as balconies, porches, or patios; and (b) in any common area of the multiunit residence [ other than a designated smoking area ].
Sample Language
The bracketed language above and in the sample language below regarding DAs is to be included if a building has a DSA.
"Tenant agrees and acknowledges that the premises to be occupied by tenant and members of tenant's household have been designated as a smoke-free living (continued)
www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 9 PUBLIC HEALTH American
LAW CENTER Lung Association.
at Mitchell Hamline School of Law
California July 2020
Sample Language (continued)
environment. As of [ effective date + 90 days ], tenant, members of tenant's household, and any guests under control of the tenant will not smoke anywhere:
(A) In the unit rented by tenant, including any associated balconies, decks, or patios; (B) In the common areas of the property, including, but not limited to, lobbies, hallways, stairwells, elevators, laundry rooms, community rooms, community bathrooms, or offices; or
(C) On the outdoor grounds of the property, [ other than a designated smoking area, J including, but not limited to, entryways, playgrounds, pool areas, walking paths, or sitting areas.
"Tenant acknowledges that a breach of the smoke-free policy may render tenant liable to landlord for the costs to repair tenant's unit due to damage from smoke odors or residue. A breach of the smoke-free policy is a breach of the lease and grounds for immediate enforcement action, including potential termination of the lease by the landlord.
"Tenant will inform tenant's guests of the smoke-free policy. Tenant will also promptly give landlord a written statement of any incident where tenant observes smoking not allowed by this policy or believes smoke is migrating into the tenant's unit from sources outside the tenant's unit."
(2) A clause providing that it is a material breach of the agreement for tenant to violate any law regulating smoking while anywhere on the property, or to allow any other person subject to the control of the tenant to engage in such behavior.
Sample Language
"It is a material breach of this agreement for tenant to violate any law regulating smoking while anywhere on the property. Moreover, it is a material breach of this agreement for tenant to allow any other person subject to the control of the tenant to violate any law regulating smoking while anywhere on the property."
www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 10 PUBLIC HEALTH • American
LAW CENTER - Lung Association.
at Mitchell Hamline School of Law July 2020
California
(3) A clause expressly conveying third-party beneficiary status to all occupants of the multiunit residence as to the smoking provisions of the lease or other rental agreement.
Sample Language
"Tenant agrees that other tenants of the rental community are third-party beneficiaries of tenant's smoke-free policy agreement with landlord. A tenant may sue another tenant for an injunction to prohibit smoking or for damages but does not have the right to evict another tenant. Any lawsuit between tenants does not create a presumption that the landlord breached this lease."
(B) Whether or not a landlord complies with subsection (A) above, the clauses required by those subsections shall be implied and incorporated by law into every agreement to which subsection (A) applies as of [ effective date + 90 days ]. (C) A tenant who breaches, or allows any other person subject to the control of the tenant to breach, a smoking provision of a lease or other rental agreement for the occupancy of a unit in a multiunit residence shall be liable for the breach to (1) the landlord; and (2) any occupant of the multiunit residence who is exposed to smoke or who suffers damages as a result of the breach. (D) Failure to enforce any smoking provision required by this [ article/chapter ] shall not affect the right to enforce such provision in the future, nor shall a waiver of any breach constitute a waiver of any subsequent breach or a waiver of the provision itself.
Note
This is a technical legal provision designed to prevent a court from inferring a permanent waiver of a smoking-related provision from a pattern of lax enforcement.
Sec. [ (*4)]. REQUIREMENTS FOR RENTAL PROPERTIES.
The following requirements apply to multiunit residences other than units in a common interest development that are not being rented:
(A) On or before [ effective date + 90 days ], every landlord shall deliver to each unit a copy of this [article/chapter ] and a written notice clearly stating:
www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 11 e PUBLIC HEALTH American
LAW CENTER Lung Association.
at Mitchell Hamline School of Law California July 2020
(1) All units are designated nonsmoking units and smoking is prohibited in a unit, including any associated private balcony, porch, deck, or patio, as of [ effective date + 90 days ]; and
(2) Smoking in all common areas or outdoor areas [, except for specifically designated smoking areas, I is a violation of [ this article/chapter ] as of [ effective date + 90 days ]. (B) As of [ effective date ], every landlord shall provide prospective tenants with written notice clearly stating that:
(1) Smoking is prohibited in units, including any associated private balcony, porch, deck, or patio, as of [ effective date + 90 days ]; and
(2) Smoking is prohibited in all common areas and outdoor areas [, except for specifically designated smoking areas, ] as of [ effective date + 90 days ]. (C) As of [ effective date + 90 days ], the person or persons with legal control over common areas shall post and maintain clear and unambiguous "No Smoking" signs at entrances and exits, in common areas, and in conspicuous places adjoining the property grounds. In addition, as of [ effective date + 90 days ], the person or persons with legal control over the multiunit residence shall post and maintain signs in sufficient numbers and locations in the multiunit residence to indicate that smoking is prohibited in all units. The absence of signs shall not be a defense to a violation of any provision of this [ article/chapter ]. "No Smoking" signs are not required inside or on doorways of units [, except for hotels or motels that meet the criteria listed in California Civil Code section 1940, subdivision (b)(2) ].
Note
If your community excludes hotels and motels from the definition of multiunit residences (Section *1 Definitions), then do not include the optional language in grayscale in the last sentence. (D) Landlords with knowledge of violations shall take reasonable steps to investigate and enforce the regulations, including a written notice to the resident of the landlord's knowledge of the violation, a request to cease the violation, and the course of action to be taken if the violation is not corrected. [ The landlord shall also provide resources provided for free by the [ city/county ] to assist with nicotine dependence, such as referrals tol quitline or online resources. 1
www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 12 !
PUBLIC HEALTH American
LAW CENTER • Lung Association. •July 2020
at Mitchell Hamline School of Law California
Sec. [. _ (*5)]. REQUIREMENTS FOR COMMON INTEREST DEVELOPMENTS.
The following requirements apply to common interest developments:
(A) On or before [ effective date + 90 days ], the HOA shall provide to all owners of units a copy of this [ article/chapter ] and written notice clearly stating that:
(1) Smoking is prohibited in units, including any associated private balcony, porch, deck, or patio, as of [ effective date + 90 days ]; and
(2) Smoking is prohibited in all common areas and outdoor areas [, except for specifically designated smoking areas, ] as of [ effective date + 90 days ]. (B) As of T effective date ] every seller of a unit shall provide prospective buyers or renters, a copy of this [ article/chapter ] and written notice clearly stating that:
(1) Smoking is prohibited in units, including any associated private balcony, porch, deck, or patio, as of [ effective date + 90 days ]; and
(2) Smoking is prohibited in all common areas and outdoor areas [, except for specifically designated smoking areas, ] as of [ effective date + 90 days ]. (C) As of I effective date + 90 days ], the HOA, or any person having legal ownership or control over common areas, shall post and maintain clear and unambiguous "No Smoking" signs in sufficient numbers and locations in the common interest development to make it obvious to a reasonable person that smoking is prohibited throughout the common interest development. The absence of signs shall not be a defense to a violation of any provision of this chapter.
(D) HOAs with knowledge of violations shall take reasonable steps to investigate and enforce the regulations, including a written notice to the resident of the HOA's knowledge of the violation, a request to cease the violation, and the course of action to be taken if the violation is not corrected. [ The HOA shall also distribute resources provided for free by the [ city/county ] to assist with nicotine dependence, such as referrals to quitline or online resources. ] www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 13 PUBLIC HEALTH American
LAW CENTER Lung Association.
at Mitchell Hamline School of Law
California July 2020
Sec. [____ (*5)]. NUISANCE; OTHER
(A) The provisions of this [ article/chapter ] shall be liberally construed to protect the public health to the maximum effect possible, Notwithstanding (1) any provision of this [ article/ chapter ] or of this code, (2) any failure by any person to restrict smoking under this [ article/chapter ], or (3) any explicit or implicit provision of this code that allows smoking in any place, nothing in this code shall be interpreted to limit any person's legal rights under other laws with regard to smoking, including rights in nuisance, trespass, property damage, and personal injury or other legal or equitable principles.
Note
The subsection spells out that the intent of this ordinance is to create new smoke-free areas and enhance the right to smoke-free environments. This ordinance does not provide smokers with any "safe harbors" from existing laws that might already impose potential liability for smoking.
(B) Any violation of this [ article/chapter ] is hereby declared to be a public nuisance.
Note
By expressly declaring that a violation of this ordinance is a nuisance, this provision allows enforcement of the ordinance by the city or county via the administrative nuisance abatement procedures and penalties commonly found in municipal codes. The jurisdiction may want to cross-reference its nuisance code with this section to ensure consistency. (C) Nonconsensual exposure to smoke from smoking occurring on or drifting into [ residential ] property is a nuisance.
www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 14 PUBLIC HEALTH American
LAW CENTER Lung Association.
at Mitchell Hamline School of Law July 2020
California
Note
The declaration in subsection (B) that smoking is a nuisance extends far beyond the residential context. Once smoking is declared a nuisance, nuisance abatement laws can be used to address smoke around doorways, at businesses, in public venues, and anywhere else it may occur. However, declaring smoking a nuisance is particularly helpful in the housing context because it eliminates the need to prove that some particular level of exposure has occurred and that such exposure is an unjustified intrusion or hazard.
California Government Code section 38771 explicitly authorizes cities to declare nuisances by ordinance. Counties may declare a nuisance pursuant to the broad police power set forth in the California Constitution, article XI, section 7.
Sec. [ _ (*8)]. PENALTIES AND ENFORCEMENT.
Note
Enforcement of smoke-free multiunit housing policies should balance the goal of protecting residents from secondhand smoke exposure with the goal of ensuring housing stability for all residents. Several factors should be considered in this balance, such as the likely effectiveness of enforcement; equity (balancing the public health benefits of smoke-free housing policies with the risks of housing instability and associated health harms or negative social outcomes posed by different enforcement mechanisms); and the process of enforcement. Criminal and monetary administrative penalties can carry significant risks of discriminatory enforcement, financial hardship, and housing instability for residents. In the context of housing, another concern is the prospect of unintended criminal, immigration, and Due Process consequences as a result of potential increased interactions with law enforcement.
Another consideration for such criminal charges and penalties is how the criminal process may trigger a probation or parole violation or similar significant ripple effect in the residents' interaction with the justice system. Increased involvement with the criminal justice system could lead to more severe criminal sanctions, and possible incarceration. In turn, these criminal sanctions could jeopardize the individual's housing, benefits, education, and employment. These (continued)
www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 15 PUBLIC HEALTH American
LAW CENTER Lung Association.
at Mitchell Hamline School of Law July 2020
California
Note (continued)
risks should be carefully weighed by the municipality as policymakers consider whether to include criminal and monetary penalties and how to structure those penalties.
For these reasons, the enforcement provisions in this model policy do not include criminal sanctions, and focus primary responsibility for enforcement on landlords and HOAs as the managers of such properties by holding them accountable with appropriate civil penalties for any failure to enforce the rules required under this law. Penalties for individual residents are limited to violations that include harassment or retaliation for seeking enforcement of the law.
The following provisions are designed to offer several enforcement options to the jurisdiction and residents. While not all enforcement mechanisms may be pursued, allowing multiple enforcement mechanisms in the ordinance may increase the likelihood of compliance, enforcement, and, in turn, protections from second and third-hand smoke. (A) The remedies provided by this [ article/chapter ] are cumulative and in addition to any other remedies available at law or in equity.
(B) Any person exposed to secondhand smoke as a result of a violation of this [ article/ chapter ] may initiate enforcement of this [ article/chapter ] by registering a complaint with the [ city/county manager ], or his or her designee. (C) Enforcement of this chapter shall be the responsibility of [ department of housing inspections/public health/other J. In addition, any code enforcement official may enforce this chapter.
(D) Landlords or HOAs found to have violated this [ article/chapter ] are subject to a civil fine not less than [ two hundred fifty dollars ($250) ] and not exceeding [ one thousand dollars ($1,000) ] per violation.
Note
This provision provides civil fines for violating the ordinance. It requires that a traditional civil suit be filed by the city or county (possibly in small claims court). The fine amounts can be adjusted but cannot exceed $1,000 per violation. (See California Government Code section 36901)
www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 16 PUBLIC HEALTH American
LAW CENTER F. came Association. July 2020
at Mitchell Hamline School of Law : California
(E) No person shall intimidate, harass, or otherwise retaliate against any person who seeks compliance with this [ article/chapter ]. Any person in violation of this subsection is subject to a civil fine not less than [ two hundred fifty dollars ($250) ] and not exceeding [ one thousand dollars ($1,000) ] per violation.
Note
This subsection allows penalties for any person who intimidates, harasses, or otherwise retaliates for persons seeking compliance with this ordinance. These fines may be too steep for some residents, which could put their housing stability in jeopardy. Community service may be provided as an alternative option. The following language could be added to this paragraph: "Residents of the multiunit residence in violation of this subsection may be subject to community service as an alternative to a civil fine." (F) In addition to other remedies provided by this [ article/chapter ] or otherwise available at law or in equity, any violation of this [ article/chapter 1 may be remedied by a civil action brought by the [ city attorney/county counsel ], including, without limitation, administrative or judicial nuisance abatement proceedings, civil code enforcement proceedings, and suits for injunctive relief.
Note
It is common to provide that the local government's lawyers may go to court to seek injunctions and other penalties in addition to fines. The express provision for injunctive relief lowers the showing required to obtain a preliminary or permanent injunction.
A public agency should think carefully about the nuisance abatement procedure it chooses in enforcing this ordinance after it is adopted. A local government may provide for treble damages for the second or subsequent nuisance abatement judgment within a two-year period, as long as the ordinance is enacted pursuant to Government Code section 38773.7.
Treble damages are not available, however, under the alternative nuisance abatement procedures in Government Code section 38773.1 and Health & Safety Code section 17980.
Government Code section 38773.5 establishes a procedure for nuisance abatement where the cost of the abatement can be collected via the property tax roll as a special assessment against the property on which the violation occurs.
www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 17 PUBLIC HEALTH - American
LAW CENTER Lung Association.
at Mitchell Hamline School of Law July 2020
California
(G) Any person may bring a civil action to enforce this [ article/chapter ] to prevent future violations and may sue to recover actual or statutory damages, including court costs, and attorney fees.
SECTION III. CONSTRUCTION, SEVERABILITY.
It is the intent of the [ city council/board of supervisors ] of the [ city/county ] of [ to supplement applicable state and federal law and not to duplicate or contradict such law and this ordinance shall be construed consistently with that intention. If any section, subsection, subdivision, paragraph, sentence, clause, or phrase of this ordinance, or its application to any person or circumstance, is for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases of this ordinance, or its application to any other person or circumstance. The [ city council/board of supervisors ] of the [ city/county ] of L... _J hereby declares that it would have adopted each section, subsection, subdivision, paragraph, sentence, clause, or phrase hereof, irrespective of the fact that any one or more other sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases hereof be declared invalid or unenforceable.
APPENDIX A: FINDINGS
WHEREAS, tobacco use causes death and disease and continues to be an urgent public health threat, as evidenced by the following:
• The World Health Organization (WHO) estimates that tobacco kills up to half of its users, amounting to more than 8 million deaths each year worldwide, including nearly half a million people who die prematurely from smoking in the United States alone;? • Tobacco use can cause disease in nearly all organs of the body and is responsible for an estimated 87% of lung cancer deaths, 32% of coronary heart disease deaths, and 79% of all chronic obstructive pulmonary disease deaths, in the United States;? • 5.6 million of today's Americans who are younger than 18 are projected to die prematurely from a smoking-related illness;? and
• The estimated economic damage attributable to smoking and exposure to secondhand smoke in the United States is nearly $300 billion annually; and? WHEREAS, tobacco use is the number one cause of preventable death in California? and continues to be an urgent public health issue, as evidenced by the following:
www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 18 :
PUBLIC HEALTH American
LAW CENTER Lung Association. July 2020
at Mitchell Hamline School of Law California
• An estimated 40,000 California adults die from smoking annually;? • Each year, smoking costs California an estimated $13.3 billion in direct health care expenses, $3.6 billion in Medicaid costs, and $10.4 billion in productivity losses;3 • Research indicates that more than 25% of all adult cancer deaths in California are attributable to smoking; and
[ insert local data if available ]
WHEREAS, significant disparities in tobacco use exist in California which create barriers to health equity, as evidenced by the following:
• African American (17%) and American Indian (19.1%) Californians report a higher smoking prevalence than white Californians (11.8%);6
• The American Indian population in California reports the highest cigarette smoking rate among adults; and American Indian youth report the highest rate of smoking among high school students;
• Californians with the highest levels of educational attainment and annual household income report the lowest smoking rates;
• Those who identify as lesbian, gay, bisexual, or transgender in California report smoking at higher rates than those who do not:6
• Californians who live in multiunit housing report smoking cigarettes at a higher rate (13.1%) than those who live in a house;
• Californians who reported experiencing psychological distress in the preceding month smoked at a rate far higher (26.7%) that the average statewide smoking rate (11.0%); and [ insert local data if available ]
WHEREAS, secondhand smoke has repeatedly been identified as a health hazard, as evidenced by the following:
• In 2006, the U.S. Surgeon General concluded that there is no risk-free level of exposure to secondhand smoke;
• In 2006, the California Air Resources Board identified secondhand smoke as a toxic air contaminant, in the same category as the most toxic automotive and industrial air pollutants, and a serious health threat for which there is no safe level of exposure;39 www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 19 PUBLIC HEALTH American
LAW CENTER Lung Association.
at Mitchell Hamline School of Law
California July 2020
• In 2006, the California Environmental Protection Agency added secondhand smoke to the Proposition 65 list of chemicals known to the state of California to cause cancer, birth defects, and other reproductive harm;1°
• The American Society of Heating, Refrigerating, and Air Conditioning Engineers (ASHRAE) finds that acceptable indoor air quality in multiunit housing requires the absence of secondhand smoke, cannabis smoke, and aerosol from electronic smoking devices;" • The American Heart Association and the American Lung Association recommend all adults and children be protected from secondhand smoke in multiunit housing;1213 WHEREAS, exposure to secondhand smoke causes death and disease, as evidenced by the following:
• Since 1964, approximately 2.5 million nonsmokers have died from health problems caused by exposure to secondhand smoke:?
• Secondhand smoke was responsible for an estimated 34,000 heart disease-related and 7,300 lung cancer-related deaths among adult nonsmokers each year during 2005-2009 in the United States;?
• Research indicates that exposure to secondhand smoke increases the risk of coronary heart disease by 25% to 30% and increases the risk of stroke by 20% to 30%;214 • Secondhand smoke kills more than 400 infants every year;15 WHEREAS, electronic smoking device aerosol may be considered a health hazard, as evidenced by the following:
• Research has found at least twelve chemicals in electronic smoking device aerosol known to the State of California to cause cancer, birth defects, or other reproductive harm, 0,16,17 such as formaldehyde, acetaldehyde, lead, nickel, chromium, arsenic, and toluene; 718 • Electronic smoking device aerosol is not harmless water vapor as it contains varying concentrations of particles and chemicals with some studies finding particle sizes and nicotine concentrations similar to, or even exceeding, conventional cigarette smoke;7719-21 • Evidence continues to build that exposure to electronic smoking device aerosol, including secondhand exposure, has immediate impacts on the human respiratory and cardiovascular systems, and poses a risk to human health; 17,19,21-27 www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 20 i
PUBLIC HEALTH H • American
LAW CENTER • Lung Association. July 2020
at Mitchell Hamline School of Law California 1
• Given the increasing prevalence of electronic smoking device use, especially among youth and young adults, widespread nicotine exposure resulting in addiction and other harmful consequences is a serious concern; 1719,28,29
• Indoor air experts and health authorities, including the U.S. Surgeon General, American Society of Heating Refrigerating and Air Conditioning Engineers, and the State of California Tobacco Education and Research Oversight Committee (TEROC), all support inclusion of electronic smoking devices in regulations of smoking and other tobacco product use; 19,30,31 WHEREAS, secondhand cannabis smoke has been identified as a health hazard, as evidenced by the following:
• The California Environmental Protection Agency includes cannabis smoke on the Proposition 65 list of chemicals known to the state of California to cause cancer, 10,32 • Cannabis smoke contains at least 33 known carcinogens;32 • In one study, exposure to cannabis smoke in an unventilated setting resulted in detectible levels of cannabinoids in non-smoker participants' blood and urine, and participants experienced minor increases in heart rate and impaired cognitive performance; 33 and • A recent systematic review of the literature concluded that secondhand exposure to cannabis smoke leads to cannabinoid metabolites in bodily fluids and individuals experiencing self-reported psychoactive effects;34
WHEREAS, nonsmokers who live in multiunit dwellings can be exposed to neighbors' secondhand smoke, as evidenced by the following:
• Research demonstrates that secondhand smoke in multiunit housing can and does transfer between units, seeping into smoke-free areas from areas where smoking occurs;35 • Residents of multiunit housing have higher levels of cotinine (a biomarker for nicotine) in their blood and saliva than those living in detached houses,36 • Among children who live in homes in which no one smokes indoors, those who live in multiunit housing have 45% higher cotinine levels than children who live in detached houses;36,37
• Twelve studies have found between 26% and 64% of residents of multiunit housing report secondhand smoke drifting into their home;36
www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 21 PUBLIC HEALTH American
LAW CENTER Lung Association.
at Mitchell Hamline School of Law July 2020
California
• Surveys have found that 65% to 90% of multiunit housing residents who experience secondhand smoke in their home are bothered by it, 36 and a 2019-2020 survey documented variations in secondhand smoke source among multiunit housing residents in Los Angeles County, who reported secondhand smoke exposure from tobacco (39%), marijuana (36%), and e-cigarettes (9%);38
• Between 44.0% and 46.2% of Californians living in multiunit housing with personal smoke- free home policies are exposed to secondhand smoke in their home;39 WHEREAS, harmful residues from tobacco smoke can be absorbed by and cling to virtually all indoor surfaces long after smoking has stopped and then be emitted back into the air, making this "thirdhand smoke" a potential health hazard, as evidenced by the following:
• Thirdhand smoke contains carcinogenic materials that accumulate over time, presenting a health hazard long after the initial smoke is gone;40,41 • Studies consistently find that thirdhand smoke remains months after nonsmokers have moved into units where smokers previously lived, 4 and a recent study documents that it can remain in units for years; 43
• Human exposure to these thirdhand smoke carcinogens can occur through inhalation, ingestion, or skin absorption through contact with carpeting, furnishings, or clothing; 44 • Thirdhand smoke potentially poses the greatest danger to infants and toddlers, who crawl on rugs and furnishings and place household items in their mouths; 44 • Nonsmoking people who are exposed to thirdhand smoke have significantly higher nicotine and cotinine levels than those who have not been exposed to thirdhand smoke;42 • Research has shown that thirdhand smoke damages human cellular DNA45,46 and is carcinogenic at exposure levels relevant to residents of multiunit housing:46 WHEREAS, smoking is a leading cause of fire-related injury and death, 4 and contributes to health inequities, as evidenced by the following:
• During 2012-2016, U.S. fire departments responded to an estimated 18,100 smoking- related structure fires, which resulted in an estimated 1,130 injuries, 590 deaths, and $476 million in direct property damage; 48
• During 2012-2016, smoking materials caused 5% of reported home fires, 23% of home fire deaths, 10% of home fire injuries, and 7% of the direct property damage from home fires; 48 www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 22 i
PUBLIC HEALTH American
'LAW CENTER • Lung Association. • July 2020
at Mitchell Hamline School of Law California
• African American males and American Indian males have the highest mortality rates for fire-related deaths; altogether, African Americans accounted for 19% of all fire-related deaths in 2017, but made up only 13% of the U.S. population;47 • Elderly people 85 or older have the highest fire death rate, and the risk of dying from smoking-related fires increases with age; 47
[ insert local data if available ]
WHEREAS, an estimated 28% of Californians (or 7.3 million people live in multiunit housing;49 WHEREAS, the U.S. Surgeon General has concluded that eliminating smoking in indoor spaces is the only way to fully protect nonsmokers from secondhand smoke exposure; and that separating smokers from nonsmokers, cleaning the air, and ventilating buildings cannot completely prevent secondhand smoke exposure;
WHEREAS, smoke-free housing policies resulted in a 24% reduction in self-reported exposure to secondhand smoke exposure among racially and ethnically diverse seniors living in low- income multiunit housing properties; 50
WHEREAS, several studies have confirmed that smoke-free multiunit housing policies are an effective method to reduce secondhand smoke exposure in multiunit housing:50-52 WHEREAS, secondhand smoke exposure occurs more often in multiunit housing compared to separate, single-unit housing;49,53,54 and therefore contributes to tobacco-related health inequities. For example, in California, when compared with adults who live in single-family houses, adults who live in multiunit housing are more likely to be:
• People of color (62.9% of residents of multiunit homes versus 49.6% of residents of single- family houses);49
• Lower-income or below the poverty line (46.8% versus 27.0%);49 • Lacking a high school diploma (21.4% versus 14.8%);49 • Current smokers (17.5% versus 13.2%);49 as well as
• Uninsured (23.4% versus 14.2%);49
WHEREAS, secondhand smoke in multiunit housing is a significant threat to the health and safety of California children, as evidenced by the following:
• About a quarter of those who live in multiunit housing (25.2%) are under the age of 18;39 www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 23 PUBLIC HEALTH + American
LAW CENTER • Lung Association.
at Mitchell Hamline School of Law
: California July 2020
• The home is the primary source of secondhand smoke exposure for children;15 • A national survey found that 56.4% of U.S. youth living in apartment units in which no one smokes have elevated blood cotinine levels above 0.05 ng/mL, indicating they have been exposed to potentially dangerous levels of secondhand smoke;37 • The same survey also found that children who live in homes in which no one smokes indoors have 45% higher cotinine levels if they live in apartments compared with detached homes;37
WHEREAS, research consistently demonstrates that a majority of multiunit housing residents, including a large portion of smokers, supports smoke-free policies in multiunit residences, 36,55,56 and that support is even greater among residents with children; 56 WHEREAS, research demonstrates that a majority of adults supports smoke-free policies in multiunit residences, as evidenced by the following:
• 73.7% of U.S. adults surveyed favor smoke-free public housing:57 • 65% of Californians surveyed favor restricting smoking inside apartment units;58 [ insert local data if available 1
WHEREAS, there are significant savings from adopting a smoke-free multiunit housing policy, as evidenced by the following:
• Prior to implementation, the U.S. Department of Housing and Urban Development's smoke- free public housing policy was conservatively estimated to produce an annual savings of 4 to 8 million dollars a year for U.S. public housing authorities in renovation-related costs,59 and 30 to 109 million dollars per year in health care costs in California alone; 60 • Implementing statewide smoke-free policies in multiunit housing property would save property owners in California an estimated $18.1 million in renovation expenses each year;61 WHEREAS, in 2016 the United States Department of Housing and Urban Development issued a final rule requiring all public housing agencies to adopt smoke-free policies to protect residents from secondhand smoke exposure effective February 2017,62 WHEREAS, children, low-income tenants of public housing, and members of racial and ethnic minority groups are disproportionately exposed to secondhand smoke; and smoke-free housing policies have shown potential to reduce exposure in these populations; 63,64 www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 24 • Americal
PUBLIC HEALTH LAW CENTER - Luna Association
at Mitchell Hamline School of Law July 2020
California
WHEREAS, California state law allows local governments to adopt ordinances that permit residential rental agreements to prohibit smoking tobacco products within rental units;65 WHEREAS, more than 140 California cities and counties have adopted smoke-free multiunit housing ordinances;6
WHEREAS, there is no Constitutional right to smoke; 66
WHEREAS, California law declares that anything which is injurious to health or obstructs the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance,67
WHEREAS, local governments have broad latitude to declare nuisances and are not constrained by prior definitions of nuisance; 67,68
NOW THEREFORE, it is the intent of the [ city council/county board of supervisors ]in enacting this ordinance, to provide for the public health, safety, and welfare by discouraging the inherently dangerous behavior of smoking around nontobacco users; by protecting children from exposure to smoking where they live and play; and by protecting the public from nonconsensual exposure to secondhand smoke in and around their homes.
Endnotes
1 World Health Organization. WHO Report on the Global Tobacco Epidemic, 2019: Offer Help to Quit Tobacco Use. 2019.
Available at: https://apps.who.int/iris/handle/10665/326043. 2 U.S. Department of Health and Human Services. The Health Consequences of Smoking: 50 Years of Progress. A Report of the Surgeon General. Atlanta, GA: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health. 2014.
Available at: https://www.ncbi.nlm.nih.gov/books/NBK179276/pdf/Bookshelf_NBK179276.pdf. 3 Campaign for Tobacco-Free Kids. The Toll of Tobacco in California. Available at: www.tobaccofreekids.org/problem/toll- us/california. Accessed June 2, 2020.
4 Lortet-Tieulent J, Sauer AG, Siegel RL, et al. State-level cancer mortality attributable to cigarette smoking in the United States. JAMA Intern Med. 2016;176(12):1792-1798. doi:10.1001/jamainternmed.2016.6530, 5 U.S. National Cancer Institute. A Socioecological Approach to Addressing Tobacco-Related Health Disparities. National Cancer Institute Tobacco Control Monograph 22. NIH Publication No. 17-CA-8035A. Bethesda, MD: U.S. Department of Health and Human Services, National Institutes of Health, National Cancer Institute. 2017. Available at: https://can- cercontrol.cancer.gov/brp/tcrb/monographs/22/index.html. 6 California Tobacco Control Program, California Department of Public Health. California Tobacco Facts and Figures 2019.
Available at: https://www.cdph.ca.gov/Programs/CCDPHP/DCDIC/CTCB/CDPH%20Document%20Library/Re- searchandEvaluation/FactsandFigures/CATobaccoFactsandFigures2019.pdf. Accessed June 2, 2020. www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 25 PUBLIC HEALTH American
LAW CENTER Lung Association.
at Mitchell Hamline School of Law July 2020
California
7 U.S. Department of Health and Human Services. The Health Consequences of Involuntary Exposure to Tobacco Smoke. A Report of the Surgeon General. Atlanta, GA: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health. 2006. Available at: www.cdc.gov/tobacco/data_statistics/sgr/2006/index.htm. Accessed June 2, 2020. 8 Air Resources Board, California Environmental Protection Agency. Frequently Asked Questions - Environmental Tobac- co Smoke. Available at: https://ww2.arb.ca.gov/our-work/programs/environmental-tobacco-smoke-identified-tox- ic-air-contaminant. Accessed June 2, 2020.
9 California Identifies Secondhand Smoke as a "Toxic Air Contaminant" [press release]. January 26, 2006. Available at:
www.arb.ca.gov/newsrel/nr012606.htm. Accessed June 2, 2020. 10 Office of Environmental Health Hazard Assessment, California Environmental Protection Agency. The Proposition 65 list. https://oehha.ca.gov/proposition-65/proposition-65-list. Accessed June 19, 2020. 11 American Society of Heating Refrigerating and Air Conditioning Engineers (ASHRAE). 2015 Addenda Supplement to ANSI/ASHRAE Standard 62.1-2013, Ventilation for Acceptable Indoor Air Quality. Atlanta, GA: ASHRAE. 2015. Available at: https://www.ashrae.org/file%20library/technical%20resources/standards%20and%20guidelines/standards%20 addenda/62_1_2013_2015supplement_20150203.pdf.
12 American Heart Association. Policy Position on Smoke-Free Policies in Multi-Unit Housing. Washington, DC: American Heart Association. 2013. Available at: www.heart.org/idc/groups/ahaecc-public/@wcm/@adv/documents/download- able/ucm_469126.pdf.
13 American Lung Association. Public Policy Position - Healthy Air. Chicago, IL: American Lung Association. 2019. Available at:
https://www.lung.org/policy-advocacy/public-policy-agenda/public-policy-position-healthy-air. Accessed June 2, 2020. 14 DiGiacomo SI, Jazayeri MA, Barua RS, Ambrose JA. Environmental Tobacco Smoke and Cardiovascular Disease, Int J Environ Res Public Health. 2018;16(1):96. doi: 10.3390/ijerph16010096. 15 Centers for Disease Control and Prevention (CDC). CDC Vital Signs - Secondhand Smoke: An Unequal Danger. February 2015. Available at: www.cdc.gov/vitalsigns/pdf/2015-02-vitalsigns.pdf. Accessed June 3, 2020. 16 California Tobacco Control Program, California Department of Public Health. State Health Officer's Report on E-Cigarettes:
A Community Health Threat. Sacramento, CA. 2015. Available at: www.cdph.ca.gov/Programs/CCDPHP/DCDIC/CTCB/ CDPH%20Document%20Library/Policy/ElectronicSmokingDevices/StateHealthEcigReport.pdf. 17 National Academies of Sciences, Engineering, and Medicine. Public Health Consequences of E-Cigarettes. 2018. Washing- ton, DC: The National Academies Press. Available at: https://www.nap.edu/catalog/24952/public-health-consequenc- es-of-e-cigarettes.
18 Fowles J, Barreau T, Wu N. Cancer and Non-Cancer Risk Concerns from Metals in Electronic Cigarette Liquids and Aerosols. Int J Environ Res Public Health. 2020;17(6):2146. doi: 10.3390/ijerph17062146.| 19 U.S. Department of Health and Human Services. E-Cigarette Use Among Youth and Young Adults: A Report of the Surgeon General. Atlanta, GA: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health. 2016. Available at: https://www-ncbi-nlm-nih-gov.ezp1.lib.umn.edu/books/NBK538680/pdf/Bookshelf_NBK538680.pdf. 20 Romberg AR, Miller Lo EJ, Cuccia AF, et al. Patterns of nicotine concentrations in electronic cigarettes sold in the United States, 2013-2018. Drug Alcohol Depend. 2019:201:1-7. doi: 10.1016/j.drugalcdep.2019.05.029. 21 Cao DJ, Aldy K, Hsu S, et al. Review of Health Consequences of Electronic Cigarettes and the Outbreak of Electronic Cigarette, or Vaping, Product Use-Associated Lung Injury. J Med Toxicol. 2020 Apr 16. Doi: 10.1007/s13181-020-00772-w. www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 26 PUBLIC HEALTH American
LAW CENTER # Lung Association. July 2020
at Mitchell Hamline School of Law California
22 Staudt MR, Salit J, Kaner RJ, Hollmann C, Crystal RG. Altered lung biology of healthy never smokers following acute inhalation of E-cigarettes. Respiratory Research. 2018;19:78. doi:10.1186/s12931-018-0778-z. 23 Tzortzi A, Teloniatis SI, Matiampa G. et al. Passive exposure to e-cigarette emissions: Immediate respiratory effects.
Tob. Prev. Cessation. 2018:4(May):18. doi.org/10.18332/tpc/89977. 24 Shields PG, Berman M, Brasky TM, et al. A Review of Pulmonary Toxicity of Electronic Cigarettes In The Context of Smoking: A Focus On Inflammation. Cancer Epidemiol Biomarkers Prev. 2017;26(8):1175-1191. doi:10.1158/1055-9965.
EPI-17-0358.
25 Visser WF, Klerx WN, Cremers HWJM, et al. The Health Risks of Electronic Cigarette Use to Bystanders. Int J Environ Res Public Health. 2019;16(9):1525. doi: 10.3390/ijerph16091525. 26 Bayly JE, Bernat D, Porter L, Choi K. Secondhand Exposure to Aerosols From Electronic Nicotine Delivery Systems and Asthma Exacerbations Among Youth With Asthma. Chest. 2019;155(1) 88-93. doi: 10.1016/j-chest. 2018.10.005. 27 Tzortzi A, Teloniatis S, Matiampa G, et al. Passive Exposure of Non-Smokers to E-Cigarette Aerosols: Sensory Irrita- tion, Timing and Association With Volatile Organic Compounds. Environ Res. 2020;182:108963. doi: 10.1016/j.en- vres.2019.108963.28 Cullen KA, Ambrose BK, Genztke AS, et al. Notes from the field: use of electronic cigarettes and any tobacco product among middle and high school students-United States, 2011-2018. MMWR Morb Mortal Wkly Rep. 2018;67(45):1276-1277. doi: 10.15585/mmwr.mm6745a5. 29 Lin C, Baiocchi M, Halpern-Felsher B. Longitudinal trends in e-cigarette devices used by Californian youth, 2014-2018.
Addict Behav. 2020;108:106459. doi: 10.1016/j.addbeh.2020.106459. 30 American Society of Heating Refrigerating and Air Conditioning Engineers (ASHRAE). ASHRAE Position Document on Environmental Tobacco Smoke, Atlanta, GA: ASHRAE. 2019. Available at: https://www.ashrae.org/file%20library/about/ position%20documents/ashrae_pd_environmental_tobacco_smoke_2019.pdf. 31 State of California Tobacco Education and Research Oversight Committee (TEROC). Position on Electronic Smoking Devices (AKA E-cigarettes). 2015. Available at: www.cdph.ca.gov/Programs/CCDPHP/DCDIC/CTCB/CDPH%20Docu- ment%20Library/TEROC/InfoGraphicReportsLetters/TEROCECigarettePositionStatement122215.pdf. 32 California Environmental Protection Agency. Evidence on the Carcinogenicity of Cannabis Smoke. Sacramento, CA: Cali- fornia Environmental Protection Agency, Office of Environmental Health Hazard Assessment, Reproductive and Cancer Hazard Branch. 2009. Available at: https://oehha.ca.gov/media/downloads/proposition-65/chemicals/finalmjsmoke- hid.pdf.
33 Herrmann, ES, Cone, EJ, Mitchell, JM, et al. Non-Smoker Exposure to Secondhand Cannabis Smoke II: Effect of Room Ventilation on the Physiological, Subjective, and Behavioral/Cognitive Effects. Drug Alcohol Depend. 2015;151:194-202. doi: 10.1016/j.drugalcdep.2015.03.019.
34 Holitzki H, Dowsett LE, Spackman E, Noseworthy T, Clement F. Health effects of exposure to second- and third-hand marijuana smoke: a systematic review. CMAJ Open. 2017;5(4):E814-E822. doi:10.9778/cmajo.20170112. 35 King BA, Travers MJ, Cummings KM, Mahoney MC, Hyland AJ. Secondhand smoke transfer in multiunit housing. Nico- tine Tob Res. 2010;12:1133-1141. doi:10.1093/ntr/ntq162. 36 Snyder K, Vick JH, King BA. Smoke-free multiunit housing: a review of the scientific literature. Tob Control. 2016;25:9-20, doi:10.1136/tobaccocontrol-2014-051849.
37 Wilson KM, Klein JD, Blumkin AK, Gottlieb M, Winickoff JP. Tobacco smoke exposure in children who live in multiunit housing. Pediatrics. 2011;127(1):85-92. doi: 10.1542/peds.2010-2046. www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 27 PUBLIC HEALTH • American
LAW CENTER • Lung Association.
at Mitchell Hamline School of Law July 2020
California
38 Toy P, Yount C, Meng YY, et al. Health at Risk: Policies Are Needed to End Cigarette, Marijuana, and E-Cigarette Secondhand Smoke in Multi-Unit Housing in Los Angeles. Los Angeles, Calif.: UCLA Center for Health Policy Research. 2020. Available at: http://healthpolicy.ucla.edu/publications/Documents/PDF/2020/Health-at-Risk-policybrief-may2020.pdf. 39 King BA, Babb SD, Tynan MA, Gerzoff RB. National and state estimates of secondhand smoke infiltration among U.S. multiunit housing residents. Nicotine Tob Res. 2013; 15(7):1316-1321. doi:10.1093/ntr/nts254. 40 Kuschner WG, Reddy S, Mehrotra N, Paintal HS. Electronic cigarettes and thirdhand tobacco smoke: two emerging health care challenges for the primary care provider. Int J Gen Med. 2011;4:115-20. doi:10.2147/IJGM.S16908. 41 Whitlatch A, Schick S. Thirdhand Smoke at Philip Morris. Nicotine Tob Res. 2019;21(12):1680-1688. doi: 10.1093/ntr/ nty153.
42 Matt GE, Quintana PJE, Zakarian JM, et al. When smokers move out and non-smokers move in: residential thirdhand smoke pollution and exposure. Tob Control. 2011;20(1):e1. doi:10.1136/tc.2010.037382. 43 Matt GE, Quintana PJE, Hoh E, et al. Persistent Tobacco Smoke Residue in Multiunit Housing: Legacy of Permissive Indoor Smoking Policies and Challenges in the Implementation of Smoking Bans. Prev Med Rep. 2020;18:101088. doi:
10.1016/j.pmedr.2020.101088.
44 Sleiman M, Gundel LA, Pankow JF, Jacob P, Singer BC, Destaillats H. Formation of carcinogens indoors by surface-me- diated reactions of nicotine with nitrous acid, leading to potential thirdhand smoke hazards. Proc Natl Acad Sci U S A. 2010;107(15):6576-81. doi:10.1073/pnas.0912820107.
45 Hang B, Sarker AH, Havel C, et al. Thirdhand smoke causes DNA damage in human cells. Mutagenesis. 2013;28(4):381-
91. doi:10.1093/mutage/get013.
46 Hang B, Wang P, Zhao Y, et al. Thirdhand Smoke: Genotoxicity and Carcinogenic Potential. Chronic Dis Trans! Med. 2019;6(1):27-34. doi: 10.1016/j.cdtm.2019.08.002.
47 U.S. Fire Administration. Fire in the United States 2008-2017. Emmitsburg, MD: Department of Homeland Security, Fed- eral Emergency Management Agency, U.S. Fire Administration. 2019. Available at: https://www.usfa.fema.gov/down- loads/pdf/publications/fius20th.pdf.
48 National Fire Protection Association. Home Fires Started by Smoking. Quincy, MA: National Fire Protection Association. 2019. Available at: https://www.nfpa.org/-/media/Files/News-and-Research/Fire-statistics-and-reports/US-Fire- Problem/Fire-causes/ossmoking.ashx.
49 Chambers C, Sung H, Max W. Home Exposure to Secondhand Smoke among People Living in Multiunit Housing and Single Family Housing: A Study of California Adults, 2003-2012. J Urban Heal. 2015;92(2):279-90. doi:10.1007/s11524- 014-9919-y.
50 Hollar TL, Cook N, Quinn D, Phillips T, DeLucca M. Smoke-free multiunit housing policies show promise in reduc- ing secondhand smoke exposure among racially and ethnically diverse, low-income seniors. J Immigr Minor Health. 2017;19(6):1281-1289. doi.org/10.1007/s10903-016-0430-2. 51 Gentzke AS, Hyland A, Kiviniemi M, Travers MJ. Attitudes and Experiences with Secondhand Smoke and Smoke-Free Policies Among Subsidised and Market-Rate Multiunit Housing Residents Living in Six Diverse Communities in the USA. Tob Control. 2018;27(2):194-202. doi: 10.1136/tobaccocontrol-2016-053374. 52 Young W, Karp S, Bialick P, et al. Health, Secondhand Smoke Exposure, and Smoking Behavior Impacts of No-Smoking Policies in Public Housing, Colorado, 2014-2015. Prev Chronic Dis. 2016;13:E148. doi: 10.5888/pcd13.160008. 53 Nguyen KH, Gomez Y, Homa DM, King BA. Tobacco Use, Secondhand Smoke, and Smoke-Free Home Rules in Multiunit Housing. Am J Prev Med. 2016;51(5):682-692. doi: 10.1016/j.amepre.2016.05.009. www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 28 PUBLIC HEALTH Americar
LAW CENTER FLung Association.
July 2020
at Mitchell Hamline School of Law
California
54 Holmes LM, Llamas JD, Smith D, Ling PM. Drifting Tobacco Smoke Exposure Among Young Adults in Multiunit Housing.
J Community Health. 2020;45(2):319-328. doi: 10.1007/s10900-019-00743-5. 55 Delgado-Rendon A, Cruz TB, Soto D, Baezconde-Garbanati L, Unger JB. Second and Thirdhand Smoke Exposure, Atti- tudes and Protective Practices: Results from a Survey of Hispanic Residents in Multiunit Housing. J Immigrant Minority Health. 2017;19(5):1148-1155. doi.org/10.1007/s10903-016-0540-x. 56 Wilson KM, Torok MR, McMillen RC, et al. Tobacco-Smoke Incursions and Satisfaction Among Residents With Children in Multiunit Housing, United States, 2013. Public Health Rep. 2017;132(6):637-645. doi: 10.1177/0033354917732767. 57 Wang TW, Lemos PR, McNabb S, King BA. Attitudes toward Smoke-Free Public Housing among US Adults, 2016. Am J Prev Med. 2018 Jan;54(1):113-118. doi: 10.1016/j.amepre.2017.08.026. 58 American Lung Association of California. California Voter and Rural Voter Attitudes About Secondhand Smoke in Multi-Unit Housing: Public Opinion Survey. 2018.
59 McFarlane A, Djoko Y, Woodward A. Instituting Smoke-Free Public Housing: An Economic Analysis. Cityscape. 2017:19(3):435-448. Available at: https://www.huduser.gov/portal/periodicals/cityscpe/vol19num3/ch24.pdf. 60 King BA, Peck RM, Babb SD. National and State Cost Savings Associated with Prohibiting Smoking in Subsidized and Public Housing in the United States. Prev Chronic Dis. 2014;11:E171. doi: 10.5888/pcd11.140222. 61 Ong MK, Diamant AL, Zhou Q, Park HY, Kaplan RM. Estimates of smoking-related property costs in California multiunit housing. Am J Public Health. 2012; 102(3):490-493. doi:10.2105/AJPH.2011.300170. 62 Instituting Smoke-Free Public Housing, 81 FR 87430 (December 5, 2016). www.federalregister.gov/docu- ments/2016/12/05/2016-28986/instituting-smoke-free-public-housing. Accessed June 4, 2020. 63 Vijayaraghavan M, Schroeder SA, Kushel M. The effectiveness of tobacco control policies on vulnerable populations in the USA: a review. Postgrad. Med J. 2016;92:670-676. doi.org/10.1136/postgradmedj-2014-133193. 64 Hafez AY, Gonzalez M, Kulik MC, Vijayaraghavan M, Glantz SA. Uneven Access to Smoke-Free Laws and Policies and Its Effect on Health Equity in the United States: 2000-2019. Am J Public Health. 2019;109(11):1568-1575. doi: 10.2105/ AJPH.2019.305289.
65 Cal. Civ. Code § 1947.5.
66 Public Health Law Center. There Is No Constitutional Right to Smoke or Toke. Saint Paul, MN: Public Health Law Center. 2019. Available at: https://publichealthlawcenter.org/sites/default/tiles/resources/No-Constitution- al-Right-Smoke-Toke-2019.pdf.
67 Cal. Civ. Code § 3479.
68 In Re Jones, 56 Cal.App.2d 658, 663 (1943); See also Cal. Const., art. XI, § 7 and Cal. Gov. Code § 38771. www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 29
PETS AMERICAN
POLICY EVALUATION ANRF NONSMOKERS'
TRACKING SYSTEM RIGHTS FOUNDATION
Matrix of Smokefree Multi-Unit Housing Policies in California January 2023
California municipalities are at the forefront of expanding smokefree air protections by adopting policies that regulate smoking in multi-unit housing in order to create healthier living environments for residents by reducing exposure to drifting secondhand smoke.
This matrix provides an overview of key policy provisions in the 95 California municipalities that have enacted ordinances that at minimum regulate smoking in private units of multi-unit housing. Overall, 190 California municipalities regulate smoking in multi-unit housing to some extent. The municipalities not included on this matrix have enacted policies that regulate smoking in multi-unit housing to a lesser extent than in private units (i.e. indoor common areas, outdoor common areas, and/or outdoor private use areas like balconies and patios) or limit the regulation of smoking to publicly owned/affordable multi-unit housing.
Note: This matrix includes both policies that are on the PETS website, which is current through March 31, 2021, and more recently enacted and analyzed policies that are not yet in the PETS database. Jurisdictions with new or updated policy provisions on this matrix that are not yet on PETS are denoted by ~. The matrix does not include policies that have not yet been analyzed by ANRF staff. 95 California municipalities have enacted ordinances that regulate smoking in private units of multi-unit housing (MUH):* • 44 municipalities require all MUH properties with 2 or more units to be 100% smokefree indoors-both rental units and condominium/owner-occupied units-and including e-cigarette use and marijuana smoking/vaping.** The names of municipalities with these strongest policies are in bold.
• 58 municipalities require all MUH properties with 2 or more units to be 100% smokefree indoors for tobacco-both rental units and condominium/owner-occupied units-but may not fully include e-cigarette use and/or marijuana smoking/vaping in the policy. • 9 municipalities require all rental MUH properties with 2 or more units to be 100% smokefree indoors but exempt some or all condominium/owner-occupied units.
• 17 municipalities have partial policies that require some, but not all, units or buildings to be smokefree, or contain other exemptions such as allowing existing residents to continue smoking in their unit. These weaker, partial policies are in blue text. *The 95 municipalities that regulate smoking in private units of multi-unit housing to some extent cover 5,809,281 Californians, or 14.8% of the state population.
** The 44 municipalities with the strongest multi-unit housing laws cover 2,245, 193 Californians, or 5.7% of the state population.
See Definitions and Explanatory Notes starting on page 9.
Policy Provisions
Includes Includes
Key Effective Date % of Units Exempts Includes Smoking/
Enactment Population Minimum Existing
Municipality County E-Cigarette
Dates (Phase-in Time) # of Units Smokefree Residents Condos Vaping Use
Marijuana
11/15/2011 1/1/2013 100%
1. Alameda Alameda 79,827 No Yes Yes Yes
(13.5 months)
2.O Alameda Alameda 1/25/2022 (5 montes 149,895 100% No Yes Yes -Yes County~
Alameda 2/21/2017 3/24/2018 100%
3. Albany 20,145 No Yes Yes Yes
(13 months)
6/21/12 new,
4. Baldwin Los Angeles 11/2/2011 12/2/14 existing 75,659 100% new/ No Yes Smoking Park 80% existing Yes Prohibited
(3 years)
5. Bell Gardens Los Angeles 10/14/2019 6/1/2021 41,770 100% No Yes Yes Yes (20 months)
1/8/2009 100%
6. Belmont San Mateo 10/9/2007 26,963 No Yes Yes Yes
(15 months)
11/9/2017
7. Belvedere Marin 10/10/2016 2,246 100% No Yes Yes Yes (13 months)
9/2/2020
8. Benicia Solano 12/3/2019 28,158 100% No Yes Yes Yes
(9 months)
Alameda 12/17/2013, 5/1/2014 100% - Yes
9. Berkeley~ 123,065 No Yes Yes
10/27/2020 (4.5 months)
10. Beverley 1/1/2019 100% Vaping
Los Angeles 10/3/2017 33,709 No Yes Yes
Hills (15 months) Prohibited
6/3/2017 100% Medical Use
11. Brisbane San Mateo 11/3/2016 4,645 No Yes Yes
(6.5 months) Exempt
Policy Provisions
Exempts Includes Includes
Key Effective Date Minimum % of Units Includes Smoking/ Municipality County Enactment (Phase-in Time) Population #of Units Smokefree Existing Condos E-Cigarette Vaping Dates Residents Use
Marijuana
5/1/2011 N/S No (Not
12. Burbank Los Angeles 10/5/2010 (7 months) 103,411 No Yes Yes Addressed)
2/13/2016 No (Not Medical Use
13. Burlingame San Mateo 8/17/2015 30,071 100% No No
(6 months) Addressed) Exempt
1/1/2012 23,842 80% Yes No Yes Yes
14. Calabasas Los Angeles 1/16/2008
(4 years)
5/1/2018 5/1/2019 11,585 100% No Yes Yes
15. Clayton Contra Costa ..Yes
(12 months)
10/25/2011 1/1/2013 95,804 100% No Yes Yes Yes
16. Compton Los Angeles
(14 months)
Contra Costa 1/7/2020 1/1/2021 129,227 100% No Yes Yes Yes
17. Concord (12 months)
18. Contra Costa 3/13/2018 7/1/2019 175,674 100% No
Contra Costa (15.5 months) Yes Yes Yes
County
12/2/14 new,
19. Corte Marin 5/6/2014, 6/5/15 existing 9,793 100% No Yes Yes Yes Madera~ 5/4/2021 (13 months)
10/13/2015 1/1/2017 7,487 100% res Medical Use
20. Cotati Sonoma No Yes
(14.5 months) Exempt
21. Crescent 1/1/21 new,
Del Norte 11/16/2020 1/1/22 existing 6,690 100% No Yes Yes Yes (14 months)
1/1/19 condos,
22. Cudahy~ Los Angeles 12/4/2018 1/3/20 rentals 23,606 100% No Yes Yes Yes (13 months)
5/26/2016 100% Specifically Smoking
23. Culver City Los Angeles 10/27/2014 38,913 No Yes
(19 months) Exempt Prohibited
6/16/2021 10/1/2021 100%
24. Cupertino~ Santa Clara 59,799 No Yes Yes Yes
(3.5 months)
10/22/2012 1/21/2014 100%
25. Daly City San Mateo 107,197 No No Yes _Ves
(15 months)
Policy Provisions
Includes Includes
Key Effective Date Minimum % of Units Exempts Includes Smoking/ Municipality County Enactment (Phase-in Time) Population # of Units Smokefree Existing E-Cigarette Dates Residents Condos Use Vaping
Marijuana
26. Danville Contra Costa 11/17/2015 5/1/2016 44,933 100% No Yes Yes Yes
(5.5 months)
Alameda 7/19/2011 1/1/2013 63,856 16 75%
27. Dublin No No Yes Yes
(17.5 months)
10/7/2014 10/1/2015 100%
28. El Cerrito Contra Costa 25,280 No Yes Yes Yes
(12 months)
1/19/2016 8/19/2017 100% Yes Medical Use
29. El Monte Los Angeles 113,917 No Yes
(19 months) Exempt
7/1/2019 11,679 100%
30. Emeryville Alameda 9/17/2018 No Yes Yes Yes
(9.5 months)
9/1/2012 7,629
31. Fairfax Marin 6/1/2011 75% No No Yes Yes
(15 months)
7/1/2019 100%
32. Firebaugh Fresno 5/20/2019 7,772 No Yes Yes Yes
(1.5 months)
11/17/2014 11/5/2015 N/S 100%
33: Foster City San Mateo 33,056 No Yes Yes - Yes
34. Fremont Alameda 12/6/2016 2/1/2017 234,829 100% new/ No Yes Yes Yes (2 months) 0% existing
1/1/2022 100%
35. Fresno~ Fresno 10/28/2021 526,147 No No Yes Yes
(2 months)
5/28/2013 6/27/2013 100% new/ No (Not
36. Glendale Los Angeles 199,357 0% existing No Yes Yes (1 month) Addressed)
Santa 8/27/2020
37. Guadalupe~ 7/28/2020 7,654 100% No Yes Yes Yes
Barbara (1 month)
38. Half Moon 1/15/2020 Medical
San Mateo 10/16/2018 (15 months) 12,583 100% No Yes Yes Vaping Bay
Exempt
5/6/2020 11,924 100% Yes Yes
39. Healdsburg Sonoma 5/6/2019 No Yes
(12 months)
7/1/2020
40. Hercules Contra Costa 5/14/2019 26,090 10 100% No Yes Yes - Yes (14 months)
Policy Provisions
Includes Includes
Key Effective Date Minimum % of Units Exempts Includes
Population Existing E-Cigarette Smoking/
Municipality County Enactment (Phase-in Time) # of Units Smokefree Condos Dates Residents Use Vaping
Marijuana
41. Huntington Los Angeles 3/5/2012 7/1/2013 100% rental/ Yes, 80% Yes Park (16 months) 57,761 80% condos condos Yes
3/6/21 new, 100% new/
42. Jurupa 8/3/21
Riverside 2/4/2021 106,646 designated Yes No Yes Yes
Valley~ designated units existing units
(6 months)
2/10/2014 100% new/ Specifically No (Not
43. Lafayette Contra Costa 11/12/2013 25,949 Yes Yes
(3 months) 0% existing Exempt Addressed)
5/20/11 new,
4/20/2011, 11/17/11
44. Larkspur~ Marin 12,363 100% No Yes Yes Yes
8/18/2021 existing
(7 months)
San 6/24/2008 1/1/2012 70% Yes No No (Not Smoking
45. Loma Linda Bernardino (3.5 years) 24,239 Addressed) Prohibited Santa Clara 5/26/2016 6/25/2017 100% No No Yes Yes
46. Los Gatos (13 months) 31,943
47. Manhattan 10/20/2015 5/5/2017 35,064 100% No Yes Yes Yes Beach Los Angeles (18.5 months)
2/16/13 new,
48. Marin Marin 5/22/2012, 8/20/13 existing 68,575 100% No Yes Yes Yes County~ 9/14/2021 (15 months)
11/18/2016 100% No Yes Yes Yes
49. Mill Valley Marin 10/19/2015 (13 months) 14,456
1/1/2020
50. Millbrae San Mateo 7/23/2019 22,998 100% No Yes Yes Yes (5 months)
6/15/2021 1/1/2022 100% No Yes Yes Yes
51. Militas Santa Clara 75,182
(6.5 months)
52. Monte Santa Clara 9/1/2020 10/1/2020 3,511 100% No Yes Yes Sereno~ (1 month) .. Yes
Policy Provisions
Includes Includes
Key Effective Date Minimum % of Units Exempts Includes Smoking/ Municipality County Enactment (Phase-in Time) Population # of Units Existing Condos E-Cigarette Dates Smokefree Residents Use Vaping
Marijuana
2/1/2019
53. Moorpark Ventura 12/20/2017 36,443 100% No No Yes Yes (13.5 months)
San Luis 4/28/2020 8/1/2020 100%
54. Morro Bay 10,592 No Yes Yes Yes
Obispo (3 months)
55. Mountain Santa Clara 6/8/2021 1/1/2022 80,104 100% No Yes Yes View~ (6.5 months) Yes
56. Novato Marin 1/24/2017 1/1/2018 100% No Yes
(11 months) 53,781 Yes Yes
4/1/2014 100% new/ No (Not Vaping
57. Oakley Contra Costa 2/11/2014 (1.5 months) 41,656 0% existing No Yes Addressed) Exempt
58. Pacific 10/1/2021
Monterey 12/18/2019 15,471 100% No Yes Yes Yes
Grove (21.5 months)
59. Pacifica San Mateo 9/9/2019 10/9/2020 38,663 100% No Yes Yes Yes (13 months)
1/1/2018 100% Smoking
60. Palo Alto~ Santa Clara 1/9/2017 67,973 No Yes Yes
(12 months) Prohibited
7/11/2011 1/1/2013 142,017 100% No (Not
61. Pasadena Los Angeles No Yes Yes
(18 months) Addressed)
1/1/2014 100%
62. Petaluma Sonoma 1/28/2013 60,865 No Yes Yes Yes
(11 months)
63. Pinole Contra Costa 9/17/2019 10/18/2019 19,343 100% No Yes Yes No (Not (1 month) Addressed)
4/5/10 new, 100% new/
64. Pleasant Hill Contra Costa 4/5/2010 1/1/16 existing 34,903 No No Yes Vaping 50% existing Prohibited
(5 years)
Medical Use
65. Pleasanton~ Alameda 9/5/2017, 10/4/2018 79,975 100% No No? Yes Exempt in 12/21/2021 (13 months) Outdoor
Area
Policy Provisions
Exempts Includes Includes
Key Minimum % of Units Includes
Population Existing E-Cigarette Smoking/
Municipality County Enactment (Phase-in Time) #of Units Smokefree Condos Dates Residents Use Vaping
Marijuana
66. Rancho 10/5/2020 10/5/2021 74,394 100%
Sacramento (12 months) No Yes Yes Yes
Cordova
67. Redwood 11/13/2017 1/1/2019 100%
San Mateo (13.5 months) 84,518 No Yes Yes Yes
City
Medical
7/21/2009 1/1/2011 100%
68. Richmond Contra Costa 110,051 No Yes Yes Smoking
(17.5 months)
Exempt
69. Rohnert Sonoma 1/23/2018 4/23/2018 42,559 100% No Yes Yes Yes Park (3 months)
2/9/2020 2,453 100%
70. Ross Marin 1/11/2019 No Yes Yes Yes
(13 months)
71. San 12/9/2014 1/8/2016 12,623 100% No Yes Yes
Marin Yes
Anselmo (13 months)
San Mateo 11/22/2016 2/22/2018 44,663 100% No Yes Yes Yes
72. San Bruno (15 months)
7/8/2020
73. San Carlos San Mateo 4/8/2019 29,647 100% No Yes Yes Yes (15 months)
8/16/2017 100% Yes
74. San Mateo San Mateo 7/17/2017 103,619 No Yes Yes
(1 month)
75. San Mateo 2/4/2016 65,142 Specifically
San Mateo 11/4/2014 (15 months) 100% No Yes Yes.
County Exempt
7/1/2021 30,959 100% No No
76. San Pablo Contra Costa 2/18/2020 Yes Yes
(16.5 months)
11/14/2013 Specifically No (Not
77. San Rafael Marin 10/15/2012 59,178 100% No Yes
(13 months) Exempt Addressed)
8/1/2019
78. Santa Clara Santa Clara 2/5/2019 (6 months) 126,723 100% No Yes Yes Yes
79. Santa Clara Santa Clara 11/9/2010 2/9/2012 100% Yes No (Not 83,801 No Yes
County (15 months) Addressed)
Policy Provisions
Includes
Key Effective Date Minimum % of Units Exempts Includes Includes Smoking/ Municipality County Enactment Population # of Units Smokefree Existing Condos E-Cigarette Dates Residents Use Vaping
Marijuana
100% new/
80. Santa 10/23/2012 11/22/2012 N/S Designated
Los Angeles 91,600 Yes Yes Yes Yes
Monica (1 month) existing units
8/7/2016 100%
81. Santa Rosa Sonoma 7/7/2015 178,391 No Yes Yes Yes
(13 months)
Santa Clara 8/17/2016 9/16/2016 31,084 100%
82. Saratoga No No Yes Yes
(1 month)
2/27/13 new, 100% new/ Medical
83. Sausalito Marin 7/31/2012 8/30/13 existing 7,177 No Yes Yes Smoking (13 months) 80% existing
Exempt
11/2/2011 Medical Use
84. Sebastopol Sonoma 8/3/2010 7,664 100% No Yes Yes
(15 months) Exempt
12/12/2016
85. Sonoma Sonoma 11/8/2016 11,082 100% No Yes Yes Yes
(1 month)
86. Sonoma 1/12/2013 No (Not No (Not
Sonoma 9/13/2011 140,340 100% No Yes
County (16 months) Addressed) Addressed)
87: South 3/3/11 new, 100% new/
Los Angeles 8/4/2010 9/4/13 existing 25,478 No Yes Yes Yes Pasadena 80% existing
(3 years)
88. South San 11/9/2017 100% No
San Mateo 11/9/2016 66,878 Yes Yes Yes
Francisco (12 months)
89. Sunnyvale 9/23/2016 100%
Santa Clara 2/23/2016 152,569 No Yes Yes Yes
(7 months)
11/8/07 new, Medical Use
90. Temecula Riverside 5/8/2007 113,117 10 25% Yes N/S No (Not Addressed) Exempt
(5 years)
91. Tiburon Marin 7/18/2018 10/18/2018 9,167 100% No Yes Yes Yes (3 months)
2/23/2012 75,067
92. Union City Alameda 11/23/2010 (15 months) 100% No No Yes Yes Policy Provisions
Key Exempts Includes Includes
Effective Date Minimum % of Units Includes Smoking/
Municipality County Enactment Population Existing E-Cigarette (Phase-in Time) # of Units Smokefree Condos Vaping
Dates Residents Use
Marijuana
1/30/2014 Medical
93. Walnut 10/1/2013 69,836 100% No
Contra Costa (4 months) Yes Yes Vaping
Creek
Exempt
94. West 5/19/2021 100% new/ Specifically Smoking
Los Angeles 4/19/2021 35,506 No Yes and Vaping
Hollywood~ (1 month) 0% existing Exempt
Exempt
Sonoma 5/17/2017 8/15/2017 27,635 100% No Yes Yes
95. Windsor (3 months) Yes
Explanatory Notes:
Policies that require all rental and condominium/owner-occupied properties with 2 or more units to be 100% smokefree-and include e- cigarette use and marijuana smoking/vaping—are in bold.
Policies that require all rental and condominium/owner-occupied properties with 2 or more units to be 100% smokefree-whether or not the policy addresses e-cigarette use and marijuana smoking/vaping—have a blue background.
Policies that require MUH units to be 100% smokefree but apply to buildings with 3 or more units, or do not fully include e-cigarette use and/or marijuana smoking/vaping in the policy-are not bolded.
Partial policies that require less than 100% of rental units to be smokefree are listed in blue text. ~ = Jurisdiction has new or updated policy provisions not yet available on the PETS website.
N/S = Not Specified: The law does not provide details on this policy provision. 1 = Smoking prohibited in multi-unit buildings when units share heating or cooling systems. 2 = Smoking is not prohibited in condominium units, but is prohibited in indoor and outdoor common areas, and on balconies/patios, of condominium properties with 3+ units.
Note: ANRF is aware of additional smokefree housing policies enacted in jurisdictions—including Alameda County, Fairfax, and San Rafael—which will be added to the matrix once the policies have undergone PETS analysis.
Definitions:
Key Enactment Dates: The date of the jurisdiction's primary policy addressing smoking in units of MUH, as well as the dates of any significant amendments to the policy. Jurisdictions may have enacted multiple policies regulating smoking in MUH.
Effective Date: The final date when the primary policy is in full effect. Policies often have an initial effective date for when common areas and newly occupied units must be smokefree, and a final effective date when the policy is in effect for residents living in the building at the time the policy is enacted.
Phase-in Time: The length of time between the policy's enactment date and when it went into full effect. The phase-in time does not reflect the unknown date in the future when buildings will be 100% smokefree for policies that exempt existing residents indefinitely.
Minimum # of Units: The minimum number of units in MUH buildings that are necessary for the policy to apply. The best practice is for policies to apply to MUH buildings with 2 or more units. % of Units Smokefree: The percent of units in MUH buildings that are required to be smokefree when the law is fully in effect. The best practice is for policies to require 100% of units in all MUH buildings to be smokefree. If a policy has different requirements for new units versus existing units, the percentages are specified as "X% new, Y% existing." Existing Residents Exempt: Indicates if the policy allows residents living in MUH buildings at the time the law is adopted to continue smoking in their unit indefinitely. This exemption is often referred to as a grandfathering provision.
Includes Condos: Indicates if the policy covers condominiums, townhomes, and other types of owner-occupied MUH buildings.
Includes E-Cigarettes: Indicates if policy regulates the use of electronic smoking devices, like e-cigarettes and other vaping products, in the same manner as it regulates smoking tobacco. As of 2016, the California Business and Professions Code Section 22950.5(c) defines smoking to include the use of an electronic smoking device. This matrix reflects the language included in each municipal policy, some of which do not address the use of these products or include exemptions that may not be consistent with current state definitions.
Includes Marijuana: Indicates if policy regulates smoking and vaping marijuana/cannabis in the same manner as it regulates smoking tobacco. Since 2017, California Health and Safety Code Section 11362.1(2) prohibits smoking marijuana/cannabis in almost all locations where smoking tobacco is prohibited, including residential areas. This matrix reflects the language included in each municipal policy, some of which do not address marijuana/cannabis or include exemptions that may not be consistent with current state definitions.
ANR Foundation is actively collecting policies for the PETS Database. If you know of local laws that you think should be included in this matrix, or want to inquire about additional information on particular laws, please contact the ANR Foundation at [email protected]. © 2023, California Department of Public Health. This material may not be reproduced or disseminated without prior written permission from the California Department of Public Health. 10 PUBLIC HEALTH American
LAW CENTER / FAng Association. September 2022
at Mitchell Hamline School of Law
California
Law and Policy Partnership to End the Commercial Tobacco Epidemic
SMOKE-FREE MULTI-UNIT
HOUSING ENFORCEMENT GUIDE
ar Overview
This guide is designed to help decisionmakers
and stakeholders enacting or modifying smoke-
free multi-unit housing policies in determining
the best options for equitable enforcement.
It is meant to be used as a companion to the
Partnership's model ordinance, which contains THIS IS A SMOKE more detailed language and explanation of various
FREE BUILDING
enforcement choices. For further information on
topics relevant to multi-unit housing ordinances,
such as content on cannabis regulation or tenant
resources, see our California resource page.
Not all jurisdictions have the same resources or have been used across many jurisdictions, while community preferences, so we have included others are emerging strategies. a range of enforcement options and provided
context for the benefits and cautions of each Having access to safe, affordable, stable housing from an equity perspective. We have provided is a key to both physical and mental health recommendations as to which enforcement outcomes. But allowing smoking in shared housing options are considered best practices and makes safe and stable housing difficult to achieve more equitable (coded green •), which health for all residents. Exposure to secondhand options might require some more caution smoke in multi-unit housing can lead to poor or consideration (coded yellow •), and the health, including asthma and other lung problems, options that the Partnership recommends particularly among pregnant women, children, against (coded red *). Some of these options and the elderly. The health impacts of secondhand www.publichealthlawcenter.org/caltobacco
PUBLIC HEALTH • American
LAW CENTER - Lung Association.
at Mitchell Hamline School of Law
California September 2022
NO
SMOKING
WITHIN
ROCK CREEK
HOA PROPERTY
VIOLATORS
WILL BE FINED
smoke are also felt most by communities of color, and other vulnerable groups. For instance, Hispanic/Latinx residents and African American children have some of the highest secondhand smoke exposure levels. Thirdhand smoke — residual nicotine and other chemicals left on furniture, walls, and other surfaces by commercial tobacco' smoke — is also toxic, particularly to children.
Enforcement is important to ensure effective compliance and implementation of smoke-free multi- unit housing policies. Enforcement can and should achieve the dual goals of protecting residents from secondhand smoke exposure and ensuring housing stability for all residents whenever possible.
Several factors should be considered in pursuing these goals, such as: the likely effectiveness of enforcement; equity (balancing the public health benefits of smoke-free housing policies with the risks of housing instability and associated health harms or negative social outcomes such as racial profiling posed by different enforcement mechanisms); and the process of enforcement. Part of the consideration for equitable enforcement should involve determining which entity (e.g., code enforcement, landlord, city or county attorneys, the public, police) is best positioned to effectively enforce and will result in the fewest potential negative collateral consequences.
In addition to the enforcement options discussed below, engaging in an education campaign such as providing educational materials or presentations for residents, staff training, and signage or notices to residents could reduce the number of tenants in violation of any policy. Further, including cessation information in an education campaign can promote behavior change and support people in quitting. See our model ordinance for more information.
We acknowledge that in the context of the current housing crisis, particularly concerns around COVID-19 and expiring eviction moratoriums, there is an understandably heightened concern around the best options for enforcement in this area. The Partnership stands ready to provide legal technical assistance on questions related to a particular jurisdiction or enforcement strategy. www.publichealthlawcenter.org/caltobacco Smoke-Free Multi-Unit Housing Enforcement Guide 2 PUBLIC HEALTH • American
LAW CENTER H. • Lung Association.
at Mitchell Hamline School of Law September 2022
California
• Most preferred/most equitable
Proceed with caution
* Not recommended by the Partnership
Enforcement Options
• Graduated enforcement by landlord
Benefits
• Taking tiered steps to violations such as providing cessation materials, verbal or written warnings to tenants, informal conferences, or requiring written acknowledgment of the policy can improve compliance (see NYC Housing Authority example, MN model lease addendum, or other examples)
• Providing cessation materials can help support smokers affected by smoke-free policies to quit
• Using steps like "resetting the clock" if there has been no violation for a certain period, or if a tenant has completed cessation support counseling, can give residents second chances and incentivizes compliance
• Can prohibit eviction as a penalty
Cautions
• These tiered steps may not be sufficient to obtain compliance, so there may need to be a stronger penalty as a last resort
• Civil fines against landlords/HOAs
Benefits
• Civil fines for landlords for violations of smoke-free ordinances can be effective at incentivizing enforcement by landlords, and can also be graduated • Can be an effective incentivize for HOAs, as they have fiduciary responsibility for their owners' money
• Can limit the potential negative consequences of direct enforcement against tenants, such as civil fines
www.publichealthlawcenter.org/caltobacco Smoke-Free Multi-Unit Housing Enforcement Guide 3 PUBLIC HEALTH • American
LAW CENTER Lung Association.
at Mitchell Hamline School of Law September. 2022
California
• Can allow tenants to initiate enforcement by registering a complaint with a designated local government employee
Cautions
• Landlords or HOAs may be motivated to take stronger steps against tenants than they otherwise would, potentially including actions like eviction V Community service
Benefits
• As an alternative to civil fines, community service can limit the financial hardship on residents • Can be tailored to assist tobacco cessation or tobacco waste cleanup efforts Cautions
• Community service may still pose a financial hardship to some individuals, such as if they are required to miss work or arrange for childcare
• If enforced by police, may open the door to other collateral consequences • May require community to invest in new resources or programs • Restorative justice?
Benefits
• Restorative justice, if all impacted parties agree to participate as an alternative to other enforcement, can be a very effective way to repair harm and potentially transform behavior Cautions
• Requires involvement of individuals trained in restorative justice practices, so may have some budget impacts
• Since it requires willing participation from all parties, it may not always be possible to use this approach
• Nuisance?
Benefits
• Permits a range of nuisance abatement tools commonly used by city or county attorneys, such as restraining orders, or preliminary or permanent injunctions www.publichealthlawcenter.org/caltobacco Smoke-Free Multi-Unit Housing Enforcement Guide 4 PUBLIC HEALTH American
LAW CENTER FLung Association.
at Mitchell Hamline School of Law September 2022
California
Cautions
• May require too many local government resources to be widely used • May expose marginalized communities to unnecessary involvement with law enforcement • May result in escalated consequences or misdemeanor charges in some jurisdictions • Enforcement through lease
Benefits
• Including smoke-free requirements in lease terms (with appropriate language translations) creates clear expectations for new and existing tenants Cautions
• Depending on how drafted, could allow for evictions, which can impact health outcomes and worsen existing economic disparities (see full discussion below) Civil fines against tenants
Benefits
• Enforcement by housing inspectors, health departments, or other civil employees removes the potential collateral consequences from police/criminal enforcement • Could act as a deterrent in some circumstances
Cautions
• May be a budget impact on a jurisdiction to add new duties to city or county workers • Administrative fines may cause financial hardship depending on a resident's financial circumstances
• Risk of discriminatory/unequal enforcement
Private civil right of action
Benefits
• Allowing private civil actions can help ensure there is adequate enforcement of smoke- free policies
• Gives some agency to tenants to act on their own behalf www.publichealthlawcenter.org/caltobacco Smoke-Free Multi-Unit Housing Enforcement Guide 5 PUBLIC HEALTH • American
LAW CENTER Lung Association.
at Mitchell Hamline School of Law September 2022
California
Cautions
• When directed against other tenants, there is a risk of discriminatory/unequal enforcement • Can foster distrust and hostility between tenants
• May burden the judicial system
• Litigants may struggle to prove smoking occurred
• Eviction in limited circumstances*
Benefits
• Could be used as a last resort for repeat violations of no-smoking policy to protect the health of other tenants
• Could specify a certain number of warnings/violations before an eviction could proceed to allow for multiple chances to comply (see example, page 30) • Could allow for no lease renewal instead of immediate eviction as alternative Cautions
• Can impact health outcomes and worsen existing economic disparities, particularly for Black, Indigenous, or other people of color who are disproportionately renters (63% in CA, compared to 50% if homeowners)
• Can make it more difficult for individuals to obtain other housing • Could be used as pretext to remove tenant when a landlord or another resident wants to evict for a reason unrelated to smoking
• If can be applied to smoking by guests, can penalize tenants for others' actions • Knowing that eviction could be an outcome for a neighbor might discourage residents from reporting smoking policy violations
• Elderly residents could lose housing as a result of another family member's smoking * Eviction as a first response
Cautions
• In addition to the cautions listed above, using a "one strike" approach to eviction risks housing instability for tenants without giving them an opportunity to correct or, even better, the opportunity to pursue cessation with the CA Smokers' Helpline or through- local treatment programs
www.publichealthlawcenter.org/caltobacco Smoke-Free Multi-Unit Housing Enforcement Guide 6 PUBLIC HEALTH American
LAW CENTER Lung Association.
September 2022
at Mitchell Hamline School of Law
California
* Criminal enforcement
Cautions
• Criminal sanctions have been shown to have negative public health consequences and engender inequities.
• Often disproportionately targets individuals of color and can lead to collateral consequences including impact on immigration status, triggering a probation or parole violation, a summons leading to a criminal record or a warrant, or increased distrust of law enforcement. • If an enforcement action triggers more severe criminal sanctions, could potentially jeopardize housing, benefits, education, and employment.
This publication was prepared by the American Lung Association in California and the Public Health Law Center, a nonprofit organization that provides information and legal technical assistance on issues related to public health. The Center does not provide legal representation or advice. The information in this document should not be considered legal advice. This publication was made possible by funds received from Grant Number 19-10229 with the California Department of Public Health, California Tobacco Control Program, and the American Lung Association in California.
Endnotes
1 The Public Health Law Center recognizes that traditional and commercial tobacco are different in the ways they are planted, grown, harvested, and used. Traditional tobacco is and has been used in sacred ways by Indigenous communi- ties and tribes for centuries. Comparatively, commercial tobacco is manufactured with chemical additives for recre- ational use and profit, resulting in disease and death. For more information, visit: http://www.keepitsacred.itcmi.org.
When the word "tobacco" is used throughout this document, a commercial context is implied and intended. 2 Restorative justice focuses on repairing harm caused by crime and reducing future harm through crime prevention. It often involves a cooperative process where willing stakeholders meet to discuss the harm and how to bring about a resolution. See www.restorativejustice.org.
3 A public nuisance is a legal doctrine that applies when a person unreasonably interferes with a right that the general public shares in common. Local ordinances can declare violations of the smoke-free ordinance to be a public nuisance, opening up this enforcement option.
4 NOTE: Even in jurisdictions that have included eviction as an enforcement option, the majority have not evicted residents for violating smoke-free policies. Given the understandable and growing concern around eviction and housing stability, though, increasingly jurisdictions are pursuing smoke-free multi-unit housing policies that prohibit eviction as an enforcement option. The Partnership is available to provide legal technical assistance tailored to the preferences of local jurisdictions. www.publichealthlawcenter.org/caltobacco Smoke-Free Multi-Unit Housing Enforcement Guide 7