Carlsbad City Council
August 22, 2023

August 18, 2023
The Honorable Keith Blackburn
Mayor, City of Carlsbad
1200 Carlsbad Village Dr.

Carlsbad, CA 92008
• American
Cancer
Society
11]) Car:1cer
,,.,,,..Action
~ Network ··
Re: Item 9, Smoke - Free Multi-Family Housing policy,
August 22, 2023: Council meeting
Dear Mayor Blackburn and Members of the City Council,
The American Cancer Society Cancer Action Network's mission is to advocate for evidence­ based public policies to reduce the cancer burden for everyone and we are committed to advancing that mission in California. We applaud this council's interest in protecting your residents from the dangers of secondhand smoke and urge you to direct staff to develop a comprehensive smoke -free multi- family housing policy.

Everyone should have the opportunity to breathe clean air where they live, work and play.

Smoke-free laws reduce exposure to secondhand smoke, encourage and increase smoking cessation among people trying to quit, and reduce health care costs by improving health status.

ACS CAN encourages local jurisdictions to adopt a comprehensive policy that prohibits smoking in all multi-unit housing, including condominiums and townhomes (regardless of whether the unit is owned or rented) to assure comfortable enjoyment of one's home. We also encourage policies that prohibit smoking in all outdoor public places, such as dining areas, and outdoor events and workplaces; this type of policy ensures that employees do not have to choose between their job and their health.

Smoke-free multi-unit housing policies provide significant health protections for all; these are especially important for medically fragile people, such as cancer patients and vulnerable populations, such as young children and seniors. Cancer patients and survivors tell us that they get more nauseous when secondhand smoke creeps into their home from neighbors smoking in their units or on nearby patios and balconies. More than 80% of ALL California households completely prohibit smoking in their homes but cannot control this when they live in attached housing without 100% smoke-free policies. California state law allows local governments to adopt ordinances that prohibit smoking tobacco products within rental units; we urge you to take decisive action to provide these protections for your residents.

We encourage you to direct staff to return to the City Council with a draft ordinance imposing a complete smoking prohibition in multi-family housing units and outdoor common areas.

This should apply to housing projects with two or more units, rental or ownership interest and existing and new multifamily housing properties. (Option 2) This will provide the broadest meaningful protections.

Lynda Barbour, MPH, Sr. Director, Governm ent Relat ions, American Cancer Society Cancer Action Network www.FightCancer.org PO Box 910549 ; San Diego, CA 9219 1
W: 619-624 -1517 C: 619 -742-4861 lynda.barbour@cance r.org I want to respond to some of the staff's concerns about Option 2 and provide context and some recommendations.
1) The staff report says it is " ... difficult to inspect and enforce smoke-free air laws in private areas .... "
a) There are many jurisdictions that have successfully navigated enforcement concerns and have found that successful and equitable common- sense enforcement IS possible. b) In these jurisdictions, enforcement agencies aren't typically conducting inspections of units, but rely on information gathered from the complainant(s). They have also developed an effective and clear complaint process.
c) Our partners who have worked with these jurisdictions are happy to assist you in connecting with them to understand how it is working.
2) The staff report also says: "A significant public awareness and educational campaign would likely be recommended to help support the implementation of this approach. This would require staff resources and direct and indirect costs." a. A public awareness and education campaign is highly recommended to assure successful implementation.
b. Your community partners {who are members of San Diego County Tobacco Coalition) such as Vista Community Clinic, could provide a great deal of assistance in the public education campaigns.

In short, should the city move to adopt a smoke -free multi-fam ily housing policy forward, there is support available to ensure this kind of policy can be successfully implemented and equitably enforced. We encourage city staff to work with strong public health partners, such as the team at Vista Community Clinic, to develop a policy that protects the residents of this great city.

We urge you to direct staff to develop a comprehensive smoke-free multi- family housing policy. Carlsbad will lead the way as the first city in San Diego County to have a comprehensive smoke-free multi-family housing policy and will join almost 100 California cities that have adopted these strong, effective smoke-free polices.

Thank you for your consideration.

Sincerely,
:t::':~
Senior Government Relations Director,
Southern California American Cancer Society Cancer Action Network Lynda Barbour, MPH, Sr. Director, Government Relation s, American Cancer Society Cancer Action Network www.FightCancer .org PO Box 910549; San Diego, CA 92191
W: 619-624-1517 C: 619-742-4861 lynda.barbour@cancer .org

A PUBLIC HEALTH
~ LAW CENTER
at Mitchell Hamlin@ School of Law
/ f
American
Lung Association.

California
/ Joly2020
Law and Policy Partnership to End the Commercial Tobacco Epidemic

HOUSING MODEL ORDINANCE
.,., Introduction
This Smoke-free Multiunit Housing
Model Ordinance was prepared for
California cities and counties interested
in creating smoke-free multi unit
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
available data, as well as work done for the
California Tobacco Control Program. The model
offers cities and counties a variety of options to
tailor the ordinance to meet local needs. Readers
should consider all the evidence and decide for
themselves which approach is appropriate for
their multiunit housing needs.
www.publichealthlawcenter.org/caltobacco
.,., Customizing the Ordinance
Context boxes are included throughout the
ordinance to explain some key provisions. These
boxes are not meant to be included in any final
ordinance. A city or county wishing to adopt all
or part of this ordinance should keep this in mind
and remove the context boxes.
l!lt.. PUBLIC HEALTH
~ LAW CEN TER
■t Mltch•tl l-t•mlln e School of Uw
/ T American Lung Association .
/ Califom la
In some instances, blanks (such as ) 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 11 , )'1P ::i _ 1 " ). 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. """" 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 polic ies. 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 inform ation in this docume nt should not be considered legal advice. This mode l ordinance was made possib le by funds received from Grant Number 19-10229 with the California Department of Public Health, California Tobacco Control Program, and the Amer ican Lung Assoc iation in California.

July 2020
www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 2 July 2020

AN ORDINANCE OF THE PROHIBITING

SMOKING IN AND AROUND MULTIUNIT RESIDENCES AND

AMENDING THE MUNICIPAL CODE
The r·ty council/county board of supervisorc; of the rity/county of __ _ does ordain as follows:

SECTION I.

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 find ings 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. lf 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 11. of the Municipal/
County Code is hereby amended to read as follows:

Sec. 1. DEFINITIONS. For the purposes of this ::i rl :hapter 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.p ublichealthlawcenter .org/caltobacco Smoke-free Multiunit Housing Model Ordinance 3 '1Jt. PUBLIC HEALTH
~ LAW CENTER
•t Mllc;hel l H•mlin• Sdlo<>l of L,w
/ r American
/
Lung Association .

California
(B) "Common interest development" means:
(1) 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 lim ited to, an e-cigarette, e-cigar, e-pipe, vape pen, ore-hookah. (D) "Home owners' association" or "HOA" means an organizat ion or entity established for the purpose of managing or mainta ining 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) "Multi unit Residence" means property contain ing 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. ; 1 I • J I ne., ➔~ 1ces er n rnc. i.. Jt:: 1 "I
a hotel or 'llotel that meets the requirements of California Civil Code section 1940(b)(2)· (2) a mobile home park,
campground;
a marina or por~:
a single-family home, <=:Xcep~ i used as a liealth care fac. l1ty suo1ect to l1c.ensing requ rernents, and
July 2020
,#.I'.' __________________________________________ _
www.publichealthlawcenter.org/c altob acco Smoke - free Multiunit Housing Model Ordin ance 4 ~ PUBLIC HEALTH /
~ LAW CENTER
•t Mltchell H•mnn• Sehool of uiw /
f
American
Lung Assoc iation.

Califomla
a single~family home with an accessorv 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 pi..rsuant to those sections, except where the accessory dwelling unit or second unit 1s rented or is used as a health care facility subject to licensing requirements.

Note
July 2020
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 multi unit 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 . .,~.---------------------------------------.a
www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 5 ~ PUBLIC HEALTH
~ LAW CENTER
• l Mitc:h•II Hi!mlln• S.c;hool of Law / T
American
Lung Association .

Califomia
(G) "Nonsmoking Area" means any area in which smoking is prohibited by (1) this rt Ue/chapte r 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, ceremon ial, and sacred uses of tobacco practiced by some tribal communities, while prohibiting the use of commercial tobacco. If you would like more informat ion about this topic, please visit keepitsacred.org.
(J ) "Unit" means a personal dwell ing space, even one lacking cooking facil ities 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 motet; 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.

July 2020
,,.,,,,_'L-----------------~---------------============i www.p ublich eal t hlawcent er.org/ca ltob acco Smoke -fr ee Mult iunit Housing Model Ordinance 6 1JJa PUBLIC HEALTH / T American
~ LAW CENTER Lung Association.
,n Mlkh•l1 Hamlin• School of llW /
California
Sec. 2. SMOKING RESTRICTIONS
(A) Effective 90 days from ,,f, _ 1ve j c1te , smoking is prohibited anywhere on the premises of a multiunit residence, including units, common areas, and other outdoor areas. (8) No person with legal control over any multiunit residence shall permit smoking anywhere on the premises of the multi unit residence.

Note
July 2020
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(8) 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)
1 1.'..a ______________________________________ _
www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 1 ~ PUBLIC HEALTH / f American
~ ~,i~H~1~t{!~~ Lung Association .

California
July 20 20
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 limit ing outdoo r smoking to one DSA 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 "buffe r 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.S 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 tat1on to local ,ricorporabon of Sec. 6404 5(E)(E

11.:..--------------------------------------.i
www.publ ichealth lawce nter .org /caltoba cco Smok e-fre e Multiunit Housing Mod el Ordinance 8 l!Ja. PUBLIC HEALTH
~ LAW CENTER
at Mite hall Ha~I,..• School of l.aw
/ T American
/
Lung Association.

California
(C) No person with legal control over a common area in which smoking is prohibited by this arr1Lle. nc: p er 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
July 2020
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 - e feL i 1e 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 smokmg area" ' Sample Language
The bracketed language above and in the sample language below regarding DSAs 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
~ LAW CENTER
•t Mit(h oll HamliM School of Law
/ T American
/
Lung Association.

California
Sample Language (continued)
environment. As of _,. "- · 11,, ~~ t , tenant, members of tenant's household, and any guests under control of the tenant will not smoke anywhere:

July 2020
(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) Ontheoutdoorgroundsoftheproperty, tl1, · 1 .:1 J "'~ ,,· Jsr ~ 1g r _a including, but not limited to, entryways, playgrounds, pool areas, walking paths, or sitting areas.
"Tenant acknow ledges 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 ."
,,,,,,,.,. ________________________________________ iii www.publichealthlawcenter .org/caltobacco Smoke-free Multiunit Housing Model Ordinance 10 ~ PUBLIC HEALTH
~ LAW CENTER
•t Mltchell liamlln• Schoo l of Uw
/ f
American
Lung Association .

Califomia
(3) A clause expressly conveying third-party beneficiary status to all occupants of the multi unit residence as to the smoking provisions of the lease or other rental agreement.

Sample Language
July 2020
"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 [ ef+ectiv1:; 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, hapter 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.

Sec.

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. . 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 ffec v J;, , ..,- i '> , every landlord shall deliver to each unit a copy of this - "' ,_ 1 -Jpte, and a written notice clearly stating: .,,,,,. ... ______________________________________ _ www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 11 '111;;, PUBLIC HEALTH
t':;;;J LAWC EN TER
•t Mitchell Hamlin• 5<:hool of Law
/ T
American
Lung Association .

Califomia
(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 etfec, 111:.. date+ q, ,M " ; and
(2) Smoking in all common areas or outdoor areas e~ ~e.., f0 specif ,cally ctes,gnated ,, 1r,~ ~ _ 1 : s is a violation of r .it. ,..; _h.; p er as of "' fect,ve date 1- 90 days (B) As of 1- ;ec v J~ e , 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 i> 'ec.· rve late C lay., ; and
(2) Smoking is prohibited in all common areas and outdoor areas except for specifically OPS.Zr ,i>L sr,c , 1:; d Pa:. as of · e''" ,ive <.ate 90 da., (C) As of effect, ve 1"1 e + ,o dayc: , 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 adjoin ing the property grounds. In addition, as of Pt t \ P rL " '- 9r -1 ) , , the person or persons with legal contro l over the multiunit residence shall post and maintain signs in sufficient numbe rs 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 a -t ~1"' chc pter . "No Smoking" signs are not required inside or on doorways of units F- t.ept for hotels or moteh th~ t "et the c.r ,e a ted n :,. ,tor ~ -i ✓ Cc,d sectio 11940, subdivision (b)(2) ).

Note
July 2020
If your community excludes hotels and motels from the definition of multiunit residences (Section *1 Defin itions), 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. f ..,f
1tb m ot ne dependence SJC 11 a~ referrals to
qu,tli ,e or onlrne resources ]
www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordin ance 12 e PUBLIC HEALTH / T American
~~~H9i!~~'!~~ Lung Association.

Ca!ifom ia
Sec. . REQUIREMENTS FOR COMMON INTEREST DEVELOPMENTS.

The following requirements apply to common interest developments :
(A) On or before effective date+ ,C', ays , the HOA shall provide to all owners of units a copy of this Jrticle/chapte and written notice clearly stating that:
(1) Smoking is prohibited in units, including any associated private balcony, porch, deck, or patio, as of eftect,ve d,ne + 90 day::. ; and
(2) Smoking is prohibited in all common areas and outdoor areas except for spec1f1cally d,5ig 1ated sm.:>k ni!'> a eas, as of effect ve daLe -r ::IL da/.:, . (8) As of e fe-~ive date every seller of a unit shall provide prospective buyers or renters, a copy of this article1chapter and written notice clearly stating that:
(1) Smoking is prohibited in units, including any associated private balcony, porch, deck, or patio, as of " ef ecnve ,face -t 41) da:i,s ~; and
(2) Smoking is prohibited in all common areas and outdoor areas , except for specifically desig12te-:J smoking areas ~ as of _ effeci, e -:I te ...- ~ J :la,:, . (C) As of " effective dat~ + 90 davs ], 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. ThP HOA s~al a S<' drstr ,, 1 e "'SvL r~e'- ~r \ 1 Jad to, r ·ee by ~h .. r L t11 ;;our /:
o ;:issrst Ml ,1 nicotine dependence, such as referrals to quitline or on line resources.

July 2020
,,,,_,_ ______________________________________ _
www.publichealthlawcenter.org/caltobacco Smoke - free Multiunit Housing Model Ordinance 13 ~ PUBLIC HEALTH
~ LAWCENTER
at Ml\ch•N H•mllfl♦ School of uiw
/ !
American
Lung Association .
/ California
Sec. . NUISANCE; OTHER
(A) The provisions of this a e/ ~hdJ er shall be liberally construed to protect the public health to the maximum effect possible. Notwithstanding (1) any provision of this If', l c'f ~ or of this code, (2) any failure by any person to restrict smoking under this dr • "t 'i- h..ir:.,t» , 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 _ rticle/chapte1 is hereby declared to be a public nuisance.

Note
By expressly declaring that a violation of this ordinance is a nuisance, this provision July 2020
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 " , 1 , property is a nuisance.
,,,,. ________________________________________ liill
www.publichealthlawcenter .org/cattobacco Smoke-free Multiunit Housing Model Ordinance 14 IJlt. PUBLIC HEALTH
~ LAW CENTER
el Mil'c:hell Harnllf"I• School of Uw
Note
/ T American
/
/ Lung Association .

California July 2020
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 explicit ly 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. __ (•o) . PENALTIES AND ENFORCEMENT.

Note
Enforcement of smoke-free multi unit 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.publichealth lawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 15 #!It;. PUBLIC HEALTH
~ LAW CENTER
at Mitc:heff H•mlin• School of Law /
Note (continued)
r
American
Lung Association .

Californ ia
risks should be carefully weighed by the municipality as policymakers consider whether to include criminal and monetary penalties and how to structure those penalties.

July 2020
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. Whi le 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 a 1 ·c e rf-, Jp p 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 arlic'e :. dpte1 may initiate enforcement of this a le _ apter by registering a complaint with the cit ~.. t, r ,c.r ag , or his or her designee. (C) Enforcement of this chapter shall be the responsibi lity of r dPpar' ne'l 'J' housing n~pen 1s/1 L b 1 ., t 1 /c 'hPt . In addition, any code enforcement official may enforce this chapter.
(D) Landlords or HOAs found to have violated this - ,rt c e/cha..,~e are subject to a civil fine not less than "', i.. n l e h, Ju a :, ... s:) and not exceeding 11e ti L ~ -=in 1 ..1~11a ~ :pt,CO 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 IJlt. PUBLIC HEALTH /
~ LAW CENTER
et Mltc-h•II Hamlrn• School of law /
f
American
Lung Association .

California
(E) No person shall intimidate, harass, or otherwise retaliate against any person who seeks comp liance with this art " <>/chapte . Any person in violation of this subsection is subject to a civil fine not less than , ,v v 1 fl c:J !i d0 lars $[01 and not exceeding o 1e 101 san, ,JI a" ti OOv per violatio n.

Note
July 2020
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 civi l fine." (F) In addition to other remedies provided by this - article, ',:hapte _ or otherwise available at law or in equity, any violation of this arr le/c.hapte may be remedied by a civil action brought by the r ci,11 1t+orr ey/c:oum cc1_1se· ,, 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 with in 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.
,,,,, _______________________________________ !!m!l!!!l!I www.publichealth lawcent er.org/ calto bacco Smoke-free Multiunit Housing Model Ordinance 17 l!Jlta PUBLIC HEALT H
~ LAW CEN TER
•l Mltch•ll H~m~n• Schoof or Uw
/ T
American
/
Lung Association .

California
(G) Any person may bring a civil action to enforce this IP 'chapt"' to prevent future violations and may sue to recover actual or statutory damages, including court costs, and attorney fees.

SECTION Ill. CONSTRUCTION, SEVERABILITY.

It is the intent of the r , co ~~ I b lj Jc/ s ,..e ,, , J of the L 0 'v 'r... it~ 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 11 1 '- ._ ricd/ooard of supe v1s0 c; of the c 1ty' JL r of 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.

APP ENDIX 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 Organi zation (WHO) estimates that tobacco kills up to half of its users, amounting to more than 8 million deaths each year worldwide, 1 including nearly half a million people who die prematurely from smoking in the United States alone;2 • 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;2 • 5.6 million of today's Americans who are younger than 18 are projected to die prematurely from a smoking-related illness;2 and
• The estimated economic damage attributable to smoking and exposure to secondhand smoke in the United States is nearly $300 billion annually; and2 WHEREAS, tobacco use is the number one cause of preventable death in California 2 and continues to be an urgent public health issue, as evidenced by the following:

July 2020
www.publichealthlawcenter.o rg/caltobacco Smoke-free Multiunit Housing Model Ordinance 18 l!Jt. PUBLIC HEALTH
~ LAW CENTER
•t Mltch•II H•mlln• $c~ Qf L.tw / T
American
Lung Association .
/ California
• An estimated 40,000 California adults die from smoki ng annually; 2 • 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; 4 and
insert local data if available
WHEREAS, significant disparities in tobacco use exist in California which create barriers to health equity, 5 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; 6
• Californians with the highest levels of educational attainment and annual household income report the lowest smoking rates;6
• 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 multi unit housing report smoking cigarettes at a higher rate (13.1%) than those who live in a house;6
• 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%); 6 and insert local data if available l
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;7
• 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;8·9 July 2020
,1..----------------------------------------,;
www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 19 • 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;10
• 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;11 • The American Heart Association and the American Lung Association recommend all adults and children be protected from secondhand smoke in multiunit housing;12•13 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;2
• 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;2
• 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%; 2•14 • 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,10•16•17 such as formaldehyde, acetaldehyde, lead, nickel, chromium, arsenic, and toluene; 17•18 • 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;11-19•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 July 2020
, ,,,_ ________________________________________ _
www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 20 ~ PUBLIC HEALTH
~ LAWCENTER
~t Mitchell t-lunlin• School o, Law
/ T American
/
Lung Association .

California
• 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;17•19•28,29
• Indoor air experts and health authorities, including the U.S. Surgeon General, American Society of Heating Refrigerating and Air Condit ioni ng Engineers, and the State of California Tobacco Education and Research Oversight Committee (TEROC), all support inclusion of elect ronic smoking devices in regulations of smoking and other tobacco product use;11•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 Californ ia 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 multi unit housing can and does transfer between units, seeping into smoke-free areas from areas where smoking occurs;35 • Residents of multi unit 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 multi unit 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
July 2020
.,,,,.,_ ________________________________________ In
www.publichealthlawcenter .org/caltobacco Smoke-free Multiunit Housing Model Ordinance 21 ~ PUBLIC HEALTH / r American
~ LAW CENTER ' Lung Association.
al Mitc:h•II H•mlin• Schoo l or Uw /
1 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 multi unit 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 multi unit 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;40A 1 • Studies consistently find that thirdhand smoke remains months after nonsmokers have moved into units where smokers previously lived,42 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 DNA 45.46 and is carcinogenic at exposure levels relevant to residents of multi unit housing;46 WHEREAS, smoking is a leading cause of fire-related injury and death,47 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 July 2020
www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 22 ~ PUBLIC HEALTH / f American
~ LAW CENTER / Lung Association .
•t MltcMII Homllno School of u w
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 Californ ians (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 separat ing smokers from nonsmokers, cleaning the air, and ventilating buildings cannot completely prevent secondhand smoke exposure;7
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 multi unit 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 multi unit 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 multi unit housing (25.2%) are under the age of 18;39 July 2020
www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 23 l!Ja. PUBLIC HEALTH
~ LAW CENTER
•t Mltch•II Ha,NiM School of Law
/ T American
/
Lung Association.

California
• 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 major ity 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 1f available
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 authorit ies 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 July 2020
II'..----------------------------------------
www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 24 l!IJ.. PUBLIC HEALTH
~ LAW CENTER
a t Mitch.ti H•mlln• Seho<il ot Lew
/ T American
/
Lung Association .

Califom ia
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 ordin ances;6
WHEREAS, there is no Constitutiona l right to smoke;66
WHEREAS, California law declares that anything whi ch is injuriou s 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 uty council/coun v 1:10;:1 c: I)' supervisors in enacting this ordinance, to provide for the public health, safety, and welfare by discouraging the inherently dangerous behavior of smoking around nontoba cco 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
World Health Organization. WHO Report on the Global Tobacco Epidemic, 2019: Offer Help to Quit Tobacco Use. 2019.

Availab le at: https://apps.w ho.int/iris/han dle/10665/326043 . 2 U.S. Departmen t 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.n lm.nih.gov/books/NBK 179276/pdf/ Bookshe1f_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.20 16.6530 . 5 U.S. Nationa l Cancer Institute. A Socioecological Approach to Addressing Tobacco-Related Health Disparities. National Cancer Institute Tobacco Control Monograph 22. NIH Publication No. 17-CA-803SA. Bethesda, MD: U.S. Department of Health and Human Services, National Institutes of Health, National Cancer Institute . 2017. Availab le at: https://can ­ cercontro l.cancer.gov/b rp/tcrb/monographs/22/ index.html. 6 California Tobacco Control Program, California Departmen t of Public Health. California Tobacco Facts and Figures 2019.

Available at: https://www.cdph.ca.gov/Programs/CCDPHP/DCD IC/CTCB/CDPH%20Document%20 Library/Re ­ searchandEvaluation/FactsandF igures/CATobacco FactsandFigures2019.pdf. Accessed June 2, 2020.

July 2020
www.publichealthlawcenter .org/caltobacco Smoke-free Multiunit Housing Model Ordinance 25 1!11;;. PUBLIC HEALTH
~ LAW CENTER
■t Mltch-'I H•mllne School of t..w
/
/ T
American
Lung Association .

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, Nationa l Center for Chronic Disease Prevention and Health Promot ion, 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. Availab le at: https//ww2.arb.ca .gov/our-work/programs/environmenta l-tobacco-smoke -identified -tox ­ ic-air-con taminant. Accessed June 2, 2020.
9 California Ident ifies 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 H ealth Hazard Assessment, Californ ia Environmental Protection Agency. The Proposition 65 list. https://oe hha.ca.gov/proposition-65/propos it ion-65- list. Accessed June 19, 2020. 11 American Society of Heating Refrigerat ing and Air Conditioning Engineers (ASH RAE). 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%20 library/technica l%20resou rces/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. Wash ington, DC: American Heart Association . 2013. Available at: www.heart.org/ idc/g roups/ahaecc -public/@wcm/@adv/documents/download­ able/ucm_ 469126 .pdf.
13 Ame rican Lung Association. Public Policy Position - Healthy Air. Chicago, IL: American Lung Association. 2019. Available at:
https ://www.lung.org/pol icy-advocacy/pub lic-pol icy-agenda/public-policy -position -healthy-air. Accessed June 2, 2020. 14 DiGiacomo SI, Jazayeri MA, Barua RS, Ambrose JA. Environmenta l Tobacco Smoke and Cardiovascular Disease. Int J Environ Res Public Health. 2018;16(1):96. doi: 10.3390/ ijerph16010096. 15 Centers for Disease Contro l and Prevention (CDC) . CDC Vital Signs - Secondhand Smoke: An Unequal Danger. February 2015. Availab le at: www.cdc.gov/vitalsigns/ pdf/2015 -02-vitalsigns.pdf . Accessed June 3, 2020. 16 California Tobacco Control Program, California Departmen t of Public Health. State Health Officer's Report on £-Cigarettes:

A Community Health Threat. Sacramento, CA. 2015. Available at: www.cdp h.ca.gov/ Programs/CCDPHP/DCD IC/CTCB/ CDPH%20Doc ument%20Lib rary/Pol icy/E lectronicSmo kingDev ices/StateHeal thEcigReport.pdf. 17 National Academies of Sciences, Engineering, and Medicine. Public Health Consequences of £-Cigarettes. 2018. Washing­ ton, DC: The Nationa l Academies Press. Availab le at: https://www.nap .edu/catalog/24952/pu blic-hea lth-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 Heal th and Human Services, Centers for Disease Contro l and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health. 2016. Available at: https://www-ncbi-nlm-n ih-gov.ezp1.lib.umn.edu/books/N BK538680/pdf/Bookshelf NBK538680 .pdf. 20 Romberg AR, Miller Lo EJ, Cuccia AF, et al. Patterns of nicot ine concentrat ions 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 Toxico/. 2020 Apr 16. Doi: 10.1007/sl3181-020-00772-w.

July 2020
www.publichealth law cente r.org/caltoba cco Smoke-free Mu ltiu nit Housing M odel Ord inance 26 IJlt. PUBLIC HEALTH
~ LAW CENTER
at. MJtch•II H•mlln• school or Yw
/ r
American
Lung Association.

California
22 Staudt MR, Sal it 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 toe-cigarette emissions: Immed iate 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 ot Pulmonary Toxic ity 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.

EPl-17-0358.
25 Visser WF, Klerx W N, 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/ ijerph 16091525. 26 Bayly J E, Bernat D, Porter L. Choi K. Secondhand Exposure to Aeroso ls From Electronic Nicotine Delivery Systems and Asthma Exacerbations Among Youth W ith Asthma. Chest. 2019;155(7)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 Associat ion W ith 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/mmw r.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: 70.1016/j.a ddbeh.2020 .106459. 30 Amer ican Society of Heating Refrigerat ing and Air Conditioning Engineers (ASH RAE). ASHRAE Position Document on Environmental Tobacco Smoke. Atlanta, GA: ASH RAE. 2019. Available at: https://www. ashrae.org/file%20l ibrary/about/ position%20documents/ashrae pd_environmental_ tobacco smoke 2019.pdf . 31 State of California Tobacco Education and Research Oversight Comm ittee (TEROC). Position on Electronic Smoking Devices (AKA £-cigarettes). 2015. Available at: www.cdph.ca.gov/Prog rams/CCD PHP/DCD IC/CTCB/CDPH%20Docu­ ment%20Libra ry/TER0C/ lnfoGraphicReports Letters/T EROCECigarettePositionStatement 122215.pdt. 32 Californ ia Environmental Protection Agency. Evidence on the Carcinogenicity of Cannabis Smoke. Sacramento, CA: Cali­ forn ia Environmenta l Protect ion Agency, Office ot Environmental Health Hazard Assessmen t, Reproductive and Cancer Hazard Branch. 2009 . Available at: https://oe hha.ca.gov/media/downloads/proposit ion-65/chem icals/t inalmjsmoke­ hid.pdf.
33 Herrmann, ES, Cone, EJ, Mitche ll, JM, et al. Non-Smoker Exposure to Secondhand Cannabis Smoke II: Effect of Room Ventilation on the Physiological, Subjective, and Behavioral/Cogni tive Effects. Drug Alcohol Depend. 2015;151:194-202 . doi: 10.1016/j.drugalcdep.2015 .03.019.
34 Holitzk i H, Dowsett LE, Spackman E, Noseworthy T, Clement F. Health effects of exposure to second- and thi rd-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 multiun it housing. Nico­ tine Tab Res. 2010;12:1133-1141. doi:10.1093/n tr/ntq 162. 36 Snyder K, Vick JH, King BA. Smoke-free multiun it housing: a review of the scientif ic literature. Tob Control. 2016;25:9-20. doi: 10.1136/tobaccocontro l-2 014-051849.
37 Wilson KM, Klein JD, Blumk in 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.

July 2020
w ww.pub lichea lthla w center.org/caltobacco Smoke-free Multiun it H ousing Mode l Ordinance 27 ~ PUBLIC HEALTH
~ LAW CENTER
a, Mltch•H ~ •mUn• School of Law
T
American
Lung Association.

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. Availab le at: http://hea lthpolicy .ucla.edu/pub lications/Documents/PDF/2020/Hea1th -at-Risk-pol icybrief-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, Mehrot ra N, Paintal HS. Electronic cigarettes and thi rdhand 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 pollut ion and exposu re. Tob Control. 2011;20(1):e l . doi:10.1136/tc.2010.037382. 43 Matt GE, Quintana PJE, Hoh E, et al. Persistent Tobacco Smoke Residue in Multiunit Housing: l egacy of Permissive Indoor Smoking Policies and Challenges in the Implementat ion of Smoking Bans. Prev Med Rep. 2020;18 :101088 . doi:

10.1016/j .pmedr.2020.101088.
44 Sleiman M, Gunde l LA, Pankow JF, Jacob P, Singer BC, Destaillats H. Formation of carcinogens indoors by surface-me ­ diated reactions of nicot ine with nitrous acid, leading to potentia l thi rdhand smoke hazards. Proc Natl Acad Sci US 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):38 1-

91. doi:10.1093/mutage/get013 .
46 Hang B, Wang P, Zhao Y, et al. Thirdhand Smoke: Genotoxic ity and Carcinogenic Potent ial. Chronic Dis Transl Med. 2019;6(1) :27-34. doi : 10.1016/j.cdtm.20 19.08.002.
47 U.S. Fire Admin istration. Fire in the United States 2008-2017 . Emmitsbu rg, MD: Depa rtment of Homeland Security, Fed­ eral Emergency Management Agency, U.S. Fire Administrat ion. 2019. Ava ilable at: https://www .usfa.fema.gov/down­ loads/pdf/publicatio11s/fius20th.pdf.
48 National Fire Protection Assoc iation. Home Fires Started by Smoking. Quincy, MA: Nat ional Fire Protection Association . 2019. Avai lable at: https;//www.nfpa.org/-/m edia/ Files/News-and-Research/Fire-stat istics-and-repo rts/US- Fire­ Problem/Fire -causes/ossmoking .ashx.
49 Chambe rs C, Sung H, Max W. Home Exposure to Secondhand Smoke among People Living in Mult iunit Housing and Single Family Hous ing: 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, Qu inn D, Phillips T, Delucca M. Smoke-free multiunit housing policies show promise in reduc­ ing secondhan d smoke exposure among racial ly and ethnica lly diverse, low- income seniors. J lmmigr Minor Health. 2017;19(6): 1281-1289. doi.org/10.1007/sl0903-016-0430-2. 51 Gentzke AS, Hyland A, Kiviniemi M, Travers M J. Attitudes and Experiences w ith Secondhand Smoke and Smoke-Free Policies Among Subsidised and Market-Rate Mult iunit 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 Exposu re, 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.

July 2020
www.publichealthlawcente r.org/caltobacco Smoke - free Multiunit Housing Model Ordinance 28 ~ PUBLIC HEALTH
~ LAWCENTER
at Mltch•II Hamlin• School of Law
/ T
American
Lung Association .

California
54 Holmes LM, Llamas JD, Smith D, Ling PM. Drifting Tobacco Smoke Exposure Among Young Adults in Mult iunit 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-Garbanat i L, Unger JB. Second and Thirdhand Smoke Exposure, Atti­ tudes and Protective Practices: Results from a Survey of Hispanic Residents in Multi unit Housing. J Immigrant Minority Health. 2017;19(5):1148-1155. doi.org/10.1007/sl0903-016-0540-x. 56 Wi lson KM, Torok MR, McM illen RC, et al. Tobacco-Smoke Incursions and Satisfaction Among Residents W ith 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 towa rd Smoke-Free Public Housing among US Adults, 2016. Am J Prev Med. 2018 Jan;54(1):113-118. doi: 10.1016/j.amepre.2 017.08.026. 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, Woo dward A. Instituting Smoke-Free Public Housing : An Economic Analysis. Cityscape. 2017;19(3):435-448 . Available at: https://www. huduse r.gov/portal/period ica1s/cityscpe/vo ll 9num3/ch24.pdf. 60 King BA, Peck RM, Babb SD. National and State Cost Savings Associated with Prohib it ing Smoking in Subsidized and Public Housing in t he United States. Prev Chronic Dis. 2014;11:E171. doi: 10.5888/ pcdll.140222. 61 Ong M K, Diamant AL, Zhou Q, Park HY, Kaplan RM . Estimates of smoking-related proper ty costs in California mult iunit 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. federalregiste r.gov/docu­ ments/2016/12/05 / 2016-28986/i nst ituting-smoke-fr ee-public-housing. Accessed June 4, 2020. 63 Vijayaraghavan M, Schroeder SA, Kushel M . The effectiveness of tobacco control polic ies on vulnerable populations in the USA: a review. Postgrad. Med J. 2016;92:670 - 676. doi.org/10 .1136/postgra dmed j-2014-133193. 64 Hafez AY, Gonzalez M , Kulik M C, Vijayaraghavan M , Glantz SA. Uneven Access to Smoke-Free Laws and Polic ies and Its Effect on Healt h Equity in the United States: 2000-20 19. Am J Public Health. 2019;109(11):1568-1575. doi: 10.2105/ AJPH.20 19.30528 9.
65 Cal. Civ. Code§ 1947.5.
66 Public Health Law Center. There Is No Constitutional Right lo Smoke or Toke. Saint Paul, MN: Public Health Law Center. 2019. Avai lable at: https://publichealth lawcenter.org/si tes/default/files/resou rces/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.

July 2020
www.p ublic healt hlawcenter.org / ca ltoba cco Smoke -free Mult iunit Housi ng Model Ordi nance 29

A PUBLIC HEALTH
~ LAW CENTER
at Mitch ell Hamlln e School of Law
/ f
American
Lung Association .

California
/ Sep<emb e, 2022
Law and Policy Partnership to End the Commercial Tobacco Epidemic

SMOKE-FREE MULTI-UNIT

HO-USING ENFORCEMENT GUIDE
,,,, 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
more detailed language and explanation of various
enforcement choices. For further information on
topics relevant to multi-unit housing ordinances,
such as content on cannabis regulat ion or tenant
resources, see our California resource page.

Not all jurisdictions have the same resources or
community preferences, so we have included
a range of enforcement options and provided
context for the benefits and cautions of each
from an equity perspective. We have provided
recommendations as to which enforcement
options are considered best practices and
more equitable (coded green~ ), which
options might require some more caution
or consideration ( ), and the
options that the Partnership recommends
against (coded red 0 ). Some of these options

THIS IS A SMOKE

FREE BUILDING
have been used across many jurisdictions, while
others are emerging strategies.

Having access to safe, affordable, stable housing
is a key to both physical and mental health
outcomes. But allowing smoking in shared housing
makes safe and stable housing difficult to achieve
health 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
, _,_ ________________________________________ _
www.publichealthlawcenter.org/caltobacco
~ PUBLIC HEALTH
~ LAW CENTER
•l Mltc:hell Hamllna, School ot Law
/ T
American
Lung Association .

California
NO

SMOKING

WITIIIN

IIOCICREEI

HOA PROPERTY
September 2022
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 1 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 /
~ LAWCENTER
•t Milch •U Homffn• Schoo l ol Law /
T
American
Lung Association.

Califomla
September 2022
0 Most preferred/most equitab le
0 Not recommended by the Partnership
_,_, Enforcement Options
0 Grad uated 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
0 Civil fines against landlords/HOAs
Benefits
• Civil fines for land lords 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 Mu lti-Unit Housing Enforcement Guide 3 ~ PUBLIC HEALTH / f American
~ ~,i~ H9,~~:E~~ Lung Association.

Califomla
September 2022
• Can allow tenants to initiate enforcement by registering a complaint with a designated local government employee
Caut ions
• Landlords or HOAs may be motivated to take stronger steps against tenan ts than they otherwise would, potentially including actions like eviction 9 Community service
Benefits
• As an alternative to civil fines, community service can limit the f inancial 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 indiv iduals, 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 9 Restorative justice 2
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
9 Nuisance 3
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/ca ltobacco Smoke- Free Multi-Un it H ousing Enforcement Guide 4 ~ PUBLIC HEALTH
~ LAW CENTER
at Mitchell Hamlln• School of law
/ T
American
Lung Association .

California
September 2022
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 ti 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) 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
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 s T
American
Lung Association.

California
September 2022
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
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 0 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
,1#,:,,C:.==========--========:::==:=:==:::::==::::::==============================:::i www.publichealthlawcenter.org/caltobacco Smoke-Free Multi-Unit Housing Enforcement Guide 6 IJlt. PUBLIC HEALTH
~ LAWCENTER
.at Mltc:he ll l-lamlln• School of Ulw
/ / T
American
Lung Association .

California
September 2022
0 Criminal enforcement
Cautions
• C rimina l sanctions have been shown to have negat ive public health consequences and engender inequ ities.
• O ften disproportionately targets individuals of color and can lead to collatera l consequences includi ng impact on immigration status , t riggering a probation or paro le violation, a summons leading to a criminal record or a warrant, or increased distrust of law enforcement. • If an enfo rcement action triggers more severe criminal sanct ions, cou ld potentia lly jeopardize housing, benefits, education, and employment.

This publica t ion was prepared by the American Lung Assoc iatio n in Californ ia and the Public Heal th Law Center, a nonp rofit organizat ion that provides informa t ion and legal tech nical assistance on issues related to public health. The Center does not prov ide legal repre sentation or advice. The information in this document should not be cons idered legal advice. This publication was made poss ible by funds received from Grant Numbe r 19-10229 w it h the California Department of Public Health, California Tobacco Contro l Program, and the America n Lung Associat ion in Californ ia.

End notes
The Public Health Law Center recognizes that traditiona l and comme rcial 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 commun i­ ties and tribes for centu ries. Comparat ively, commercial tobacco is manufac tured with chemical additives for recre­ ational use and profit, resulting in disease and death. For more informa t ion, visit: http://www .keepitsacre d.itcm i.org.

When the word "tobacco " is used throughout this documen t, a commercia l context is implied and intended. 2 Restorative justice focuses on repairing harm caused by crime and reducing future harm through crime prevent ion. It often involves a cooperative process where willing stakeholders meet to discuss the harm and how to bring about a resolution . See www.resto rativejustice.org .
3 A publi c nuisance is a legal doctrin e 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 publ ic nuisance, opening up t his enforcement option .
4 NOTE: Even in jurisdictions that have included eviction as an enforcement option, the majority have not evicted residents for violat ing smoke-free policies. Given t he understandable and growing concern around eviction and housing stability, though, increas ingly jurisdict ions are pursuing smoke-free mult i-uni t housing polic ies that prohibit eviction as an enforcemen t option. The Partnership is available to provide legal technical assistance tailored to the preferences of local jurisdictions. www.publichealthla w center .org/caltobacc o Sm oke -Free Mult i-Unit Hous ing Enfo rcement Guide 7 Enforcement of smoke-free multi-family housing policies should balance the goal of protecting residents from secondhand smoke exposure with the goal of ensuring housing stability for all residents.

ENFORCEMENT AGENCY
• City Manager
• Code Enforcement
- - -
VIOLA Tl ON DEFINITION
• Resident., guest of resident., service provider or other visitor smoking or vaping in a prohibited area • Smoking-related damage to inside of unit
• Evidence of smoking inside of unit such as smells, ashes or other debris, lighted or burning product • No posted signage throughout property
• Manager/Landlord/HOA not taking action against violations Who to be cited:
• Resident in violation

COMPLAINT WORKFLOW I
Step 1: Individual issuing complain t fills out web-based form on City website, City app if available or call to Code Enforcement Information to include:
o Address of violation
o Witness accounts
o Photos, if possible
o Date and time of violation
o Location of violation (i.e. smoke drifting from downstairs unit through bathroom vent, neighbor smoking on outdoor patio and drifting through sliding glass door to family room, etc.).

Step 2: Code Enforcement records complaint to central database and collects any supporting evidence. Issues Notice of Concern to resident in violation and property manager/ owner of residence.

Step 3: Code Enforcement receives second complaint from different complainant within 3-month period from first complaint Code Enforcement opens a case, records complaint to central database and collects any supporting evidence.

Step 4: Code Enforcement inspects complaints to establish presence of violation. If violation is present, issues second Notice of Concern to resident in violation and property manager/ owner of residence. Confinns compliance within 30 business days from second complaint 1bis can be follow-up phone calls and/ or in-person inspection.

Step 5: If compliance not confirmed, Code Enforcement follows appropriate Violation Schedule outlined below.

Step 6: Code Enforcement follows up as needed with individual issuing complaint

COMPLAINT PROCESSING PROCEDURE
First complaint received: Code Enforcement issues Notice of Concern to resident in viohtion and property manager/ owner of property of residence with details of complaint received. o Notice of Concern is a courtesy and not a formal action. It includes information about the ordinance and provides the opportunity for resident to remedy the situation before formal action is taken.
o Cessation resources included with Notice .

Second complaint received: If a complaint is received within a 3-month period from a different source as the first complaint received, Code Enforcement issues second Notice of Concern to resident in violation and property manager/ owner of property of residence with details of violation. o Second Notice of Concern is a courtesy and not a formal action. It includes information about the ordinance and provides the opportunity for resident to remedy the situation before formal action is taken.
o Cessation resources included with Notice.

Third complaint received: If a complain t is received within a 6-month period from the second Notice of Concern, Code Enforce ment issues Notice of Citation to resident in viohtion with details of viohtion. o Notice of Citation is a formal complaint recorded as a viohtion for the resident o An administrative fine not exceeding $100 for the third complaint within a 6-month period from the second Notice of Concern.
o The city may, at its discretion, issue community service as an alternative to a fine. o Cessation resources included with Notice.
o Code Enforcement follows-up on compliance confirmation within 30-business days. o If compliance is confinned, no action taken and case is closed. o If compliance not confinned, a Notice of Citation is issued to resident in viohtion and property manager/ owner of property of residence with details of violation. ■ Notice of Citation is an administrative citation recorded as a viohtion for the resident with an administrative fine not exceeding $200.
■ The city may, at its discretion, issue community service as an alternative to a fine. ■ Cessation resources included with Notice.
o Code Enforcement follows-up on compliance confinnation within 30-business days. o If compliance is confinned, no action taken and case is closed. o I f compliance not confinned, a Notice of Citation is issued to resident in violation and property manager/ owner of property of residence with details of violation. ■ Notice of Citation is an administrative citation recorded as a viohtion for the resident with an administrative fine not exceeding $500.
■ The city may, at its discretion, issue community service as an alternative to a fine. ■ Cessation resources included with Notice .
■ Administrative fees can accumulate at a rate of $500 per day, per citation, if the violation is not corrected.
- i
I
I
Any person receiving an administrative citation for violation of this article shall have the right to appeal pursuant to City's appeal process. In addition, the City Attorney may institut e a civil action to ensure compliance with this Ordinance, including an action for injunctive relief and/ or to recover damages and attorney fees and costs incurred as a result of any violation .

Any person may bring a civil action to enforce this Ordinance to prevent future violations and may sue to recover actual or statutory damages, including court costs, and attorney's fees. However, this Ordinance does not create a private right of action for a tenant against a landlord for any damag es the tenant may suffer due to another tenant's breach of any smoking provision in a lease or other rental a reement, so lon as the landlord has full com lied with the terms of this Ordinanc e.

Costs associated with investigating complaints can vary based on several factors such as timeliness of response of violator, correction of violation, Code Enforcement Officer salary and/ or hourly rate, etc. Based on other California cities with city-wide smoke-free multi-family policies, the enforcing agency may field 1-10 per month in the initial 6-12 month period after the policy goes into effect However, with proper education and outreach prior to the policy going into effect, and consistent education when complaints are received, that number decreases over tune .
• Staff resources (number of staff, hourly wage and/ or salary, etc.) • Software for complaint tracking
• Resident/Manager appeal process
SMOKE-FREE MUL Tl-UNIT HOUSING POLICY

IMPLEMENTATION CHECKLIST
D Determine who will be carrying out implementation plan D Identify partner agencies that can help with implementation - consider one-time and ongoing budget needs
□ Staffing
D Overhead
D Printing
□ Advertising
□ Signage
Identify Stakeholders
• Chamber of Commerce
• Housing authorities/commissions/agencies with
properties in the jurisdiction
• Rental or Property Management Associations
• Property Management Companies
• Law Enforcement
• Residents
Identify Outreach Efforts
• In-person visits to properties
• Host public education workshops
• Mailings
Identify Media Needs
• Press releases in local publications
• Radio, lV, digital ads
• Website
• Mailers
• Billboards
D Draft timeline
□ Draft budget
Develop Message
• Municipal Code
• Effective date
• Enforcement and compliance methods
o How to make a complaint
o How violations are handled
• Tobacco cessation support
Talking Points
Identify Needed Collateral
• Flyers
• Banners
• Letters
• Content for City website
• Educational Presentation deck
• FAQ
Property Owners , Managers and Staff Residents
• Sample notification letters to be sent to residents • Information on how to file a compliant • Encourage properties to host educational workshops • Tobacco cessation resources with residents to ensure understanding of new policy,
including
• Sample signage and recommendations on where to print
• Sample lease addendums and/or new lease agreements
or CCRs
• Sample warning letters
0-2022 -5 ORDINANCE NO. _ _____ _
AN ORDINANCE ADDING CHAPTER 6.74 TO TITLE 6 OF THE ALAMEDA COUNTY ORDINANCE CODE TO PROHIBIT SMOKING IN AND AROUND MUL Tl-UNIT RESIDENCES

WITHIN THE URBAN GROWTH BOUNDARY IN UNINCORPORATED AREAS OF THE

COUNTY OF ALAMEDA

IT IS HEREBY ORDAINED BY THE BOARD OF SUPERVISORS OF THE COUNTY OF ALAMEDA THAT THE ALAMEDA COUNTY ORDINANCE CODE IS AMENDED AS FOLLOWS:

SECTION I
Chapter 6. 7 4 is added to Title 6 of the General Code of the County of Alameda, to read as follows:

Chapter 6.74- Prohibition on Smoking In and Around Multi-Unit Residences Section 6.74.005. Findings and Declaration
The Board of Supervisors of the County of Alameda finds and declares that:

A. Secondhand smoke has repeatedly been identified as a health hazard.

1. The U.S. Surgeon General concluded there is no risk-free level of exposure to secondhand smoke .

2. The California Air Resources Board categorized secondhand smoke as a toxic air contaminant, along with most toxic automotive and industrial air pollutants, for which there is no safe level of exposure.

3. The California Environmental Protection Agency (EPA) included secondhand smoke on the Proposition 65 list of chemicals known to the State of California to cause cancer, birth defects, and other reproductive harm.

4. The American Society of Heating, ,Refrigerating, and Air Conditioning Engineers (ASHRAE) recommends that multiunit housing be free from secondhand smoke, cannabis smoke, and aerosol from electronic smoking devices.

5. The American Heart Association has recommended all adults and children be protected from smoking in multiunit housing.

B. Exposure to secondhand smoke causes death and disease.

1. Since 1964, approximately 2.5 million nonsmokers have died from health problems caused by exposure to secondhand smoke.

2. 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.

3. 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%.
1 SMOKE-FREE HOUSING ORDINANCE
1/11/22

4. Secondhand smoke kills more than 400 infants every year.

C. Electronic smoking device aerosol may be considered a health hazard.

1. Research has found at least ten chemicals known to the State of California to cause cancer, birth defects, or other reproductive harm, such as formaldehyde, acetaldehyde, lead, nickel, and toluene.

2. 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.

3. 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 thus likely poses a risk to human health.

4. 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.

5. A number of health authorities, including the U.S. surgeon general, ASHRAE, and State of California's Tobacco Education and Research Oversight Committee (TEROC) all support inclusion of electronic smoking devices in regulations of smoking and other tobacco product use.

D. Secondhand cannabis smoke is a health hazard.

1. The California EPA included cannabis smoke on the Proposition 65 list of chemicals known to the State of California to cause cancer;

2. Cannabis smoke contains at least 33 known carcinogens;

3. In one study, exposure to cannabis smoke in an unventilated setting resulted in detectible levels of cannabinoids in nonsmoker participants' blood and urine, and participants experienced minor increases in heart rate and impaired cognitive performance; and

4. 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.

E. Nonsmokers who live in multiunit dwellings can be exposed to neighbors' secondhand smoke.

1. Several peer-reviewed studies on drifting secondhand smoke in multiunit housing have confirmed that secondhand smoke transfers between units, seeping into smoke-free areas from areas where smoking occurs.

2. Residents of multi unit housing have higher levels of cotinine (a biomarker for nicotine) in their blood and saliva than those living in detached houses.

SMOKE-FREE HOUSING ORDINANCE
1/11/22
2 3. Twelve peer-reviewed journal articles have found that between 26% and 64% of residents of multiunit housing report secondhand smoke drifting into their home.

4. Between 44% and 46.2% of Californians living in multiunit housing with personal smoke-free home policies are exposed to secondhand smoke in their home .

5. Surveys have found that 65% to 90% of multiunit housing residents who experience secondhand smoke in their home are bothered by it.

F 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.

1. Thirdhand smoke contains carcinogenic materials that accumulate over time, presenting a health hazard long after the initial smoke is gone.

2. A study found that thirdhand smoke remains months after nonsmokers have moved into units where smokers previously lived.

3. Human exposure to these thirdhand smoke carcinogens can occur through inhalation, ingestion, or skin absorption through contact with carpeting, furnishings, or clothing.

4. Thirdhand smoke potentially poses the greatest danger to infants and toddlers, who crawl on rugs and furnishings and place household items in their mouths.

5. Nonsmoking people who are exposed to thirdhand smoke have significantly higher nicotine and cotinine levels than those who have not been exposed to third hand smoke.

6. Research has shown that thirdhand smoke damages human cellular DNA.

G. The 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.

H. Secondhand smoke exposure in multiunit housing contributes to tobacco-related health inequities. For example, in California, when compared with adults who live in single family homes, adults who live in multiunit housing are more likely to be:

1. People of color (63% of residents of multiunit homes versus 49.6% of residents of single-family homes);

2. Lower-income or below the poverty line (46.8% versus 27%);

3. Lacking a high school diploma (21.4% versus 14.8%);

4. Current smokers (17.5% versus 13.2%);

5. Uninsured (23.4% versus 14.2%).

I. Secondhand smoke in multiunit housing is a significant threat to the health and safety of California children.
3 SMOKE-FREE HOUSING ORDINANCE
1/11/22

1. About a quarter of those who live in multiunit housing (25.2%) are under the age of 18.

2. The home is the primary source of secondhand smoke for children.

3. Fifty-six percent of 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.

4. Children who live in apartments have mean cotinine levels that are 45% higher than cotinine levels in children who live in detached homes.

J. A majority of multiunit housing residents, including a large portion of smokers, support smoke-free policies in multiunit residences.

1. Seventy-four percent of United States adults surveyed favor smoke-free public housing.

2. Sixty-one percent of Californians surveyed favor limiting smoking inside apartment units and 69% would support limiting smoking in outdoor common areas of apartment buildings.

3. Almost three out of four (72%) Eden area residents strongly support or support a smoke-free policy for where they live.

Section 6.74.010. Purpose and Intent
It is the purpose and intent of the Board of Supervisors, in enacting this Chapter, to prohibit smoking in and around Multi-Unit Residences to protect the health, safety, and general welfare of residents within certain unincorporated areas of the County of Alameda.

Section 6.74.020. Definitions
The following capitalized words and phrases, whenever used in this Chapter, shall be construed as defined in this section:
"Adjacent Unenclosed Property" means any Unenclosed Area of property, publicly or privately owned, that abuts a Multi-Unit Residence, but does not include a Lot containing a single-family home.
"Cannabis" has the meaning set forth in California Business and Professions Code section 26001, as that section may be amended from time to time.
"Common Area" means every Enclosed Area and every Unenclosed Area of a Multi-Unit Residence that residents of more than one Unit are entitled to enter or use, including, but not limited to, halls, pathways, lobbies, courtyards, balconies , 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. "Department" means the Planning Department of the Community Development Agency of the County of Alameda and its authorized representatives, designees, or agents.

SMOKE-FREE HOUSING ORDINANCE
1/11/22
4 "Enclosed Area" means an area in which outside air cannot circulate freely to all parts of the area, and includes an area that has:

A. Any type of overhead cover, whether or not that cover includes vents or other openings, and at least three (3) walls or other vertical constraints to airflow, including, but not limited to, vegetation of any height, whether or not those boundaries include vents or other openings; or
B. Four (4) walls or other vertical constraints to airflow, regardless of composition, including, but not limited to, vegetation, that exceed six (6) feet in height, whether or not those boundaries include vents or other openings.
"Landlord" means any Person or agent of a Person who owns, manages, or is otherwise legally responsible for a Unit in a Multi-Unit Residence that is leased to a residential tenant, except this term does not apply to a tenant who sublets their Unit. "Lot" means a separate parcel of land shown and identified as such on the records of the county recorder or on the final map of an approved and recorded subdivision . "Multi-Unit Residence" means a Lot with two or more Units, including, but not limited to, apartments, townhomes, condominium complexes, senior and assisted living facilities, and long­ term health care facilities; or a Lot with a Unit attached to another Unit on an adjacent Lot, including but not limited to attached townhomes. For the purpose of determining whether a property is a Multi-Un it Residence, the following do not constitute "Units": secondary { or accessory dwelling} units, as defined by Ordinance Code section 17.04.010 (including junior accessory dwelling units); and mobilehomes in a mobilehome park, as defined by Ordinance Code section

3.32.020.
"Nonsmoking Area" means any Enclosed Area or Unenclosed Area in which Smoking is prohibited by this Chapter or other law.
"Person" means any natural person, partnership , cooperative association , corporation, personal representative, receiver, trustee, assignee, or any other legal entity. "Smoking" means inhaling, exhaling, burning, or carrying any lighted, heated, or ignited cigar, cigarette, cigarillo, pipe, hookah, electronic smoking device, or any other device that delivers to a Person nicotine or other substances, including substances derived from Cannabis. "Smoking" includes using an electronic device that creates an aerosol or vapor, in any manner or in any form, or the use of any oral device for the purpose of circumventing the prohibition of Smoking. "Unenclosed Area" means any area that is not an Enclosed Area. "Unit" means a personal dwelling space, even one lacking cooking facilities or private plumbing facilities, and includes any associated exclusive-use Enclosed Area or Unenclosed Area, such as a private balcony, porch, deck, or patio. "Unit" includes, without limitation, an apartment unit; a condominium unit; a townhouse; a room in a senior facility; a room in a long-term health care facility, assisted living facility, or hospital; a room in a hotel or motel; a dormitory room; a room in a single-room occupancy ("SRO") facility; a room in a homeless shelter. This definition does not include a room in an unlicensed group living facility with 6 or fewer residents. This definition does not include: secondary (or accessory dwelling) units, as defined by Ordinance Code section 5 SMOKE-FREE HOUSING ORDINANCE
1/11/22

17.04.010 (including junior accessory dwelling units); and mobilehomes in a mobilehome park, as defined by Ordinance Code section 3.32.020.

Section 6.74.030. Scope
The requirements in this Chapter shall apply only with respect to Lots within the Urban Growth Boundary, set forth in the Alameda County General Plan.

Section 6.74.040. Smoking Prohibition in Multi-Unit Residence Units Beginning July 1, 2022, Smoking is prohibited in all Units of a Multi-Unit Residence , including any associated exclusive-use Enclosed Areas or Unenclosed Areas, such as a private balcony, porch, deck, or patio.

Section 6.74.050. Smokin g Prohibition in Multi-Unit Residence Common Areas Except in Designated Smoking Areas
A. Beginning July 1, 2022, Smoking is prohibited in Common Areas of a Multi-Unit Residence, except within a designated Smoking area meeting the following requirements :

1. The designated Smoking area is established by a Person with legal control over a Common Area, such as a Landlord or homeowners' association.

2. The designated Smoking area is:
a. An Unenclosed Area ;
b. At least twenty-five (25) feet from Unenclosed Areas primarily used by children, Unenclosed Areas of K-12 school campuses, and Unenclosed Areas with improvements that facilitate physical activity including, for example , playgrounds , tennis courts, and swimming pools, including any accessory features (e.g., seating, water fountains} but not including parking facilities;
c. At least twenty-five (25) feet from any Nonsmoking Area; d. At least twenty-five (25) feet from any doorway, window, opening , or other vent into an Enclosed Area, including an Enclosed Area not regulated by this Chapter. e. No more than ten percent (10%) of the total Unenclosed Area of the Multi-Unit Residence for which it is designated;
f. Clearly marked with a perimeter;
g. Identified by conspicuous signs; and
h. Not within any Enclosed or Unenclosed Area where Smoking is otherwise prohibited by this Chapter or other law.

B. Notwithstanding Section 6.74.050(A), on Lots one (1) acre or larger, a designated Smoking area need not comply with Section 6.74.050(A)(2}(f} and (g) (need not be clearly marked with a perimeter or identified with conspicuous signs).

C. No Person with legal control over a Common Area in which Smoking is prohibited by this Chapter or other law shall permit the presence of ashtrays , ashcans, or other receptacles primarily used for disposal of Smoking waste within the area. 6 SMOKE-FREE HOUSING ORDINANCE
1/11/22
Section 6.74.060. Smoking Prohibition Within Buffer Zones A. Beginning July 1, 2022, Smoking is prohibited in Adjacent Unenclosed Property located within twenty-five (25) feet of any doorway, window, opening, or other vent into an Enclosed Area of a Multi-Unit Residence. This area shall be known as a "Buffer Zone." B. Section 6.74.060(A) above does not apply to a Person who is Smoking in a Buffer Zone while actively passing on the way to another destination where Smoking is permitted.

Section 6.74.070. Responsibility of Persons with Legal Control of Nonsmoking Areas No Person with legal control over any Nonsmoking Area, including property owners, tenants, and subtenants, shall permit or suffer Smoking in a Nonsmoking Area in violation of this Chapter. For property subject to a lease agreement, a Landlord shall not be held responsible, and will not be liable, for a tenant's violation of this Chapter.

Section 6.74.080. Notice and Signage Requirements
A. No later than June 1, 2022, every Landlord or Person responsible for establishing rules in a Multi-Unit Residence shall deliver to each Unit of a Multi-Unit Residence a written notice meeting the requirements of Section 6.74.080(D).

B. Beginning June 1, 2022, prior to the signing of a lease agreement every Landlord shall provide prospective tenants written notice meeting the requirements of Section

6.74.080(0).

C. Beginning June 1, 2022, prior to any sale every seller of a Multi-Unit Residence or Unit within shall provide the buyer a written notice meeting the requirements of Section

6.74.080(0).

D. Written notice must provide the following information:

1. Beginning July 1, 2022, Smoking is prohibited in all Units, including any associated exclusive-use Enclosed Area or Unenclosed Area, such as a private balcony, porch, deck, or patio; and

2. Beginning July 1, 2022, Smoking is prohibited in all Common Areas except within specifically designated Smoking areas, if applicable.

E. Beginning July 1, 2022, Persons with legal control over Common Areas shall post and maintain clear and unambiguous "No Smoking" signs in sufficient numbers and locations in Common Areas where Smoking is prohibited by this Chapter or other law.

Section 6.74.090. Exception for Drug, Device, or Combination Product Authorized by United States Food and Drug Administration
Notwithstanding any provision to the contrary, nothing in this Chapter shall be interpreted to restrict or otherwise regulate the use of a drug, device, or combination product authorized for sale by the United States Food and Drug Administration , as those terms are defined in the Federal Food, Drug, and Cosmetic Act. This exception does not apply to tobacco products regulated by the United States Food and Drug Administration.

SMOKE-FREE HOUSING ORDINANCE
1/11/22
7 Section 6. 7 4.100. Public Health Department Education A. The Public Health Department shall educate community members about the requirements in this Chapter.

B. The Public Health Department shall establish and implement a process for issuing warnings. Each warning shall be accompanied by educational materials explaining the requirements of this Chapter.

Section 6.74.110. Administrative Enforcement
A. Upon a finding that a Person has violated any provision of this Chapter, the enforcement officer designated by the Department shall give written notice of the violation to the Person in possession of the Unit; or to an owner, Landlord, or homeowners ' association for a violation of Sections 6.74.080. Such notice shall be provided in person or by pre-paid certified mail, return receipt requested and shall include a copy of this Chapter and a statement describing the section(s) found to be violated.

B. The enforcement officer designated by the Department may impose the following administrative penalties, which penalties may be assessed at the time of the notice of violation:

1. A $100 (one hundred dollars) fine upon a finding of a first violation of this Chapter within any three-year period.

2. A $200 (two hundred dollars) fine upon a finding of a second violation of this Chapter within any three-year period.

3. A $500 (five hundred dollars) fine upon a finding of a third or subsequent violation of this Chapter within any three-year period.

C. The Department shall not issue any written notice of violation for or impose any administrative penalties upon a Person unless the Public Health Department has issued at least three warnings to the Person.

D. Penalties must be paid directly to the County to the address indicated in the notice. Unpaid penalties may be collected via the County's central collections agency or may be added to the lien on the subject property under the process set forth in Chapter 6.65.

E. Any Person receiving an administrative penalty under this section may appeal the violation to the Planning Director within 10 (ten) calendar days of the date the notice of penalty is sent to the Person. The appeal must contain:

1. Specific identification of the address of the Multi-Unit Residence;

2. The names and addresses of all appellants, including unit number, if any;

3. A statement of the appellant's relationship to the property at issue (e.g., tenant, owner);

SMOKE-FREE HOUSING ORDINANCE
1/11/22
8 4. A statement in ordinary and concise language of the grounds for appeal, stating the facts supporting appellant's contention that they did not violate this Chapter or that the violation has been corrected;

5. If the appellant is seeking a hearing before the Planning Director, a statement that a hearing is requested;

6. The date and signatures of all appellants; and

7. The verification (by declaration under penalty of perjury) of at least one appellant as to the truth of the matters stated in the appeal.

F. Late appeals and appeals based on financial hardship will not be considered.

G. The Planning Director will consider the appellant's written appeal and will issue a decision based on the written appeal unless the appellant requests a hearing .

1. If the Planning Director determines , based on the facts in the record, that the appellant violated this Chapter, the Planning Director shall uphold the declaration of violation, unless the appellant presents clear and convincing evidence that the violation has been corrected. If the Planning Director upholds the appeal, the notice of violation and administrative penalty will be rescinded .

2. The Planning Director's decision shall be in writing. The decision will be provided in person or by pre-paid certified mail, return receipt requested . The decision shall be final.

H. Planning Director appeal hearings shall not be conducted unless timely requested by the appellant and shall follow the following procedures.

1. The Planning Director shall set the matter for hearing at least 10 (ten) and not more than 60 (sixty) days from the date of the appeal. The Planning Director may hear additional evidence and may sustain , modify, or overrule the finding of violation.

2. All hearings shall be electron ically tape recorded.

3. Hearings need not be conducted according to the California Code of Evidence.

4. Any relevant evidence shall be admitted if it is the type of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions in courts of competent jurisdiction in the state.

5. Irrelevant and unduly repetitious evidence shall be excluded.

I. An appellant whose appeal is denied may seek review by filing an appeal to be heard by the superior court under Government Code section 53069.4. Such appeal must be filed within 20 days after service of the final decision .

Section 6.74.120 . Enforcement

SMOKE-FREE HOUSING ORDINANCE
1/11/22
9 A. The remedies provided by this Chapter are cumulative and in addition to any other remedies available at law or in equity.

B. Violations of this Chapter are subject to a civil action brought by the District Attorney, punishable by a civil fine not less than two hundred fifty dollars ($250) and not exceeding one thousand dollars ($1,000) per violation.

C. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this Chapter shall also constitute a violation of this Chapter and shall be subject to enforcement as described in Section 6.74.110.

D. In addition to other remedies provided by this Chapter or by other law, any violation of this Chapter may be remedied by a civil action brought by the County, including, for example, civil or criminal Code enforcement proceedings, and suits for injunctive relief.

Section 6.74.130. Termination of Tenancy; Requirements
No Landlord may terminate a tenancy for a Multi-Unit Residence regulated by this Chapter on the basis of a tenant's violation of this Chapter unless the Department has issued at least three written notices of violation to the tenant.

Section 6.74.140. Authority to Adopt Regulations to Implement this Chapter A. The Department may adopt rules and regulations that are necessary or appropriate to implement, administer, and enforce the provisions of this Chapter.

Section 6. 7 4.150. Severability
A. 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 Board of Supervisors 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.

SMOKE-FREE HOUSING ORDINANCE
1/11/22
10 SECTION II
A. This ordinance shall take effect thirty {30) days from and after the date of passage.

B. Before the expiration of fifteen (15) days after its passage, it shall be published once with the names of the members voting for and against the same in the Inter-City Express, a newspaper published in the County of Alameda.

SMOKE-FREE HOUSING ORDINANCE
1/11/22
11 . . . January Adopted by the Board of Supervisors of the County of Alameda, State of California, on __ _ 25, 2022 , by the following called vote:

AYES: Supervisors Brown, Haubert, Miley, Valle and President Carson - 5 None
NOES:

None
EXCUSED:

ATTEST:

Clerk of the Board of Supervisors
County of Alameda
Keith Carson
Keith Carson
President of the Board of Supervisors
County of Alameda, State of California
Cheryl Perkins By: _____________ _
APPROVED AS TO FORM:

DONNA R. ZIEGLER, COUNTY COUNSEL
County of Alameda
G ........ ~,
By: ~~3L~bl3\. ..

Raymond Leung, Deputy County Counsel

SMOKE-FREE HOUSING ORDINANCE
1/11/22
12 A PUBLIC HEALTH
~ LAWCENTER
at Mitchell Hamlin • School of Law
/ ,=
American
Lung Association .

Californ ia
/ ,,,,2021
Law and Policy Partnership to End the Commercial Tobacco Epidemic

CANNABIS SMOKING
in Multi-Unit Housing
,,,,,,,,,, Under California law, it is illegal to smoke cannabis in public places, including anywhere that smoking tobacco 1 is prohibited. 2 In many communities throughout the state, however, as in the growing number of states that legalize medical and recreational cannabis, questions continue to arise about the smoking of cannabis in multi-unit housing.

This fact sheet answers common questions for California property owners and tenants about the possible health risks of cannabis smoke, the "righ t" to smoke cannabis, various options for regulating the smoking and vaping of cannabis in mult i-unit residences, and similarities between smoke-free tobacco and cannabis policies .
,11.:....;;;;====================================:::::::::===========================i www.publichea lthlaw center .org/caltobacco
~ PUBLIC HEALTH
~ LAW CENTER
•t Mltch•II H•mlin ♦ Sehool of Uw
T
American
Lung Association.

Californ ia
.,., Q: What are the health risks of secondhand cannabis smoke ? A : Limited research has been done on the risks of exposure to secondhand cannabis smoke, in contrast to the decades of scientific studies on secondhand tobacco smoke.3 Recent studies, however, have shown that emissions from burning cannabis and tobacco cigarettes contain many of the same toxins, irritants, and carcinogens.4 Among the thirty-three known carcinogens present in cannabis smoke are acetaldehyde, arsenic, benzene, chromium, formaldehyde, isoprene, lead, mercury, nickel, and quinoline. 5 As most Californians have learned in recent years, smoke inhalation is a health risk, whether from a cigarette, a joint, a campfire, or a wildfire. Both tobacco and cannabis smoke contain inhalable airborne particles that can cause respiratory symptoms, such as coughing, phlegm, and wheezing and can exacerbate health problems, especially for people with respiratory conditions such as asthma, bronchitis, and chronic obstructive pulmonary disease.6 Secondhand smoke exposure and particulate inhalation also increases the risk of coronary heart disease7 and stroke. 8 Moreover, heavy exposure to cannabis smoke can result in measurable concentrations of THC (the ingredient that produces cannabis's psychoactive effect) in nonusers' blood serum and urine.9 Exposure to cannabis smoke in an unventilated setting has caused participants to experience minor increases in heart rate and impaired cognitive performance. 10
Also, a 2016 study in rats found that secondhand exposure to cannabis smoke affected a measure of blood vessel function as much as secondhand tobacco smoke and had longer lasting effects. 11 Although this research has not yet been conducted with humans, the toxins and other substances present in cannabis smoke raise troubling questions about the impact of secondhand smoke exposure on vulnerable individuals, such as infants, child ren, and anyone with a serious lung condition. 12
The California Environmental Protection Agency includes cannabis smoke on the Proposition 65 list of chemica ls known to cause cancer and reproductive/developmental toxicity. 13 Also, as an indication of concern about the health risks of exposure to cannabis smoke, the American Society of Heating, Refrigerating, and Air Conditioning Engineers (ASH RAE) includes cannabis smoke (as wel l as emissions from electronic smoking devices) in its definition of "environmental tobacco smoke."14 ASHRAE's national air standards have long been cited by tobacco control advocates, along with the Society's position that the only way to effectively eliminate the health risks posed by indoor exposure to secondhand smoke is to prohibit smoking.

July 2021
www.publichealthlawcenter.org/caltobacco Regulating Cannabis Smoking in Multi-Unit Housing 2 ~ PUBLIC HEALTH
~ LAWCENTER
at Mltch•II Hamllne Sc.hoot of Uw / T
American
Lung Association.

Califomia
""'""' Q: Do California tenants have the right to smoke cannabis in multi-unit apartment buildings?
A: Although California has legalized the adult use of recreational cannabis, there is no absol ute right to smoke cannabis anywhere , just as there is no constitutional right to smoke tobacco, particularly when smoking impacts others. 15 Secondhand smoke, whether from combustible or aerosolized tobacco (e.g., e-cigarettes) or cannabis or cannabis products, can seep throughout multi-unit buildings from areas where smoking occurs, via venti lation systems, plumbing, or electrical lines.16 Secondhand smoke can easily spread throughout a multi-unit building, compromising the health of all exposed to it. According to one U.S. study, 50 percent of residents in ostensibly smoke-free multi-unit buildings still experienced smoke entering into their units from adjacent units.17
""'""' Q: Who has legal authority under California law to require that a multi-unit property be smoke-free?
A: Under California law, landlords and multi-unit resident ial property owners have the legal authority to make their properties smoke-free.18 This includes prohibiting the smoking or vaping of recreational or medica l cannabis in individual units and common areas.19 Also, if a complex includes a playground or tot lot sandbox area, the landlord is required by law to prohibit smoking with in 25 feet of the area.20
July 20 21
w w w .publicheal t hlawcenter.org/caltobacco Regulating Cannabis Smoking in Multi - Unit Housing 3 / T
American
Lung Association.

California
Local governmen ts also have legal authori ty to enact smoke-free legislation that includes the smoking or vaping of cannabis. As of April 2021, sixty-five California cities and counties have enacted laws that prohibit smoking in private units of multi-unit housing properties. 21 A growing number of these smoke-free laws include the smoking or vaping of cannabis. 22 ,,,, Q: What are the benefits of a smoke-free multi-un it housing policy that prohibits the smoking or vaping of cannabis? A: A multi-unit housing policy that allows the smoking and vaping of tobacco and cannabis products can result in high maintenance and turnover costs, due to the need to clean, renovate, and refurbish units where heavy smoking has occurred . At a time of housing scarcity in California, a smoke-free policy can help property managers prevent complexes from deteriorating and prolong the viability of as many units as possible. Smoking or vaping in residences also raises the risk of fires. Cigarettes have long been a leading cause of residential fire deaths, and fires caused by cigarette smoking result in over $300 million in property loss each year.23 For example, in California the July 2020 Clay Fire, which burned 730 acres and required the efforts of eight fire departments (and numerous agencies and power companies) to manage, was ignited by a cigarette butt.* Limited research is available on the smoldering and burning properties of cannabis cigarettes. 24 Cannabis, however, is commonly vaped via a variety of electronic devices, which on occasion have exploded and caused injury and death, as well as fire. 25 Finally, allowing the smoking or vaping of cannabis on the premises could generate resident complaints due to drifting smoke or aerosol and even lead to Fair Housing Act complaints or lawsuits. 26 In contrast, a smoke-free housing policy creates a healthier indoor environment, reduces turnover costs, lowers the risk of litigation, decreases the likelihood of fire, and helps meet the needs and preferences of most residents. 27 Also, some property insurance companies offer a discount for buildings that have a smoke-free policy .
,,,, Q: What can California tenants do if a neighbor in their multi-unit complex smokes cannabis?
A: Tenants have the right to breathe clean air and not be exposed to secondhand smoke in their own home. The Law and Policy Partnership to End the Commercial Tobacco Epidemic has released a Tenant Guide to Addressing Secondhand Smoke (including cannabis smoking or vaping) for California cities and count ies.28 The guide is designed to help California tenants understand options available to them when they experience any type of secondha nd smoke * Cal Fire, Clay Fire (July 30, 2020), https://www. fire.ca.gov/incidents/2020/7/29/clay -fire.

July 20 21
I .I.All ____________________________________ _
www. p u bl ic health I awcenter .org/ caltobacco Regula t i ng Cannabis Smo kin g in Mult i-Un i t Housing 4 f
American
Lung Association .

California
in multi-unit housing. The resource is organized rough ly in the order that options should be considered, with litigation included only as a last resort. , ., Q: Can California tenants in apartment buildings who are registered users of medical cannabis claim they can smoke or vape medically prescribed cannabis in their units because they are disabled and entitled to rights as a protected class under the Americans with Disabilities Act? What about the claim that they are entitled to "reasonable accommodations" under the federal Fair Housing Act? 29
A: This is an interesting question. The Fair Housing Act prohibits discriminat ion in housing on the basis of race, color, religion, sex, national origin, familial status, and disability .30 For example, the Act requires housing providers to make "reasonable accommodations" 31 in rules, policies, practices, or services when necessary to give a disabled person an equal opportunity to use and enjoy a dwelling unit or common space.32 Under the Fair Housing Act, individuals are disabled if they have a physical or mental impairment that substantially limits one or more major life activities, have a record of such impairment, or are regarded as having an impairment. 33 Many individuals authorized to use medical cannabis would likely qualify as disabled under this definition.

July 2021
www.publichealthlawcenter.org/caltobacco Regulating Cannabis Smoking in Multi-Unit Housing 5 l!ltJ. PUBLIC HEALTH
~ LAW CENTER
•l Ml1c.h411 t4olmlln• School or t.lW
/ T American Lung Association.

California
The Fair Housing Act, however, states that a handicap "does not include current, illegal use of or addiction to a controlled substance" 34 as defined in the federal Controlled Substances Act. 35 Although several states have passed laws legalizing its sale and use, cannabis continues to be categorized as a Schedule 1 drug under federal law (that is, a drug with high potential for abuse with no currently accepted medical use in treatment in the U.S.).36 Thus, it remains a federal offense to possess or use cannabis.37 Because federal law supersedes state law, questions have naturally arisen about federal preemption of these state cannabis laws. In 2013, in an attempt to clarify the federal position on the enforcement of cannabis laws, the U.S. Department of Justice announced that the administration would not prosecute individuals or organizations engaged in cannabis activities that are conducted in clear compliance with state and local narcotics laws that permit and regulate these activities. 38 This continues to be the federal stance in the Biden administration.

Thus, even though the Fair Housing Act requires housing providers to make reasonable accommodations for persons with disabilit ies, cannabis's current status as a Schedule 1 drug makes it unclear whether such a case brought under this federal civil rights law would succeed.39 One note: As mentioned above, secondhand smoke poses health risks - especially to vulnerable individuals - and can exacerbate existing disabi lities in other tenants. This, in turn, could defeat the purpose of the ADA when applied to medical cannabis use in multi-unit buildings . .,., Q: If a multi-unit property owner would like to adopt a policy that prohibits residents from smoking cannabis in their residences, what other grounds could be used as a basis for t he policy? A: Depending on the jurisdiction, and whether a smoke-free law at the local level has declared secondhand smoke to be a "nuisance," the housing association might be able to prohibit or otherwise restrict the smoking of cannabis on the property on the ground that it is a nuisance 40 or violates the renta l property's "warranty of habitability.'' 41 .,., Q: What steps should landlords or multi-unit property owners take if they want to prohibit the smoking of cannabis in their residences?
A: First, landlords and property owners should be aware of (or consult an attorney familiar with) laws regarding cannabis use in their jurisdiction. These laws vary in California cities and counties, particularly regarding cannabis use in multi -unit housing.42 Next, landlords and property owners should include language regard ing the smoking of cannabis in their lease or rental agreements . These provisions should clearly and explicitly July 2021
www.publich ealthlawcenter.org/caltobacco Regulating Cannabis Smoking in Multi-Unit Housing 6 ~ PUBLIC HEALTH
~ LAW CENTER
•t Mltch•II H11mlln. S.C.hoor of bw
/ T American / Lung Association.
/ California
specify the type of cannabis use prohibited on the property, premises covered by the policy (ins ide and outside) , and the consequences of lease violations.

The Law and Policy Partnership to End the Commercial Tobacco Epidemic has released a Smoke-Free Multi-Unit Housing Model Ordinance for California cities and counties that can be easily adapted to include the smoking or vaping of cannabis.43 ,,,, Q: If a landlord or owner of a market rate property grants a tenant's request to use medical cannabis on the premises, does that mean that other residents run the risk of being exposed to cannabis smoke?
A : A "reasonable accommodation" should not result in the potential exposure of others to secondhand cannabis smoke.44 Several methods for ingesting medical cannabis - such as extracts, tinctures, oils, edibles, pills, and cannabis inhalers - would not expose other residents to cannabis smoke.45 Although each individual's medical situation is different and some methods of ingesting cannabis might not have the same effect as smoking cannabis, a middle ground might be reached for many cannabis users, in concert with advice from the referring physician. Note that these methods of consumption are also available for recreational cannabis. ,,,, Q: Can public housing authorities prohibit the smoking of cannabis in federally subsidized housing?
A : Yes. Secondhand smoke, whether from tobacco or cannabis products, spreads throughout multi-un it dwellings. Public and other subsidized housing owners have the same rights as owners of non-public housing to adopt smoke-free policies. 46 These smoke-free policies may include a prohibition on smoking of medical, as well as recreational, cannabis. Moreover, the U.S. Department of Housing & Urban Development (HUD) explicitly states that if applicants for public or Section 8 housing are known users of cannabis (medical or otherwise), their appl ications must be denied.47 Also, if current residents request a reasonable accommodation to allow them to use medical cannabis in their unit, the request must be denied, as that may set an expectation that all residents in similar situations could expect an accommodation. 48 In a memo released January 20, 2011, HUD clarified that the Public Housing Reform Act allows (but does not compel) public housing authorities to terminate assistance for existing residents if they use a controlled substance.49 Public housing authorities have discretion to determine those policies deemed most appropriate for their local communities , including denying assistance or terminating individual medical cannabis users, rather than entire households, for July 2021
www.pub lichealthlawcenter .org/caltobacco Regulating Cannabis Smoking in Multi -Unit Hous ing 7 ~ PUBLIC HEALTH
~ LAW CENTER
at Mitch.t i H•mlln• School of L•w
T
American
Lung Association .

Califom,a
both applicants and existing residents. The U.S. Food and Drug Administration has approved for medicinal use drugs comprised of cannabis derivatives and synthetics (such as Epidiolex, Marino!, and Cesament), which are not medical cannabis or Schedule 1 drugs, and are thus allowed in public housing and voucher programs .50
,,,, Q: Doesn't HU D's smoke-free rule prohibit the use of cannabis by residents in public housing?
A: No. HUD requires that public housing agencies prohibit the use of tobacco products in all indoor areas. This smoke-free requirement, which took effect July 31, 2018, applies to all public housing, but does not include all federally subsidized housing, such as dwelling units in mixed-finance buildings or privately owned dwellings financed under Section 8 of the Housing Act . The rule covers combustib le tobacco products, such as cigarettes, cigars, and pipes, as well as hookahs, but does not include e-cigarettes or similar devices, or the smoking or vaping of cannabis. Property managers can opt to apply their facility smoke-free standards to e-cigarettes and other products not covered by the HUD standard.

Because cannabis is a federal ly prohibited substance, the use and possession of this drug is already prohibited on HUD-funded (and other federal) properties, regardless of HU D's smoke­ free law. Federal law preempts state law, including in those states where the use of medical or recreational cannabis is now legal.
,,,, Q: Can public housing agencies evict residents who use medical cannabis?
A: Yes, it is within their discretion to do this, but it should be considered only as a last resort after other alternatives have proved unsuccessful.51 Ironically, the same smoke-free policies that are in place to protect residents and improve their housing stability are policies that, when enforced, may put another resident's housing stability in jeopardy because of possible penalties or eviction.52 The impact of eviction upon an individual and family can be devastating and this measure should be avoided if at all possible. A structure of graduated penalties helps ensure better compliance with a smoke-free policy by providing multiple steps for enforcement and giving residents the opportunity to change their behavior before infractions rise to the level of lease termination. 53 HUD's 2011 memo mentioned above stated that residents who revealed cannabis use on their public housing applications would be denied admission to Public Housing or Housing Choice Voucher programs, regardless of their circumstances, since cannabis is a controlled substance. 54 However, the memo also gave public housing authorities (and, most often, July 2021
www.publichealthtawcenter.org/caltobacco Regulating Cannabis Smoking in Multi-Unit Housing 8 ~ PUBLIC HEALTH
~ LAW CENTER
at Mltc.h•II H•mllrt• Schoo1 ot Law /
t
American
Lung Association.

California
individual landlords) the right to use their discretion on how to execute medical cannabis lease provisions. Housing authorities will need to conduct individual assessments of each individual request, focusing on the right of all tenants to have equal access to safe and clean air.

Also, as noted earlier, not only are several FDA-approved cannabis synthetics and derivatives available, but medical cannabis users can ingest the drug in a variety of ways that do not result in secondhand smoke exposure of fellow tenants.
,,,, Q: What are some basic guidelines for multi-unit residential property owners and housing authorities who would like to prohibit or restrict the smoking or vaping of cannabis on their property? A : Property owners and housing agencies need to clear ly communicate their cannabis-related policies to all residents, housing applicants, and visitors. They can do this by updating their established occupancy standards and lease provisions, and providing handouts to tenants, prospective tenants, or visitors.

Below are a few basic considerations to keep in mind when implementing any smoke-free policy . • Clearly define "smoking," vaping, and related terms in any lease and rental agreements in buildings designated as No-Smoking or Non-Smoking. If a property's smoke-free (or tobacco-free) policy covers the smoking and vaping of cannabis, be explicit about what that entails and what areas are included (for example, indoor common areas and residential units) . Other areas covered under such a policy could include outside premises, such as walkways, parking lots, balconies, porches, patios or decks of individ ual units, and areas near doorways, windows, and air vents.
• Explain the policy's ration ale. Make sure that residents, guests, employees , and others associated with a multi -unit property understand the health risks related to smoking, vaping, and exposure to secondhand smoke and aerosol.
• App ly the smoke-free pol icy uniformly to all residents, guests, and employees. • Ensure that an effective enforcement plan is in place that describes the process for handling violations. (The Partnership's model ord inance does not include criminal sanctions for those who smoke, and focuses primary responsibility for enforcement on landlords by holding them accountable with appropriate civi l penalties if they allow smoking or otherwise violate the local ordinance.)
• Prepare tenants and staff for implementat ion of the policy by providing , for example, announcements, educational material or presentations, staff training, and signage.

July 2021
www.publichealthlawcenter .org/caltobacco Regulating Cannabis Smoking in Multi - Unit Housing 9 l!1t.. PUBLIC HEALTH
~ LAW CENTER
at Mitd1 •II Hamlln• School of l~w
T
American
Lung Assoc iation.

Cal~omla
1 1 Q: Where can I get additional information about issues related to smoking or vaping cannabis and parallels between cannabis regulation and tobacco control policies?
A : In addition to the Law and Policy Partnership to End the Commerc ial Tobacco Epidemic's tobacco-free housing resources, the Public Health Law Center's web page contains several publicat ions and resources on smoke-free housing, including resources that discuss concepts related to condominiums, apartments and other multi-unit dwellings , affordable housing, and smoke-free housing disclosure policies . Many of these materials may be relevant for those seeking to regulate the use of cannabis products. Cannabis-specific legal resources include the Center's policy briefs, Toking, Smoking, & Public Health: Lessons from Tobacco Control for Marijuana Regulation (2018) and There is No Constitutional Right to Smoke or Toke (2019), and several archived webinars . Also, the American Nonsmokers' Rights Foundation's website has several resources related to secondhand tobacco and cannabis smoke, including regularly updated maps of state and local laws prohibiting the smoking and vaping of cannabis.

For more information about California's cannabis-related laws and policies, as well as a wealth of state-specific cannabis resources, check out the California Cannabis Portal.

Th is publication was prepared by the American Lung Associa tion in California and the Publ ic Health Law Center, a nonpro fit organization that provides info rma tion and legal techn ical assistance on issues related to public health. The Center does not prov ide legal representation or advice. The inform ation in th is docum ent shou ld not be considered legal advice. This case study was made possible by fun ds received from Grant Number 19-10229 with the California Department of Public Health, Californ ia Tobacco Cont rol Program, and the American Lung Association in Californ ia.

Endnotes
The Public Health Law Center recognizes that traditional and commerc ial 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 centur ies. Comparatively, commercial tobacco is manufactu red 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 commerc ial context is implied and intended. 2 Cal. Health Safety Code§ 11362.3(a)(2) , https://leginfo.legislature.ca.gov/faces/codes _displaySection .xhtml?section ­ Num=ll362.3.&lawCode=HSC. Note that Section 11362.1 does permit the smoking or ingesting of cannabis or cannabis products in a public place if it is in accordance with Section 26200 of the Business and Professions Code. This would include, for example, smoking cannabis at temporary events or on the premises of a licensed retailer or micro business, if all specified requirements are met. https://leginfo .legislature.ca.gov/faces/codes_displayText.xhtm l?lawCode=BP­ C&division =10 .&title=&part=&chapter =20.&article=
3 See, e.g., Matthew Springer and Stanton Glantz, Marijuana Use and Heart Disease: Potential Effects of Public Exposure to Smoke (April 22, 2015), https://tobacco .ucsf.edu/marijuana-use-and-heart-disease-potent ial-effects-pub lic-exposure-smoke .

Ju ly 2021
.I.la'...- __________________________________________ ~ www.publichealthlawcenter.org/caltobacco Regulating Canna b is Smoking in Multi-Unit Housing 10 ~ PUBLIC HEALTH
~ LAWCENTER
at Mitch•II Hamlin• .School Qf Law / T
American
Lung Association.
/ Califomia
4 See, e.g., UCLA, Secondhand Marijuana Smoke: What are the Risks to Your Health? (2020), https://connect .uclahealth. org/2020/10/29/secondhand -marijuana-smoke-what-are-the-risks-to -your-health. 5 Reproductive and Cancer Hazard Assessment Branch, Office of Environmental Health Hazard Assessment, California Environmental Protection Agency, Evidence on the Carcinogenicity of Cannabis Smoke (2015), http://oehha.ca .gov/ prop65/haza rd_ident/pdf_z ip/FinalMJsmokeHID.pdf.
6 See, e.g., Hannah Holitzki et al., Health Effects of Exposure to Second- and Third-hand Cannabis Smoke: A Systemotic Review, 5 CAN. Mm. Ass'N J., E814-E822 (2017), https://www.ncbi.nlm.nih.gov/pmc/artic1es/PMC5741419; Nat'I Inst. Drug Abuse, What Are the Effects of Secondhand Exposure to Cannabis Smoke (2020), https://www.drugabuse.gov/publ ica­ tions/research-reports/cannabis/what-are-e ffects-secondhand -exposure-to-cannab is-smoke; Americans for Non­ smokers Rights, Secondhand Cannabis Smoke (2021) , https ://no-smoke.org/secondhand-cannabis -smoke-fact-sheet. 7 See, e.g., Joaquin Barnoya & Stanton Glantz, Cardiovascular Effects of Secondhand Smoke, 111 CIRCULATION 2684-98 (2005), https://www.ahajournals .org/doi/full/10.1 161/C IRCULATIONAHA.104.492215. 8 See, e.g., Angela Malek et al., Secondhand Smoke Exposure and Stroke: The Reasons for Geographic and Racial Differences in Stroke (REGARDS) Study, 49 AM J. PREV. Mm e89-e97 (2015), https://www.ncb i.nlm.nih.gov/pmc/ar tic1es/PMC4656115. 9 Rosalie Liccardo Pacula et al., Developing Public Health Regulations for Cannabis: Lessons from Alcohol and Tobacco, 104 AM. J. Pus. HEALTH 1021, 1024 (2014).
10 Evan S. Herrmann et al., Non-Smoker Exposure to Secondhand Cannabis Smoke II: Effect of Room Ventilation on the Physio­ logical, Subjective, and Behavioral/Cognitive Effects, 151 DRUG ALCOHOL DEPEND. 194-202 (2015), https://www.ncbi.n lm. nih.gov/pmc/articles/PMC4747424.
11 Xiaoyin Wang et al., One Minute of Marijuana Secondhand Smoke Exposure Substantially Impairs Vascular Endothelial Func­ tion, 5 J. AM. HEART Assoc. e03858 (2016), https://www.ncbi.n lm.nih.gov/pmc/artic 1es/PMC50l5303. 12 See id.
13 Cal. Office of Env'I Health Hazard Assessment, Cannabis (Marijuana) Smoke (2009, 2020), https://oehha.ca.gov/propo ­ sition-65/chemica ls/cannab is-marijuana-smoke.
14 American Society of Heating, Refrigerating, and Air Conditioning Engineers, Standards for Ventilation and Indoor Air Qual ity - Standards 62.1-62.2 (2016).
15 Public Health Law Center, There is No Constitutional Right to Smoke or Toke (2019), https://www .publichealthlawcente r. org/sites/de fault/files/resources/No-Const itutiona l-Right-Smoke -Toke-2019.pdf. Note that although Alaska has a privacy right that covers the consumpt ion of cannabis in the home. this does not mean Alaskans have a right to expose fellow tenants to secondhand smoke. Id. at 12-13.
16 Ctrs. for Disease Control and Prevention, Going Smokefree Matters: Multiunit Housing (2020), https ://www.cdc.gov/ tobacco/basic _information/secondhand smoke/go ing-smokefree-matters/mu lt i-unit. 17 Andrea S. Gentzke et al., Attitudes and Experiences with Secondhand Smoke and Smoke-Free Policies Among Subsidized and Market-Rate Multiunit Housing Residents Living in Six Diverse Communities in the USA, 27 TosAcco CONTROL 194, 194 (2018). 18 Cal. Civ. Code §1947.5, https://leginfo. legislature.ca.gov/faces/codes _displaySection.xhtml?lawCode =CIV&section­ Num= l 947.5.
19 Clifford E. Douglas, Smoke-free Environments Law Project, Restricting the Use of Medical Cannabis in Multi-Unit Residen­ tial Settings: Legal and Practical Considerations (2010), http://www.mismokefreeapartment.org/MMana lysis.pdf. 20 Cal. Health and Safety Code § 104495.
21 American Nonsmokers' Rights Foundation, U.S. Laws for 100% Smokefree Multi-Unit Housing (2021). https://no-smoke. org/wp -content/uploads/pdf/smokefreemuh.pdf. Most of these laws - 56 municipalities - apply to properties with two or more units.

July 2021
www.pub lichealthlawcenter.org/ caltobac co Regulating Cannabis Smoking in Multi-Unit Housing 11 l!Jt.. PU BLIC HEALTH
~ LAWCENTER
el Mitchell Hamlil'I♦ School of Law
/
/ T
American
Lung Association.

Califomfa
22 See, e.g., Santa Clara Ordinance 2029 (2021), Smokefree Santa Clara I City of Santa Clara (santacla raca.gov); Palo Alto Municipa l Code 9.1 (2021), https://code library.am legal.com/codes/pa loalt o/ latest/paloalto ca/0-0-0-6175; Mountain View, Kevin Forestieri, Mountain View Bans Smoking in Multifamily Residences, Including Common Areas and Inside Areas, MOUNTAIN View VOICE (May 26, 2021), https://www.mv -voice.com/news/2021/05/26/mountain-v iew-bans -smoking ­ in-multi- family-residences-including-c ommon -areas-and-inside-units. 23 Brian King et al., National and State Cost Savings Associated with Prohibiting Smoking in Subsidized and Public Housing in the United States, 11 PREV CHRONIC D1SEASE 40222 (2014), https ://www.cdc .gov/pcd/ issues/2014/14 0222.htm . 24 See, e.g., Maryanne Fakeh Campbel l et al., E-cigarette Environmental and Fire/Life Safety Risks in Schools Reported by Secondary School Teachers, 20 BMC Pusuc HEALTH 1215 (2020), https://bmcpublichea lth.biomedcentral.com/art i­ c les/10.1186/s 12889-020-09319 -8.
25 See Ame ricans for Nonsmokers' Rights Foundation, E-cigarette Explosions and Fires (2021), https://no-smoke .org/ wp-content/uploads/pdf/E -Cigarette-Exp losions -and-Fires.pdf 26 See, e.g., 42 U.S.C. § 3601 et seq.
27 M ichael Ong et al., Estimates of Smoking Related Property Costs in California Multiunit Housing, 102 AM. J PUBLIC HEALTH 90-93 (2012), https://www.ncbi.n lm.nih.gov/pmc/art ic1es/PMC3487653 . 28 See Public Health Law Center, Tenant Guide to Addressing Secondhand Smoke (2020), https://www.pub lichealthlawcen­ ter.org/s ites/de fault/fi les/resou rces/Tenants-R ights -Guide.pdf. 29 See generally Public Health Law Center, Smoke-free Public Housing: Reasonable Accommodations (2021), https://www. pub I ich ea Ith la ween t e r.org/s it e s/d efa ult/files/resou rces/Smoke -Free-Pub Ii c- Hou sing-Reasonable-Aecom m odat i on s. pd f. 30 Id. Note that Tit le II of the Amer icans with Disabil ities Act also ensures that individuals with disabilities have equal access to fair housing . 42 U.S.C. §§ 3604; 12102.
31 See generally U.S. Dep't of Housing and Urban Development, People with Disabilities web page (HUD .Gov), http ://portal. hud.gov/hudpo rtal/ HUD?src=/ program offices/fair housing equal_opp/disab ilities/sec t504faq#anchor257647; see also U.S. Dep't of Justice & U.S. Dep't of Housing and Urban Development, Reasonable Accommodations under the Fair Hous­ ing Act (May 5, 2008) (Joint Statement), https://www .hud.gov/sites/dfiles/FHEO/documen ts/hud dojstatement.pdf. 32 42 U.5.C. § 3602 (h).
33 42 U.5.C. § 3602 (h); see also Douglas, supra note 18, at 4. 34 42 U.5.C. § 3602 (h).
35 21 u.sc. § 802.
36 id.
37 See 21 U.S.C. §§ 841(a)(l); 844(a); 812(b)( 1)(A)-(C) . 38 U.S. Dep't of Justice, Guidance Regarding Cannabis Enforcement (Aug . 29, 2013), http://www.justice .gov/iso/opa/re­ sources/3052013829132756857467.pdf. The U.S. Departmen t of Justice's priorities are: "Preventing the dist ribution of cannabis to minors; preventing revenue from the sale of cannabis from going to criminal enterprises, gangs, and cartels; preventing the diversion of cannab is from states where it is legal under state law in some form to other states; prevent ­ ing state-authorized cannabis activ ity from being used as a cover or pretext for the traffick ing of other illegal drugs or other illegal activi ty; preventing violence and the use of firearms in the cult ivation and dist ribut ion of cannabis; prevent ­ ing drugged driving and the exacerbation of other adverse pub lic health consequences associated with cannab is use; preventing the grow ing of cannabis on public lands and the attendant public safety and environmental dangers posed by cannabis production on public lands; and preventing cannabis possession or use on federal property." Id. at 1-2.

July 2021
www.p ubliche althlawce nt e r.org / caltobacco Regulating Cannabis Smoking in Multi-Unit Housing 12 ~ PUBLIC HEALTH
~ LAW CENT ER
at Mitchell H•mlln• Scho<M of Law
/ T
American
Lung Association.

Calitomia
39 See Douglas, supra note 19, at 4.
40 Pot May be Legal in Some States - But the Neighbors Don't Have ta Like It, U.S. NEWS & WORLD REPORT (July 25, 2014), http://www .usnews.com/news/us/articles/20 14/07/25/pot-may-be- legal-but -homeowner -agreements-can-ban. 41 See, e.g., Public Health Law Center, Smoke-free Housing and Rent Abatement (2019), https://www .publichealthlawcenter . org/sites/default/fi les/resources/Smoke-Free-Hous ing-Rent-Abatement -MN-2019.pdf. 42 These laws vary among states as well. In Massachusetts, for example, landlords can prohibit cannabis smoking via a lease agreement , but cannot prohibit the consumption of cannab is edibles or other non-smok ing forms. Mass. Can­ nabis Control Commission, Consumption af Cannabis for Adult Use (last accessed June 5, 2021), https ://mass -canna­ bis-contro l.com/wp-content/uploads/2018/06/Fact-Sheet -Consumption.pdf. They can, however, prohibit the use of non-smoked cannab is if failing to do so would cause the landlord to vio late a federal law or regulation, or if the property is owned by the Commonwea lth, a subdivision of the Commonwealth (e.g., a county, city, or town) , or a state or local government agency. Id. In Rhode Island, no landlord may refuse to lease to, or otherwise penalize, a renter solely because of the renter's status as a medica l cannabis cardholder. The landlord does have the discretion, however, not to lease, or continue to lease, to a card holder who cultivates cannabis in the leased prem ises. R.I. STAT. Title 21, Sec. 27-28. 6-4, http://webserver.rilin .state.ri.us/S tatutes/T ITLE21/21-28.6/21-28.6-4. HTM. 43 Public Health Law Center, Smoke-free Multi-Unit Housing Model Ordinance (2020), https://www.publ ichealthlawcenter. org/sites/defau lt/files/resources/CA-Smoke-free-MUH-Mode l-Ordinance.pdf. 44 Douglas, supra note 19, at 7.
45 Rachel Ann Barry et al., Waiting for the Opportune Moment: The Tobacco Industry and Cannabis Legalization, 92 MILBANK QUARTERLY 207, 208-9 (2074), http://bit.ly/luUpJeb.
46 HUD Notice PIH-2012-25, May 29, 2012 ("This notice strong ly encourages Public Housing Authorities (PHAs) to im­ plemen t non-smoking policies in some or all of their public housing units .... PHAs are permitted and strong ly encour­ aged to implement a non-smoking policy at their discretion, subject to state and local law.") . 47 See Memorandum from Helen R. Kanevsky, Medical Use of Cannabis and Reasonable Accommodation in Federal Public and Assisted Housing 2, Jan. 20, 2017, http://www.scribd.com/doc/47657807/HUD-po licy-Memo-on-Med ical-Canna­ bis- in-Public-Housing#down load.
481d.
49 Id. at 10-11.
50 U.S. Food & Drug Admin., FDA Regulation of Cannabis and Cannabis-Der ived Products: Questions and Answers, http:// www.fda.gov/NewsEvents/PublicHea1thFocus/ucm421168 .htm. 51 See, e.g., U.S. Dep't Housing and Urban Development, Use of Cannabis in Multifamily Assisted Properties (2014), https:// www.hud.gov/sites/documents/USEOFMARIJ INMFASSISTPROPTY.PDF. 52 See Public Health Law Center, Smoke-free Multi -Unit Housing: Equitable Enforcement Strategies (2020), https://www. publichea lth lawcenter.org/s ites/defau lt/files/resources/S F-MUH-E quitab le-Enforcement-Strategies.pdf, 53 Id.
54 U.S. Dep't Hous ing and Urban Development, Medical Cannabis Use in Public Housing and Housing Choice Voucher Programs (Feb. 10, 2011), http://portal.hud.gov/huddoc/med-cannabis.pdf.

July 2021
www.publichealthlawcenter .org/ca ltobacco Regulating Cannabis Smoking in Multi-Unit Housing 13 What is Health Equity?
There is a distinct difference between equality and equity. Equality provides everyone with the same resources, opportunities and support.

However, this does not take individuals' background and circumstances into consideration and may not lead to equal or fair outcomes. Equity evens the playing field by providing individuals' support based on their specific needs and circumstances, leading to fair and equal outcomes. With this distinction in mind, health equity is when every person has the opportunity to "attain his or her full health potential."
How Your Environment
Impacts Your Health
Where you live directly impacts your overall health. For example, living in an area without sidewa lks limits access to safe streets to walk and run. Living with neighbors who smoke can lead to exposure to secondhand smoke and serious health problems. Secondhand smoke contains toxic chemicals that can become embedded in carpets, furniture and walls long after a resident has moved out: this is called thirdhand smoke.
(760) 631-5000 Ext. 7165 I [email protected]
CC
Vista
Community
Clinic northcoastalprevention.org/program/tc
•• © 2021. California Department of Public Health. Funded under contract# 20-10005 D @sdstayinformed
@VCCTobacco
i,QUE ES TENER EQUIDAD EN LA SALUD?
Hay una diferencia clara entre igualdad y equidad. La igualdad !es proporciona a todos los mismos recursos, oportunidades y apoyo . Sin embargo, no toma en cuenta los antecedentes y circunstancias de las personas y puede no conducir a resultados equitativos o justos. La equid ad iguala el campo de juego al proporcionar el apoyo a las personas en funcion de sus necesidades y situaciones espedficas, lo que conduce a resultados mas justos e iguales. Con esta distinci6n en mente , la equidad en la salud es cuando cada persona tiene la oportunidad de "alcanzar todo su potencial de buena salud."

COMO EL AMBIENTE AFECTA SU SALUD
El lugar donde vive afecta directamente su salud en genera l. Por ejemplo, vivir en un area sin banquetas lirnita el acceso a calles seguras para caminar y correr. Vivir con gente que fuma puede exponerlo(a) al humo de segunda mano y problemas de salud graves. El humo de segunda mano contiene sustancias quimicas toxicas que pueden estar en las alfombras, muebles y paredes a tin despues de que un resid ente se haya mudado: esto se
llama humo de tercera mano.

CC
Vista
Community
Clinic
(760) 631-S000 Ext. 716S I [email protected]
northcoastalprevention.org/program/tc
@sdstayinformed
@VCCTobacco
© 2021. Departamento de Salud Publica de California. Financ iado en virtud del contrato 20-10005

SMOKEFREE IS SMOKEFREE
Smoke is smoke-regard less of the device or description. Secondhand marijuana smoke contains hundreds of chem icals-just like secondhand tobacco smoke. Many of the chemicals in secondhand marijuana smoke are toxic and contain hazardous fine particles that pose a significant health risk to non-smokers . • More laws legalizing marijuana= increased exposure to secondhand marijuana smoke and vapor. • Employees & patrons protected by current smokefree laws may have their health put at risk by exposure to marijuana smoke or vapor. Marijuana smoking or vaping shou ld not be allowed in smokefree spaces. • The commercialized marijuana industry looks and sounds a lot like Big Tobacco. Together they are • working to circumvent progress on smokefree air.
• The vast majority of the population are non-smokers. Smokefree means smokefree-no cigarettes and cigars, e-cigarette use, or marijuana smoking or vaping.

SECONDHAND

MARIJUANA SMOKE
contains many of the same CANCER-CAUSING i•
SUBSTANCES and TOXIC CHEMICALS as
secondhand tobacco smoke, including ·.•
00 3times
the amou_nt of
ammonia @
significant levels of mercury,
lead, formaldehyde, benzene,
hydrogen cyanide, & toluene.

PROTECT HEALTH
For more information about
marijuana and smokefree laws, visit
~ no-smoke.org

AMERICAN

NONSMOKERS'

RIGHTS FOUNDATION
2023-07 [FS-52]
SMOKE IS SMOKE:

THE DANGERS OF

SECONDHAND MARIJUANA

SMOKE AND VAPE
\
Since recreational marijuana, also known as cannabis, has been legalized in California, there is an increasing overlap between tobacco, marijuana, and e-cigarette use. 1 As a result, more
people are being exposed to marijuana smoke inside of their homes, especially in an apartment complex.

While research is still evolving around marijuana vape exposure, we do know:
• Both marijuana and cigarettes produce harmful and toxic secondhand smoke associated with adverse cardiovascular effects like hardening and narrowing of the arteries which could lead to heart attack, stroke and cancer:
• Marijuana secondhand smoke contains fine particulate matter than can be breathed deeply into the lungs, which can cause lung irritation, asthma attacks, and makes respiratory infections more frequent .3
• Recent studies have shown that non-smoking individuals exposed to secondhand marijuana smoke not only report feeling the effects of a secondhand high, known as "contact high~" but also have detectable traces of Tetrahydrocannabinol (THC), the active ingredient found in marijuana , in their blood and urine as a result of exposure. 5 86°/o
IU

INCREASE IN

SECONDHAND

MARIJUANA EXPOSURE
IN ADULTS IN 2018
7 UNDERSTANDING

SECONDHAND VAPE
Electronic cigarettes and vaping products
can both be used to deliver nicotine,
cannabis, flavorings, chemicals, and other
substances . Vape is not harmless "water
vapor" but contains dangerous chemicals,
tiny particles of metals and flavorings,
which are all linked to serious health
conditions. People exposed to e-cigarette
aerosol absorb nicotine at levels
com parable to people exposed to cigarette
6 secondhand smoke .
© 2021. California Department of Public Health. Funded under contract # 20-10005 •~ Vista • Community
Clinic

NO SMOKING

NOVAPING
The use of tobacco,
e-cigarettes, and marijuana
is prohibited.

EXTINGUISH MARIJUANA SECONDHAND SMOKE AT HOME
If you live in an apartment or multi-family community, ask your property manager about smoke-free policies.

Having a smoke-free policy that includes electronic smoking devices and marijuana in place can help protect you from unwanted exposure to dangerous secondhand effects of marijuana smoke and vape.

If you are exposed to secondhand smoke or vape, contact:
• Vista Community Clinic for resources.
• Your property manager and/or your neighbors.
• Your local elected officials about creating a citywide smoke-free multi-unit housing policy.

SOURCES

1. Marijuana Prevention Initiative, 2021, https://www.ccrconsu lting.org/mpi

2. Marijuana Secondhand Smoke, 2021. American Nonsmokers' Rights Foundation. https://no-smoke.org/wp-content/uploads/pdf/secondhand-marijuana-smoke.pdf

3. Wang X, Derakhshandeh R, Liu J, et al. One Minute of Marijuana Secondhand Smoke Exposure Substantially Impairs Vascular Endothelial Function. J Am Heart Assoc. 2016;5(8):e003858. Published 2016 Jul 27. doi:10.1161/JAHA.116.003858 (original text found on tobaccofree.com website)

4. 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

5. Cone EJ, Bigelow GE, Herrmann ES, et al. Non-smoker exposure to secondhand cannabis smoke. I. Urine screening and confirmation results. J Anal Toxicol. 2015;39(1) :1-12. doi:10.1093/jat/bku116.

6. E-cigarette or Vaping Product Use-Associated Lung Injury (EVALI) 2019, Yale Medicine. https://www.yalemedic ine.org/conditions/evali

7. Secondhand Dangers, https://tobaccofreeca.com/secondhand-dangers/#smokefree-polic ies

CONTACT INFORMATION
(760) 631-5000 Ext. 7165
[email protected]
.,,..._
W~ northcoastalprevention.org/program/tc @sdstayinformed 0 @VCCTobacco Options for Smoke Free
Housing Ordinance
Mike Strong, Assistant Director of
Community Development
August 22, 2023
1 {city of
Carlsbad

BACKGROUND
• State Legislature adopted several smoke-free air
laws
• City also has some smoke-free air laws:
- No smoking in public parks, trails and beaches
- No smoking near/within outdoor dining area
- Prohibits smoking electronic cigarettes
- Prohibits use of cannabis in public spaces
• ge
2 BACKGROUND CONT’D
• 2021 Housing Element program requires
city to consider adopting a smoke-free
ordinance for multi-family housing
- Program request came from the SDHHSA
3 {city of
Carlsbad

ITEM OVERVIEW
• This is a discussion item only. No final action taken. • Council to provide direction on how to move forward.
• Three options presented in the staff report:
- Option 1 No action.
- Option 2 Draft an ordinance with complete
prohibition.
- Option 3 Draft an ordinance that is tailored.
4 {city of
Carlsbad

MF SMOKE-FREE AIR LAWS
• 79 CA cities have adopted 100% smoke free air
requirements.
• Another 17 have adopted partial prohibitions.
• No cities in the San Diego Region, including
County of San Diego, have adopted smoke free
air laws for multi-family units.
5 OTHER TOOLS
• Property owners and managers can voluntarily
make their properties smoke-free.
• Many lease agreement templates already
provide smoke-free air law policies, which are
privately enforced.
6 RECOMMENDATION
• Provide direction to staff.
7 {city of
Carlsbad