Carlsbad City Council
August 22, 2023

CA Review ___MK___
Meeting Date: Aug. 22, 2023
To: Mayor and City Council
From: Scott Chadwick, City Manager
Staff Contact: Mike Strong, Assistant Community Development Director [email protected], 442-339-2721
Subject: Housing Element Program: Options to Develop a Smoke-Free Multifamily Housing Ordinance
Districts: All
Recommended Action
That the City Council take one of the following actions:

1. Take
no action, thereby maintaining the city’s current smoking regulations; or

2. Direct
staff to develop a complete smoking prohibition in multifamily housing units and outdoor common areas and return to City Council for consideration; or

3. Direct
staff to develop customized smoking prohibitions based on City Council discussion and direction and return to City Council for consideration.

Executive Summary
Every city in California is required to have a current Housing Element in its General Plan. The Housing Element is a plan that provides an analysis of a community’s housing needs for all income levels, along with strategies to respond to and provide for those housing needs. In addition to policies, programs and objectives that encourage housing development, the Housing Element also includes programs that promote safe and healthy living environments. The City Council adopted an update to Carlsbad’s Housing Element in 2021 that included numerous programs the city is required to implement.

Specifically, Program 1.12 directs the city to consider the adoption of a smoke-free ordinance for multifamily housing by December 2023. To fulfill this requirement, the City Council is being asked to consider options to regulate anti-smoking housing environments and provide direction to staff on how to proceed.

The City Council is not required to adopt an ordinance by December 2023; the Housing Element program requires only that the City Council consider this option.

Explanation & Analysis
Background
Every eight years each city in California is required by the state to update its General Plan Housing Element. After a two-year process, on April 6, 2021, the City Council adopted an update to Aug. 22, 2023
Item #9 Page 1 of 22

Carlsbad’s Housing Element, which was certified by the State Department of Housing & Community Development the following July.

The Housing Element includes policies, programs and objectives showing how the city intends to accommodate its share of housing for the state’s current housing cycle, which is from 2021 to 2029. There are about 40 Housing Element programs that are further divided into nearly 160 program objectives. These objectives identify ongoing actions the city must implement throughout the housing period and specific actions the city must timely accomplish.

During the development of the 2021-2029 Housing Element, the city received a letter from Dr.

Wilma Wooten, Public Health Officer and Director of the County of San Diego Health & Human Services Agency, requesting that anti-smoking policies be included in the city’s draft Housing Element (Exhibit 1). When the 2021-2029 Housing Element was presented for decision on April 6, 2021, the City Council considered the county’s request and directed staff to add the following program to the Housing Element:

Program 1.12: Smoke-Fre e Ordinance for Multifamily Housing To reduce secondhand and thirdhand smoke death and disability, consider the adoption of a comprehensive smoke
-fre
e ordinance for multifamily housing
properties that covers all exclusive-us
e areas, both exterior areas (such as private
balconies and decks) and interior unit spaces, as well as common areas not already covered by state law. (Due: December 2023)
Smok
ing regulations – General
California was among the first states to restrict smoking with the adoption of the California Indoor Clean Air Act of 1976, which limited smoking in public areas and mandated nonsmoking areas in hospitals, restaurants and bars. O ver the years, the state Legislature adopted new smoke-free air laws, including banning the consumption of tobacco-related products in all government and private workplaces, public schools, casinos and gaming establishments (except for exempt tribal establishments), retail stores, recreational and cultural facilities and childcare facilities.

In addition to the state smoking prohibitions, t he City of Carlsbad has also enacted the following smoke-free air laws:
• Carlsbad Municipal Code Section 11.32.110, adopted as ordinance No. NS-894 (Exhibit 2) in 2008, prohibits smoking in public parks, trails and beaches • Carlsbad Municipal Code Chapter 6.14, adopted as ordinance No. CS-188 (Exhibit 3) in 2012, prohibits smoking within 20 feet of outdoor dining areas • Carlsbad Municipal Code Chapter 6.18, adopted as ordinance No. CS-237 (Exhibit 4) in 2013, prohibits smoking of electronic cigarettes in any location where the smoking of pipes, cigars or cigarettes is prohibited by any federal, state or local law • Carlsbad Municipal Code Section 8.90.030(D), adopted as part of ordinance No. CS-323 (Exhibit 5) in 2017, prohibits smoking or ingesting cannabis in any public place Smoking regulations – Multifamily housing
As mentioned above, state law already prohibits smoking in most indoor common areas of apartments and condominium complexes, such as a laundry room or lobby areas with mailboxes.

Aug. 22, 2023
Item #9 Page 2 of 22

In 2011, Governor Jerry Brown signed Senate Bill 332 into law, which gave property owners and property managers the right to voluntarily make their properties smoke-free.

With the implementation of Sen ate Bill 332, some cities and counties have implemented policies that require all or part of multifamily housing to be smoke-free regardless of the preference of the property owner/manager. According to a recent report prepared by the American Nonsmokers’ Rights Foundation (Exhibit 6), the different types of laws passed by municipalities throughout the state include:

California municipalities with laws t hat require 100% smokefree in private multi-unit housing:
• 79 prohibit smoking in all rental multi-unit housing properties (existing and new) • 72 prohibit smoking in both rental and owner-occupied multi-unit housing • 68 prohibit smoking in properties with two or more units Municipalities with la ws that partially restrict smoking in multi-unit housing • 17 restrict smoking inside some private units of multifamily housing • These laws often prohibit smoking in all newly occupied buildings or newly leased units, but either do not address smoking in existing buildings or only apply to a certain percentage of units in existing buildings
No municipalities in the San Diego region, including the County of San Diego, have adopted laws that partially or wholly restrict smoking in multi-unit housing.

Fiscal Analysis
Receiving this report has no fiscal impact.

Option 1 does not require additional staff resources or city funding to implement. Options 2 and 3 will require staff time to develop the code amendments.

Implementing a smoke-free multifamily housing ordinance might have resource impacts on city staff time and financial resources depending on the level of enforcement and/or outreach required. Educational materials and sign costs could be paid in part or in whole with grant funding from the Department of Justice, County Public Health Department and/or other public agencies.

Options
The following options were curated from ordinances adopted by other municipalities and can be used to assist the City Council in directing staff on a preferred approach for the City of Carlsbad.

Option 1 – No action. This option would require no additional action and would maintain the city’s current smoking regulations.

Benefits
• A property owner and property manager are still within their rights to make all units they own or manage smoke-free. California Civil Code Section 1947.5 allows landlords to make their properties – including dwelling units, private balconies and patios, and all common areas – 100% smoke-free.
• Personal choice is preserved, and existing and future residents can choose where to reside.

Aug. 22, 2023
Item #9 Page 3 of 22

• Requires less city resources without the need to develop and enforce a new smoke-free multi-family housing ordinance.

Drawbacks
• Does not address the health concerns raised by the County of San Diego Health & Human Service Agency
Option 2 – Direct staff to return to the City Council with a draft ordinance imposing a complete smoking prohibition in multifamily housing units and/or outdoor common areas. This could apply to housing projects with two or more units, rental or ownership interest and existing and new multifamily housing properties.

Benefits
• Conveys the city’s willingness to require and enforce the strongest level of smoke-free air laws for multifamily housing projects.
• Instituting this type of approach does not preclude someone who smokes from living in the building. It simply requires that all tenants abide by the policy while on the property.

Drawbacks
• Extremely difficult to inspect and enforce smoke-free air laws in private areas. Some types of inspections might require consent or an inspection warrant if consent is refused.
• 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.
• Civil Code section 1947.5 requires property owners and property managers to include a provision in their rental agreements to specify the areas on the property where smoking is prohibited. Implementation of this approach would involve coordination with property owners and property managers to amend current leases, which would require additional staff resources and costs to the city.

Option 3 – Direct staff to return to the City Council with a draft ordinance prohibiting smoking only in some areas or some types of multifamily housing. For example, new laws could be developed that:
• Apply to new multifamily housing projects (projects built after a new ordinance is effective) • Require smoke-free housing in large multifamily projects (those with 16 units or more), where there is on-site property management
• Require smoke-free housing in city-assisted affordable multifamily projects • Apply to outdoor common areas and courtyards
• Require a certain percentage of units to be smoke-free • Require smoke-free lease terms
Benefits
• Secondhand smoke has repeatedly been identified as a health hazard. This option would protect the public from nonconsensual exposure to secondhand smoke, while Aug. 22, 2023
Item #9 Page 4 of 22

striking a reasonable balance between the needs of persons who still smoke and the needs of nonsmokers to breathe smoke-free air.
• Instituting this type of approach does not preclude someone who smokes from living in the building. It simply requires that all tenants abide by the policy while on the property.

Drawbacks
• Extremely difficult to inspect and enforce smoke-free air laws in private areas. Some types of inspections might require consent or an inspection warrant if consent is refused.
• If the ordinance lists only some areas or some types of multifamily housing, rather than all multifamily housing (as provided in Option 2), it could be challenging for the Police Department and Code Enforcement Division to enforce.
• Civil Code section 1947.5 requires property owners and property managers to include a lease provision that specifies the areas on the property where smoking is prohibited.

Implementation of this approach would involve coordination with property owners and property managers to amend current leases, which would require additional staff resources and costs to the city.

Next Steps
Community Development staff will implement the direction received from the City Council.

Following City Council direction, staff may return to the City Council with a proposed smoke-free multifamily housing ordinance for the council’s consideration.

Should the City Council direct staff to consider options for a smoke-free multifamily ordinance, targeted outreach and community engagement will take place. The Housing Commission is supportive of the City Council examining multi-family smoke free options and have included a task in their work plan to examine and review ordinance options if the City Council directs staff to bring back options for consideration.

Environmental Evaluation
This is a discussion item only. Under Public Resources Code section 21065, this action does not constitute a project within the meaning of the California Environmental Quality Act in that it has no potential to cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and therefore, does not require environmental review.

Exhibits

1. Letter from the County Health & Human Services Agency, Aug. 3, 2020

2. Ordinance No. NS-894 (on fi le in the Office of the City Clerk)

3. Ordinance No. CS-188 (on fi le in the Office of the City Clerk)

4. Ordinance No. CS-237 ( on file in the Office of the City Clerk)

5. Ordinance No. CS-323 ( on file in the Office of the City Clerk)

6. American Nonsmokers’ Rights Foundation Report, April 1, 2023 Aug. 22, 2023
Item #9 Page 5 of 22

August 3, 2020
TO: Scot t Ch
adwick
City Manager
FROM: Wilma J. Wooten, M.D., M.P.H.,
Public Health Officer & Director, Public Health Services RE: Smoke-Free Hous
ing in Housing Element Update
As the Public Health Officer for the San Diego County, I am contacting you to discuss your City’s mandated housing element update. The update of the housing element is an opportunity to increase health equity by ensuring all residents live in safe and healthy conditions. As the Governor’s Office of Planning and Research has stated, in its recent guidance on environmental justice in general plans, exposure to harmful chemicals from secondhand smoke and its lingering residues (thirdhand smoke) is a threat to safe housing. The U.S. Surgeon General has declared that there is no safe level of exposure to se condhand smoke, which annually causes an estimated 41,000 deaths by people who do not smoke. The risk of harm is most acute in multifamily housing, where drifting smoke from one person can contaminate many living units and is expensive and difficult to clean up.

As you work on updating your housing element, we would ask that you consider incorporating the following language into your goals and policies:

To reduce secondhand and thirdhand smoke death and disability, adopt and enforce a comprehensive smoke-free ordinance for multifamily housing properties that covers all exclusive-use areas, both exterior areas (such as private balconies and decks) and interior unit spaces, as well as common areas not already covered by state law.

Attached is the document, e ntitled Prohibiting Smoking in Multifamily Housing: Model Language and Rationale Statement for Inclusion in General Plan Housing Elements, July 2020. This document explains the rationale for including tobacco elements in general plan housing elements. Also, included for your reference are two information fact sheets, from the California Department of Public Health, on the dangers of secondhand and thirdhand smoke.

Staff from the Public Health Services Tobacco Control Resource Program, in the County of San Diego Health and Human Services Agency, would be happy to discuss opportunities to include tobacco protections in your city’s housing element. For further information of questions, please feel free to contact Parke Troutman at (619) 753-2581 or [email protected] . Additionally, San Diego County

HEALTH AND HUMAN SERVICES AGENCY

PUBLIC HEALTH SERVICES
3851 ROSECRANS STREET, MAIL STOP P-578
SAN DIEGO, CA 92110-3134
(619) 531-5800 • FAX (619) 542-4186

NICK MACCHIONE, FACHE

AGENCY DIRECTOR
WILMA J. WOOTEN, M.D., M.P.H.

PUBLIC HEALTH OFFICER
ATTACHMENT 7A
Exhibit 1
Aug. 22, 2023
Item #9 Page 6 of 22
filnunty nf ~an JEliegn
Smoke-free Housing Letter
August 3, 2020

is a center of research on thirdhand smoke. Staff would be pleased to connect you with leading local scientists if you would like a presentation on the state of current research on this topic.

Sincerely,

WILMA J. WOOTEN, M.D., M.P.H.

Public Health Officer & Director,
Public Health Services

Cc: Helen Robbins-Meyer, County of San Diego, Chief Administrative Officer Nick Macchione, County of San Diego, Health and Human Services Agency, Agency Director Aug. 22, 2023
Item #9 Page 7 of 22

Prohibiting Smoking in Multifamily Housing
Model Language and Rationale Statement for Inclusion in General Plan Housing Elements

August 2020

Model Language for a Housing Element Policy
To reduce secondhand and thirdhand smoke death and disability, adopt and enforce a comprehensive smoke-free ordinance for multifamily housing properties that covers all exclusive-use areas, both exterior areas (such as private balconies and decks) and interior unit spaces, as well as common areas not already covered by state law.

Rationale for Prevention of Secondhand and Thirdhand Smoke Death in the San Diego region is heavily influenced by a pattern known as 3-4-50: three preventable behaviors (tobacco use, poor diet, and lack of physical activity) —cause four chronic diseases (cancer, heart disease & stroke, type 2 diabetes, and lung diseases)—that result in over 50% of deaths in the San Diego region.

Eliminating exposure to secondhand and thirdhand smoke in multifamily housing is central to reversing the impact of 3-4-50:

1. Compared to other preventable causes of death, tobacco is unparalleled in its destruction. The Centers for Disease Control and Prevention estimates that every year 480,000 Americans die prematurely from cigarettes. Of all deaths in San Diego County, 19.6 percent are linked to smoking -related diseases (County of San Diego Community Health Statistics Unit).

2. Tobacco use disproportionately affects disadvantaged groups:
 African American/Black versus White (20.7% vs. 13.0%)  Those with less than a high school education versus a bachelor’s degree (16.3% vs. 7.2%)  Those living below the federal poverty level versus incomes triple that level (17.8% vs. 7.2%)  Renters versus homeowners (16.5% vs. 8.8%) (California Department of Public Health, 2018)

3. Almost half a million Americans die annually due to cigarette smoking. Approximately 41,000 deaths are attributed to secondhand smoke. This includes infants, who face increased risk of Sudden Infant Death Syndrome as a result of secondhand smoke.

4. According to the U.S. Surgeon General, there is no safe level of exposure to secondhand smoke and eliminating indoor smoking is the only way to protect nonsmokers from the harmful effects of secondhand smoke exposure (U.S. Department of Health and Human Services, 2006).

5. Research has shown that secondhand smoke can drift from unit to unit through windows, doors, walls, hallways, and air ducts of multifamily housing.

6. The home is the main place where children are exposed to secondhand smoke ( U.S. Department of Health and Human Services, 2015 ). Two in five children are exposed to secondhand smoke in rental housing (U.S. Department of Health and Human Services, 2015), with higher exposure even if no one smokes inside their apartment (Wilson, Klein, Blumkin, Gottlieb, Winickoff, 2011).

7. Research has confirmed the common experience that indoor smoke-free areas located near outdoor smoking areas have higher levels of smoke particulate matter than smoke-free indoor areas that were farther away (Sureda, Fernández, López, Nebot, 2013).

Aug. 22, 2023
Item #9 Page 8 of 22

COUNTY OF SAN DIEGO

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LIVE WELL

8. Secondhand smoke becomes thirdhand smoke. Tobacco smoke does not completely disappear , but rather it leaves an unpleasant-smelling residue that sticks to all surfaces, including walls, furniture, and floors as well as pets ’ and people’s hair, skin, and clothing. Over time, the residue grows more poisonous and is slowly released back into the air.
 Young c hildren are disproportionately exposed because “they spend relatively more time indoors; they engage in activities close to the floor; they have hand-to-mouth behaviours; and they are more vulnerable to chemical exposure because of their immature metabolis m.” (Ramirez, et al., 2014, p. 142) People who live in apartments are at higher risk for thirdhand smoke exposure because of smoking by previous tenants. O ne person smoking can affect future tenants, not just in the unit they occupied but in others as well, as secondhand smoke can travel through ducts, windows, and walls before settling onto surfaces.  Eliminating thirdhand smoke dramatically increases the cost for a landlord preparing a unit for new tenants, easily tripling the costs (Property Management Insider). This means higher rents, less maintenance elsewher e on the property or , if not aggressively eliminated, new residents exposed to toxic residues.

9. Smoking is the leading cause of home fire deaths, including 35 % of multifamily fire deaths ( Ahrens, 2018).

The importance of protecting people who live in multifamily housing from the dangers of secondhand and thirdhand smoke is increasingly being recognized. The U.S. Department of Housing and Urban Development (HUD), as of July 2018, prohibits smoking in HUD-funded public housing buildings, with a 25-foot buffer from all indoor areas. As of February 2019, 101 jurisdictions in California had enacted ordinances to limit smoking in multifamily housing (The Center for Tobacco Policy & Organizing, 2019).

The Governor’s Office of Planning and Research (OPR) recent guidance on environmental justice law, which was in part inspired by National City’s general plan, acknowledges the harms of smoking:
“Diseases such as asthma, birth defects, cancer, heart disease, neurologic disorders, and reproductive disorders can be linked to pollution in the environment. Involuntary exposure to pollution such as second- hand and third- hand smoke , are also known to con tribute or exacerbate symptoms to many of these diseases and illnesses.” OPR’s guidance encourages consideration of many policies to curb exposure to tobacco and smoking, including noting that:
“…energy efficiency measures or other green building measures, in conjunction with smoke - free multi -unit housing policies, can improve indoor air quality in both new and existing housing, which can reduce respiratory illness such as asthma.” For San Diego cities , the current housing element update cycle is a once-in-eight-years opportunity to begin working towards the elimination of the dangers of secondhand and thirdhand smoke in residential settings.

For additional information, please contact Parke Troutman in the County of San Diego Tobacco Control Resource Program at (619) 753-2581 or [email protected].

This work is part of Live Well San Diego: Healthy Works and is implemented by County of San Diego Health and Human Services Agency in support of a region that is Building Better Health, Living Safely, and Thriving. For more information, visit www.LiveWellSD.org . © 2020. California Department of Public Health. Funded under contract # CTCP-17-37.

Aug. 22, 2023
Item #9 Page 9 of 22
Secondhand smoke (SHS) consists of smoke from a burning tobacco product and the smoke exhaled by a smoker. It is a toxic substance that causes serious health problems for non-smokers. 1 Many people who live in public housing are especially affected by SHS.2 This includes children, the elderly, and people with disabilities. 2 The United States Environmental
Protection Agency classifies SHS as a
cancer-causing agent .
1 It contains hundreds of toxic
chemicals including formaldehyde,
arsenic, and hydrogen cyanide.
1 There is no safe level of exposure to SHS.1
Health Risks
Breathing SHS causes serious health problems for children and adults.

Children exposed to SHS are more likely to suffer from:
• Sudden infant death syndrome (SIDS)1
• Bronchitis and pneumonia 1
• Ear infections 1
• Asthma attacks 1
Adults exposed to SHS are
more likely to develop:
• Lung cancer 1
• Heart disease & stroke 1
• Breathing problems 1
41 ,000
Approximately 41,000
nonsmoking adults die every
year from SHS exposure in the
United States.
3 61%
©2017. California Department of Public Health, California Tobacco Control Program.

Support for Smoke-free Housing
California renters support smoke-free housing restrictions to protect themselves and their families:
61% of renters support smoking bans
inside units.
4 69% of renters support smoking bans
in outdoor common areas.
4 More than one in three nonsmokers who
live in rental housing are exposed to SHS.
2 Two in five children (including seven in
ten black children) are exposed to SHS.
2 Who is at risk?
1in 3
2in5
Secondhand Smoke at Home
The home is the main place where
children are exposed to SHS.
2 SHS can drift into units through
windows, doors, walls, hallways,
and air ducts.
2 Secondhand Smoke in Multi-unit Housing
69%
Aug. 22, 2023
Item #9 Page 10 of 22
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California P Ith PublicHea
References: Secondhand Smoke in Multi-Unit Housing
1 U.S. Department of Health and Human Services. The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General. U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, 2006. Available from: http://www.cdc.gov/tobacco/data_statistics/sgr/2006/pdfs/ 6major-conclusions.pdf.
2 U.S. Department of Health and Human Services. Centers for Disease Control and Prevention. Secondhand Smoke:

An Unequal Danger, 2015. Available from: https://www.cdc.gov/vitalsigns/pdf/2015-02-vitalsigns.pdf. 3 Centers for Disease Control and Prevention. Tobacco Related Mortality, Updated August 2015. Available from:
https://www.cdc.gov/tobacco/data_statistics/fact_sheets/health_effects/tobacco_related_mortality. 4 Goodwin, Paul. Goodwin Simon Strategic Research. Summary of 12-County Survey for the Lung Association. 2014.

Aug. 22, 2023
Item #9 Page 11 of 22
Thirdhand Smoke in Multi-unit Housing
Thirdhand smoke (THS) is tobacco smoke residue that is left behind when someone smokes indoors. The smoke does
not simply blow away. Instead it sticks to surfaces such as walls, furniture and floors as well as to a person’s hair, skin and clothing.

This toxic residue builds up over time and can
remain for years.1
©2017. California Department of Public Health, California Tobacco Control Program.

Health Risks
THS poses a unique health risk because
the residue reacts with air to make
additional pollutants and re-emits
from surfaces back into the air.
1 THS changes over time and becomes
progressively more toxic.
1,2
Long-term exposure to the
pollutants in THS has been shown to
damage human cells and DNA ,
and may be associated with short-
and long-term health problems such
as asthma and cancer.
1,3
Who is most vulnerable?
Anyone who lives in a home where smoking is allowed is
more likely to be exposed to THS.
2 Infants and children may be exposed to THS when they crawl or play on the floor.
1 Babies may ingest the chemicals
in THS when they put toys or
household objects in their mouth.
1 Children’s growing bodies make
them more vulnerable to THS than adults.
1 Exposure in Multi-Unit Housing
People who live in apartments are at higher risk for
THS exposure because previous tenants may have smoked
indoors.
4 Children who live in apartments show a higher level of exposure to tobacco chemicals.
4 In places where substantial smoking has occurred,
renovations such as replacing wall boards and
furnishings may be necessary to reduce levels of THS.
5 How Smoke-free Housing Policies Can Help
Policies that prevent smoking in units and common areas will help protect tenants from THS exposure.

Smoke-free policies will also reduce the problems of
cleaning and repairing units
damaged by THS residue.

Common cleaning
methods will not
remove thirdhand
smoke.
4 © 2014 CDPH
Aug. 22, 2023
Item #9 Page 12 of 22
~
~ ~~RH
PublicHealth
References: Thirdhand Smoke in Multi-Unit Housing

1. Jacob, P., et al., Thirdhand Smoke: New Evidence, Challenges, and Future Directions. Chemical Research in Toxicology, 2016.

2. Martins-Green, M., et al., Cigarette smoke toxins deposited on surfaces: implications for human health. PLoS One, 2014. 9(1): p. e86391.

3. Hang, B., et al., Thirdhand smoke causes DNA damage in human cells. Mutagenesis, 2013. 28(4): p. 381-91.

4. Matt, G., et al., Thirdhand tobacco smoke: emerging evidence and arguments for a multi-disciplinary research agenda. Environmental Health Perspectives, 2011: p. 119(9): 1218-26.

5. Bahl, V., et al., Thirdhand cigarette smoke: factors affecting exposure and remediation. PLoS One, 2014. 9(10): p. e108258.

Aug. 22, 2023
Item #9 Page 13 of 22
Exhibit 2

Ordinance No. NS-894
(on file in the Office of the City Clerk)

Aug. 22, 2023
Item #9 Page 14 of 22
Exhibit 3

Ordinance No. CS-188
(on file in the Office of the City Clerk)

Aug. 22, 2023
Item #9 Page 15 of 22
Exhibit 4

Ordinance No. CS-237
(on file in the Office of the City Clerk)

Aug. 22, 2023
Item #9 Page 16 of 22
Exhibit 5

Ordinance No. CS-323
(on file in the Office of the City Clerk)

Aug. 22, 2023
Item #9 Page 17 of 22
2530 San Pablo Avenue, Suite J, Berkeley, CA 94702 | 510.841.3032 | 510.841.3071 Fax | no-smoke.org | [email protected] ANRF is a 501c3 nonprofit organization and donations are tax deductible | Tax ID #94-2922136 U.S. Laws for 100% Smokefree Multi-Unit Housing
April 1, 2023
This list represents communities with laws that regulate smoking in private units of multi-unit housing.

As of January 1, 79 municipalities have enacted a law at the city or county level that prohibits smoking in 100% of private units of rental multi-unit housing properties. Of these municipalities, 72 have laws that prohibits smoking in 100% of private units of both rental and owner-occupied multi-unit housing properties.

The vast majority of the laws—68 municipalities—apply to properties with 2 or more units.

For public housing policies, see U.S. Public Housing Authority Policies Restricting or Prohibiting Smoking.

See Definitions and Explanatory Notes starting on page 4.

Visit our smokefree multi-unit housing page at no-smoke.org/at-risk-places/homes/ for more information.

Municipalities with Laws for 100% Smokefree Multi-Unit Housing:

This table represents communities that have municipal laws at the city or county level that prohibit smoking in 100% of private units of all specified types of multi-unit housing. These laws apply to both privately-owned and publicly-owned multi-unit residences, as well as all existing and future buildings, and do not permit current residents to continue smoking in the building (i.e. no “grandfather” clause). Most, but not all, municipal laws include condominiums and other owner-occupied properties.

Municipalities marked with # require multi-unit buildings to be 100% smokefree when the law is in full effect as of the listed Final Effective Date. Municipalities marked Some under “% of Units Currently Smokefree” will be 100% when the law is in full effect.

Municipality State
% of Units
Currently
Smokefree
Final Effective
Date
Minimum
Number of
Units
Includes
Patio/
Balcony
Includes
Condos

1. Alameda CA 100% 1/1/2013 2 Yes Yes

2. Alameda County CA 100% 7/1/2022 2 Yes Yes

3. Albany CA 100% 3/24/2018 2 Yes Yes

4. Bell Gardens CA 100% 6/1/2021 3 Yes Yes

5. Belmont CA 100% 1/8/2009 2 Yes Yes

6. Belvedere CA 100% 11/9/2017 2 Yes Yes

7. Benicia CA 100% 9/2/2020 2 Yes Yes

8. Berkeley CA 100% 5/1/2014 2 Yes Yes

9. Beverley Hills CA 100% 1/1/2019 2 Yes Yes

10. Brisbane CA 100% 6/3/2017 2 Yes Yes

11. Burlingame CA 100% 2/13/2016 2 Yes Yes

12. Clayton CA 100% 5/1/2019 2 Yes Yes

13. Compton CA 100% 1/1/2013 3 Yes Yes

14. Concord CA 100% 1/1/2021 2 Yes Yes

15. Contra Costa County CA 100% 7/1/2019 2 Yes Yes

16. Corte Madera CA 100% 6/17/2022 2 Yes Yes

17. Cotati CA 100% 1/1/2017 2 Yes Yes
Exhibit 6
Aug. 22, 2023
Item #9 Page 18 of 22

Municipality State
% of Units
Currently
Smokefree
Final Effective
Date
Minimum
Number of
Units
Includes
Patio/
Balcony
Includes
Condos

18. Crescent City CA 100% 1/1/2022 2 Yes Yes

19. Cudahy CA 100% 1/3/2020 2 Yes Yes

20. Culver City CA 100% 5/26/2016 2 Yes Yes

21. Cupertino CA 100% 10/1/2021 2 Yes Yes

22. Daly City CA 100% 1/21/2014 2 Yes No

23. Danville CA 100% 5/1/2016 3 Yes Yes

24. El Cerrito CA 100% 10/1/2015 2 Yes Yes

25. El Monte CA 100% 8/19/2017 3 Yes Yes

26. Emeryville CA 100% 7/1/2019 2 N/S Yes

27. Firebaugh CA 100% 7/1/2019 2 Yes Yes

28. Foster City CA 100% 11/5/2015 N/S Yes Yes

29. Fresno CA 100% 1/1/2022 2 No No

30. Guadalupe CA 100% 8/27/2020 2 Yes Yes

31. Half Moon Bay CA 100% 1/15/2020 2 Yes Yes

32. Healdsburg CA 100% 5/6/2020 2 N/S Yes

33. Hercules CA 100% 6/13/2020 10 Yes Yes

34. Huntington Park CA 100% 7/1/2013 2 Yes Yes

35. Larkspur CA 100% 9/17/2022 2 Yes Yes

36. Los Gatos CA 100% 6/25/2017 2 Yes No

37. Manhattan Beach CA 100% 5/5/2017 3 Yes Yes

38. Marin County CA 100% 10/14/2021 2 Yes Yes

39. Mill Valley CA 100% 11/18/2016 2 Yes Yes

40. Millbrae CA 100% 1/1/2020 2 Yes Yes

41. Milpitas CA 100% 1/1/2022 2 Yes Yes

42. Monte Sereno CA 100% 10/1/2020 2 Yes Yes

43. Moorpark CA 100% 2/1/2019 2 Yes No

44. Morro Bay CA 100% 8/1/2020 2 Yes Yes

45. Mountain View CA 100% 1/1/2022 3 Yes Yes

46. Novato CA 100% 1/1/2018 2 Yes Yes

47. Pacific Grove CA 100% 10/1/2021 2 Yes Yes

48. Pacifica CA 100% 10/9/2020 2 Yes Yes

49. Palo Alto CA 100% 1/1/2018 2 Yes Yes

50. Pasadena CA 100% 1/1/2013 2 Yes Yes

51. Petaluma CA 100% 1/1/2014 2 Yes Yes

52. Pinole CA 100% 10/18/2019 2 Yes Yes

53. Pleasanton CA 100% 10/4/2018 2 Yes No

54. Rancho Cordova CA 100% 11/4/2021 2 N/S Yes

55. Redwood City CA 100% 1/1/2019 2 Yes Yes

56. Richmond CA 100% 1/1/2011 2 Yes Yes

57. Rohnert Park CA 100% 4/23/2018 2 Yes Yes

58. Ross CA 100% 2/9/2020 2 Yes Yes

59. San Anselmo CA 100% 1/8/2016 2 Yes Yes

60. San Bruno CA 100% 2/22/2018 2 Yes Yes

61. San Carlos CA 100% 7/8/2020 2 Yes Yes

62. San Mateo CA 100% 11/14/2015 2 Yes Yes

63. San Mateo County CA 100% 2/4/2016 2 Yes Yes

64. San Pablo CA 100% 7/1/2021 2 Yes No

65. San Rafael CA 100% 11/14/2013 3 Yes Yes
Aug. 22, 2023
Item #9 Page 19 of 22

Municipality State
% of Units
Currently
Smokefree
Final Effective
Date
Minimum
Number of
Units
Includes
Patio/
Balcony
Includes
Condos

66. Santa Clara CA 100% 8/1/2019 2 Yes Yes

67. Santa Clara County CA 100% 2/9/2012 2 Yes Yes

68. Santa Rosa CA 100% 8/7/2016 2 Yes Yes

69. Saratoga CA 100% 9/16/2016 4 Yes Yes

70. Sebastopol CA 100% 11/2/2011 2 Yes Yes

71. Sonoma CA 100% 12/12/2016 2 Yes Yes

72. Sonoma County CA 100% 1/12/2013 2 Yes Yes

73. South San Francisco CA 100% 11/9/2017 2 N/S Yes

74. Sunnyvale CA 100% 9/23/2016 2 Yes Yes

75. Tiburon CA 100% 10/16/2018 4 Yes Yes

76. Union City CA 100% 2/23/2012 2 Yes No

77. Vallejo CA 100% 9/21/2022 2 Yes Yes

78. Walnut Creek CA 100% 1/30/2014 2 Yes Yes

79. Windsor CA 100% 8/15/2017 2 Yes Yes
# = Law requires multi-unit buildings to be 100% smokefree, but the law is not yet fully in effect.

Municipalities with Laws that Partially Restrict Smoking in Multi-Unit Housing:

This table represents communities that have municipal laws at the city or county level that restrict smoking in some private units of multi-unit housing, but do not require multi-unit buildings to be 100% smokefree.

The trend is now for communities to adopt laws that require multi-unit properties to be 100% smokefree, as listed in the chart above. It is not recommended that communities adopt the types of partial laws represented in the chart below.

Municipalities marked Some under “All Units Currently Smokefree?” have some buildings that are required to be 100% smokefree. Often, these laws prohibit smoking in all newly occupied buildings or newly leased units, but either do not address smoking in existing buildings or only apply to a certain percent of units in existing buildings.

Municipalities marked No under “All Units Currently Smokefree?” have no buildings required to be 100% smokefree now or in the future. These laws may apply to only a certain percent of units in existing and future buildings, or permit current residents to continue smoking in the building indefinitely (a “grandfather” clause).

Additionally, communities not represented on this list may have local laws that do not address smoking in private units, but restrict smoking in multi-unit housing to a lesser extent, such as by prohibiting smoking in indoor common areas or only on patios and balconies.

Municipality State
All Units
Currently
Smokefree?
Min. % of
Units
Currently
Smokefree
Initial
Effective
Date
Final
Effective Date
Min. #
of Units
Includes
Condos

1. Baldwin Park CA Some 100% new/
80% existing 6/21/2012 12/2/2014 2 Yes

2. Burbank CA No N/S 5/1/2011 5/1/2011 N/S Yes

3. Calabasas CA No 80% 1/1/2012 Not Specified 2 No

4. Dublin CA No 75% 1/1/2011 1/1/2013 16 N/S
Aug. 22, 2023
Item #9 Page 20 of 22

Municipality State
All Units
Currently
Smokefree?
Min. % of
Units
Currently
Smokefree
Initial
Effective
Date
Final
Effective Date
Min. #
of Units
Includes
Condos

5. Fairfax CA No 75% 9/1/2012 9/1/2012 4 N/S

6. Fremont CA Some 100% new/
0% existing 2/1/2017 Not Specified 2 Yes

7. Glendale CA Some 100% new/
0% existing 6/27/2013 Not Specified 2 Yes

8. Jurupa Valley CA Some
100% new/
designated
existing units
3/6/2021 Not Specified 3 No

9. Lafayette CA Some 100% new/
0% existing 2/10/2014 Not Specified 3 Yes

10. Loma Linda CA No 70% 1/1/2012 Not Specified 2 No

11. Oakley CA No 100% new/
0% existing 4/1/2014 4/1/2014 2 Yes

12. Pleasant Hill CA Some 100% new/
50% existing 5/5/2010 Not Specified 4 No

13. Santa Monica CA Some
100% new/
designated
existing units
11/22/2012 Not Specified N/S Yes

14. Sausalito CA Some 100% new/
80% existing 2/27/2014 Not Specified 2 Yes

15. South Pasadena CA Some 100% new/
80% existing 3/3/2011 Not Specified 2 Yes

16. Temecula CA No 25% 6/7/2012 10 N/S

17. West Hollywood CA Some 100% new/
0% existing 5/19/2021 7/15/2021 3 Yes

Definitions and Explanatory Notes:

Communities on the two charts of municipal laws adopted a municipal ordinance to regulate smoking in all (first chart) or some (second chart) types of multi-unit housing.

# = Law will require all multi-unit buildings to be 100% smokefree as of a future date, but currently the law provides partial coverage.

Minimum Percent of Units Currently Smokefree:

The percent of specified multi-unit housing that is currently required to be smokefree:

100%: All units in specified multi-unit housing must be smokefree.

Another stated %: The stated percent of units in specified multi-unit housing must be smokefree.

N/S = Not Specified: The law does not specify the percent of units currently required to be smokefree or the percent of units currently required to be smokefree cannot determined by how the law is written, such as: applying only to new multi-unit buildings but not to existing multi-unit buildings or designating at certain percentage of units as nonsmoking or limiting smoking to certain buildings or permitting current residents to continue to smoke indefinitely.

Initial Effective Date:

Aug. 22, 2023
Item #9 Page 21 of 22

The date when some multi-unit housing must be 100% smokefree. For example, Baldwin Park, CA (marked as Some for All Units Currently Smokefree) requires that all newly occupied buildings must be 100% smokefree as of 6/21/2012, which is the Initial Effective Date. Baldwin Park also requires that at least 80% of units in all existing buildings be smokefree. Because existing buildings may never be fully smokefree, the Final Effective Date is “Not Specified.”

Final Effective Date:

For communities marked as Yes or Some for All Units Currently Smokefree, the Final Effective Date is when all buildings must be 100% smokefree. For communities marked as No for All Units Currently Smokefree, the Final Effective Date is when the strongest provisions of the law goes into effect.

Not Specified:

The law does not specify when all multi-unit buildings must be completely smokefree, due to provisions such as: law permits current residents to continue smoking indefinitely or law applies only to newly constructed buildings or law applies only to a certain percent of existing units.

ANR Foundation is actively collecting additional laws. If you know of local laws that you think should be included on the list, or want to inquire about additional information on particular laws, please contact the ANR Foundation at [email protected] or 510-841-3032.

May be reprinted with appropriate credit to the American Nonsmokers’ Rights Foundation. © Copyright 1998 – 2023 American Nonsmokers’ Rights Foundation. All rights reserved.

[LS-41]
Aug. 22, 2023
Item #9 Page 22 of 22
From: Michelle Chizhevsky
To: City Clerk
Subject: Agenda Item #9
Date: Monday, August 21, 2023 9:31:13 PM
It is essential that we protect the health of children and get smoking out of their homes! Smoking is toxic and secondhand smoke hurts everyone around the smoker, even through walls.

Please vote yes for Option 2 and completely ban smoking and vaping in multi-family housing and common areas in Carlsbad.

CAUTION: Do not open attachments or click on links unless you recognize the sender and know the content is safe.

All Receive - Agenda Item #__9__
For the Information of the:

CITY COUNCIL
Date: 08/22/23 CA__X__ CC_X__
CM__X_ ACM_X__ DCM (3) _X___
From: Vanessa Forsythe
To: City Clerk; Teresa Acosta; Keith Blackburn; Melanie Burkholder; Priya Bhat-Patel; Carolyn Luna Subject: 8/22/2023 Agenda Item # 9
Date: Tuesday, August 22, 2023 7:55:42 AM
Attachments: Activity7-5_MatrixSFMUHPolicies_April2021.pdf ca-smokefree-ordinance-multi-unit.pdf
CA-Smoke-free-MUH-Model-Ordinance.pdf
Dear Honorable Mayor Blackburn and City Council Members:

Regarding Agenda Item #9 I ask for adoption of proposal #2 with a motion that directs staff to draft an ordinance imposing a complete smoking prohibition in multifamily housing units and/or outdoor common areas. This would apply to housing projects with two or more units, rental or ownership interest and existing and new multifamily housing properties.

Please consider the following:

1. This is consistent with San Diego County Public Health Officer Dr. Wilma Wooten's "request for the City of Carlsbad: To reduce secondhand and third hand smoke death and disability, adopt and enforce a comprehensive smoke-free ordinance for multifamily housing properties that covers all exclusive-use areas, both exterior areas (such as private balconies and decks) and interior unit spaces, as well as common areas not already covered by state law." ( letter from SD Co Hlth and Human Svc Agency Aug 3, 2020)

2. We now understand the health impact of 2nd and 3rd hand smoke. These health risks associated with smokers: asthma, coronary heart disease, stroke, lung cancer, and premature birth and sudden infant death are also associated with those exposed to 2nd and 3rd hand smoke.(https://www.cdc.gov/tobacco/secondhand-smoke/about.html )

3. 98 California municipalities have enacted ordinances that regulate smoking in private units of multi-unit housing (MUH):** The 98 municipalities that regulate smoking in private units of multi-unit housing to some extent cover 6,290,771 Californians, or

15.9% of the state population.** The 45 municipalities with the strongest multi-unit housing laws cover 2,396,008 Californians, or 6.1% of the state population. (see attachment MatrixSFMUHPolicies).

4. While some Carlsbad multi-unit housing property owners choose to not allow smoking of tobacco, marijuana or vaping without a city ordinance enforcement measures may be difficult.

I have attached references about ordinances as well as information that can be used to educate the public - including this brief informative video.
https://www.youtube.com/watch?v=j21hKUAex7A
Thank you for your consideration
Vanessa
Vanessa Forsythe RN MSN
2177 Vista La Nisa
Carlsbad CA 92009
She/Her
California Nurses for Environmental Health & Justice
Leadership Council
CleanEarth4Kids
Board Member
CAUTION: Do not open attachments or click on links unless you recognize the sender and know the content is safe.
1 Matrix of Smokefree Multi-Unit Housing Policies in California As of April 1, 2021
California municipalities are at the forefront of expanding smokefree air protections by adopting policies that regulate smoking in multi-unit housing in order to create healthier living environments for residents by reducing exposure to drifting secondhand smoke.

This matrix provides an overview of key policy provisions in the municipalities that have enacted ordinances that at a minimum regulate smoking in private units of multi-unit housing. Municipalities not included in this matrix may have policies that regulate smoking in multi-unit housing to a lesser extent than in private units, such as by prohibiting smoking only in indoor common areas or only on patios and balconies.

As of April 1, 2021: 84 California municipalities have enacted ordinances that regulate smoking in private units of multi-unit housing (MUH):
 35 municipalities require all MUH properties with 2 or more units to be 100% smokefree indoors—both rental units and condominium/owner-occupied units—and including e-cigarette use and marijuana smoking/vaping. The names of municipalities with these strongest policies are in bold.
 49 municipalities require all MUH properties with 2 or more units to be 100% smokefree indoors for tobacco—both rental units and condominium/owner-occupied units—but do not fully include e-cigarette use and/or marijuana smoking/vaping in the policy.  6 municipalities require all rental MUH properties with 2 or more units to be 100% smokefree indoors but exempt some or all condominium/owner-occupied units.
 16 municipalities have partial policies that require some, but not all, units or buildings to be smokefree, or contain other exemptions such as allowing existing residents to continue smoking in their unit. These weaker, partial policies are in blue text.

See Definitions and Explanatory Notes starting on page 8.

PETS

POLICY EVALUATION

TRACKING SYSTEM ANRF

AMERICAN

NONSMOKERS'

RIGHTS FOUNDATION
2 Policy Provisions
Municipality County
Most
Recent

Enactment
Date
Effective Date
(phase-in time) Population Minimum
# of Units
% of Units
Smokefree
Exempts
Existing
Residents
Includes
Condos
Includes
E-Cigarette
Use
Includes
Smoking/
Vaping
Marijuana
Alameda Alameda 11/15/2011 1/1/2013
(13.5 months) 43,368 2 100% No Yes Yes Yes
Albany Alameda 2/21/2017 3/24/2018
(13 months) 10,408 2 100% No Yes Yes Yes
Baldwin Park Los Angeles 11/2/2011
6/21/12 new,
12/2/14 existing
(3 years)
37,964 2 100% new,
80% existing No Yes Yes Smoking
Prohibited
Bell Gardens # Los Angeles 10/14/2019 6/1/2021
(20 months) 42,641 3 100% No Yes Yes Yes
Belmont San Mateo 10/9/2007 1/8/2009
(15 months) 27,110 2 100% No Yes Yes Yes
Belvedere Marin 10/10/2016 11/9/2017
(13 months) 2,098 2 100% No Yes Yes Yes
Benicia Solano 12/3/2019 9/2/2020
(9 months) 28,088 2 100% No Yes Yes Yes
Berkeley Alameda 12/17/2013 5/1/2014
(4.5 months) 66,607 2 100% No Yes Yes Medical Use
Exempt
Beverley Hills Los Angeles 10/3/2017 1/1/2019
(15 months) 17,680 2 100% No Yes Yes Vaping
Prohibited
Brisbane San Mateo 11/3/2016 6/3/2017
(6.5 months) 4,692 2 100% No Yes Yes Medical Use
Exempt
Burlingame San Mateo 8/17/2015 2/13/2016
(6 months) 30,459 2 100% No No No (Not
Addressed)
Medical Use
Exempt
Calabasas Los Angeles 1/16/2008 1/1/2012
(4 years) 24,077 2 80% Yes No Yes Yes
Clayton Contra Costa 5/1/2018 5/1/2019
(12 months) 6,034 2 100% No Yes Yes Yes
Compton Los Angeles 10/25/2011 1/1/2013
(14 months) 97,301 3 100% No Yes Yes Yes
Concord Contra Costa 1/7/2020 1/1/2021 128,758 2 100% No Yes Yes Yes 3 Policy Provisions
Municipality County
Most
Recent

Enactment
Date
Effective Date
(phase-in time) Population Minimum
# of Units
% of Units
Smokefree
Exempts
Existing
Residents
Includes
Condos
Includes
E-Cigarette
Use
Includes
Smoking/
Vaping
Marijuana
(12 months)
Contra Costa
County^ 3/13/2018 7/1/2019
(15.5 months) 90,904 2 100% No Yes Yes Yes
Corte Madera Marin 5/6/2014
12/2/14 new;
6/5/15 existing
(13 months)
9,866 2 100% new,
80% existing No Yes Yes Medical Use
Exempt
Cotati Sonoma 10/13/2015 1/1/2017
(14.5 months) 7,470 2 100% No Yes Yes Medical Use
Exempt
Crescent City Del Norte 11/16/2020
1/1/21 new;
1/1/22 existing
(14 months)
6,681 2 100% No Yes Yes Yes
Culver City Los Angeles 10/27/2014 5/26/2016
(19 months) 39,295 2 100% No Yes Specifically
Exempt
Smoking
Prohibited
Daly City San Mateo 10/22/2012 1/21/2014
(15 months) 106,638 2 100% No No Yes Yes
Danville Contra Costa 11/17/2015 5/1/2016
(5.5 months) 21,418 3 100% No Yes Yes Yes
Dublin Alameda 7/19/2011 1/1/2013
(17.5 months) 31,239 16 75% No No Yes Yes
El Cerrito Contra Costa 10/7/2014 10/1/2015
(12 months) 13,691 2 100% No Yes Yes Yes
El Monte Los Angeles 1/19/2016 8/19/2017
(19 months) 115,669 3 100% No Yes Yes Medical Use
Exempt
Emeryville Alameda 9/17/2018 7/1/2019
(9.5 months) 7,868 2 100% No Yes Yes Yes
Fairfax Marin 6/1/2011 9/1/2012
(15 months) 7,591 4 75% No No Yes Yes
Firebaugh Fresno 5/20/2019 7/1/2019
(1.5 months) 3,746 2 100% No Yes Yes Yes
Foster City San Mateo 11/17/2014 11/5/2015 33,784 N/S 100% No Yes Yes Yes 4 Policy Provisions
Municipality County
Most
Recent

Enactment
Date
Effective Date
(phase-in time) Population Minimum
# of Units
% of Units
Smokefree
Exempts
Existing
Residents
Includes
Condos
Includes
E-Cigarette
Use
Includes
Smoking/
Vaping
Marijuana
(11.5 months)
Fremont Alameda 12/6/2016 2/1/2017
(2 months) 123,343 2 100% new,
0% existing No Yes Yes Yes
Glendale Los Angeles 5/28/2013 6/27/2013
(1 month) 200,372 2 100% new,
0% existing No Yes No (Not
Addressed) Yes
Half Moon Bay San Mateo 10/16/2018 1/15/2020
(15 months) 12,706 2 100% No Yes Yes
Medical
Vaping
Exempt
Healdsburg Sonoma 5/6/2019 5/6/2020
(12 months) 11,802 2 100% No Yes Yes Yes
Hercules Contra Costa 5/14/2019 7/1/2020
(14 months) 25,343 10 100% No Yes Yes Yes
Huntington Park Los Angeles 3/5/2012 7/1/2013
(16 months) 5,8694 2 100% rental,
80% condos
Yes,
condos 80% Yes Yes
Lafayette Contra Costa 11/12/2013 2/10/2014
(3 months) 12,761 3 100% new,
0% existing Yes Yes Specifically
Exempt No
Larkspur Marin 4/20/2011
5/20/11 new,
11/17/11
existing
(7 months)
12,375 2 100% new,
80% existing Yes Yes No (Not
Addressed) Yes
Loma Linda San
Bernardino 6/24/2008 1/1/2012
(3.5 years) 24,078 2 70% Yes No No (Not
Addressed)
Smoking
Prohibited
Los Gatos Santa Clara 5/26/2016 6/25/2017
(13 months) 30,922 2 100% No No Yes Yes
Manhattan
Beach Los Angeles 10/20/2015 5/5/2017
(18.5 months) 35,573 3 100% No Yes Yes Yes
Marin County^ 5/22/2012
2/16/13 new,
8/20/13 existing
(15 months)
68,394 2 100% new,
80% existing No Yes Specifically
Exempt
Medical Use
Exempt
Millbrae San Mateo 7/23/2019 1/1/2020 22,703 2 100% No Yes Yes Yes 5 Policy Provisions
Municipality County
Most
Recent

Enactment
Date
Effective Date
(phase-in time) Population Minimum
# of Units
% of Units
Smokefree
Exempts
Existing
Residents
Includes
Condos
Includes
E-Cigarette
Use
Includes
Smoking/
Vaping
Marijuana
(5 months)
Mill Valley Marin 10/19/2015 11/18/2016
(13 months) 14,343 2 100% No Yes Yes Yes
Moorpark Ventura 12/20/2017 2/1/2019
(13.5 months) 36,274 2 100% No No Yes Yes
Morro Bay San Luis
Obispo 4/28/2020 8/1/2020
(3 months) 10,592 2 100% No Yes Yes Yes
Novato Marin 1/24/2017 1/1/2018
(11 months) 55,523 2 100% No Yes Yes Yes
Oakley Contra Costa 2/11/2014 4/1/2014
(1.5 months) 20,373 2 100% new,
0% existing No Yes No Vaping
Exempt
Pacific Grove# Monterey 12/18/2019 10/1/2021
(21.5 months) 15,567 2 100% No Yes Yes Yes
Pacifica San Mateo 9/9/2019 10/9/2020
(13 months) 39,065 2 100% No Yes Yes Yes
Palo Alto Santa Clara 1/9/2017 1/1/2018
(12 months) 67,019 2 100% No Yes Yes Yes
Pasadena Los Angeles 7/11/2011 1/1/2013
(18 months) 141,246 2 100% No Yes No (Not
Addressed) Yes
Petaluma Sonoma 1/28/2013 1/1/2014
(11 months) 60,635 2 100% No Yes Yes Yes
Pinole Contra Costa 9/17/2019 10/18/2019
(1 month) 10,342 2 100% No Yes Yes No
Pleasant Hill Contra Costa 4/5/2010
4/5/10 new,
1/1/16 existing
(5 years)
19,018 4 100% new,
50% existing No No Yes Vaping
Prohibited
Pleasanton Alameda 9/5/2017 10/4/2018
(13 months) 41,904 2 100% No No Yes
Medical Use
Exempt in
Outdoor
Area
6 Policy Provisions
Municipality County
Most
Recent

Enactment
Date
Effective Date
(phase-in time) Population Minimum
# of Units
% of Units
Smokefree
Exempts
Existing
Residents
Includes
Condos
Includes
E-Cigarette
Use
Includes
Smoking/
Vaping
Marijuana
Rancho
Cordova# Sacramento 10/5/2020 10/5/2021
(12 months) 72,056 2 100% No Yes Yes Yes
Redwood City San Mateo 11/13/2017 1/1/2019
(13.5 months) 85,217 2 100% No Yes Yes Yes
Richmond Contra Costa 7/21/2009 1/1/2011
(17.5 months) 57,852 2 100% No Yes Yes
Medical
Smoking
Exempt
Rohnert Park Sonoma 1/23/2018 4/23/2018
(3 months) 42,694 2 100% No Yes Yes Yes
Ross Marin 1/11/2019 2/9/2020
(13 months) 2,309 2 100% No Yes Yes Yes
San Anselmo Marin 12/9/2014 1/8/2016
(13 months) 12,567 2 100% No Yes Yes Yes
San Bruno San Mateo 11/22/2016 2/22/2018
(15 months) 43,114 2 100% No Yes Yes Yes
San Carlos San Mateo 4/8/2019 7/8/2020
(15 months) 30,080 2 100% No Yes Yes Yes
San Mateo San Mateo 7/17/2017 8/16/2017
(1 month) 104,035 2 100% No Yes Yes Yes
San Mateo
County^ 11/4/2014 2/4/2016
(15 months) 65,327 2 100% No Yes Yes No
San Pablo# Contra Costa 2/18/2020 7/1/2021
(16.5 months) 15,584 2 100% No No Yes Yes
San Rafael Marin 10/15/2012 11/14/2013
(13 months) 58,939 3 100% No Yes Specifically
exempt No
Santa Clara Santa Clara 2/5/2019 8/1/2019
(6 months) 126,209 2 100% No Yes Yes Yes
Santa Clara
County^ 11/9/2010 2/9/2012
(15 months) 84,651 2 100% No Yes Yes No
7 Policy Provisions
Municipality County
Most
Recent

Enactment
Date
Effective Date
(phase-in time) Population Minimum
# of Units
% of Units
Smokefree
Exempts
Existing
Residents
Includes
Condos
Includes
E-Cigarette
Use
Includes
Smoking/
Vaping
Marijuana
Santa Monica Los Angeles 10/23/2012 11/22/2012
(1 month) 92,078 N/S
100% new,
designated
existing
units
Yes Yes Yes No
Santa Rosa Sonoma 7/7/2015 8/7/2016
(13 months) 181,038 2 100% No Yes Yes Yes
Saratoga Santa Clara 8/17/2016 9/16/2016
(1 month) 30,886 4 100% No No Yes Yes
Sausalito Marin 7/31/2012
2/27/13 new,
8/30/13 existing
(13 months)
7,139 2 100% new,
80% existing No Yes Yes
Medical
Smoking
Exempt
Sebastopol Sonoma 8/3/2010 11/2/2011
(15 months) 7,666 2 100% No Yes Yes No
Sonoma Sonoma 11/8/2016 12/12/2016
(1 month) 11,074 2 100% No Yes Yes Yes
Sonoma
County^ 9/13/2011 1/12/2013
(16 months) 142,634 2 100% No Yes No No
South Pasadena Los Angeles 8/4/2010
3/3/11 new,
9/4/13 existing
(3 years)
25,824 2 100% new,
80% existing No Yes Yes Yes
South San
Francisco San Mateo 11/9/2016 11/9/2017
(12 months) 67,294 2 100% No Yes Yes Yes
Sunnyvale Santa Clara 2/23/2016 9/23/2016
(7 months) 152,323 2 100% No Yes Yes Yes
Temecula Riverside 5/8/2007
11/8/07 new,
6/7/12 existing
(5 years)
112,230 10 25% Yes N/S No (Not
Addressed)
Medical Use
Exempt
Tiburon Marin 7/18/2018 10/18/2018
(3 months) 9,151 3 100% No Yes Yes Yes
Union City Alameda 11/23/2010 2/23/2012 40,271 2 100% No No Yes Yes 8 Policy Provisions
Municipality County
Most
Recent

Enactment
Date
Effective Date
(phase-in time) Population Minimum
# of Units
% of Units
Smokefree
Exempts
Existing
Residents
Includes
Condos
Includes
E-Cigarette
Use
Includes
Smoking/
Vaping
Marijuana
(15 months)
Walnut Creek Contra Costa 10/1/2013 1/30/2014
(4 months) 33,483 2 100% No Yes Yes
Medical
Vaping
Exempt
Windsor Sonoma 5/17/2017 8/15/2017
(3 months) 27,506 2 100% No Yes Yes Yes

Explanatory Notes:

Policies that require all rental and condominium/owner-occupied properties with 2 or more units to be 100% smokefree—and include e- cigarette use and marijuana smoking/vaping—are in bold.

Policies that require MUH units to be 100% smokefree but apply to buildings with 3 or more units, or do not fully include e-cigarette use and/or marijuana smoking/vaping in the policy—are not bolded.

Partial policies that require less than 100% of units to be smokefree are listed in blue text. # = Law is enacted but will not be fully in effect until the listed Effective Date. ^ = Law applies only to unincorporated areas of the county. Population listed is for unincorporated areas of the county.

N/S = Not Specified: The law does not specify information on this policy provision. 1 = Smoking prohibited in multi-unit buildings when units share heating or cooling systems.

Definitions:

Most Recent Enactment Date: The date the municipality’s most recent policy addressing smoking in MUH was enacted. The enactment dates of any prior policies addressing smoking in MUH are not listed here. 9 Effective Date: The final date when the policy is in full effect. Policies often have an initial effective date for when common areas and newly occupied units must be smokefree, and a final effective date when the policy is in effect for residents living in the building at the time the policy is enacted.

Phase-in time: The length of time between the policy’s enactment date and when it went into full effect. The phase-in time does not reflect the unknown date in the future when buildings will be 100% smokefree for policies that exempt existing residents indefinitely.

Minimum # of units: The minimum number of units in MUH buildings that are necessary for the policy to apply. The best practice is for policies to apply to MUH buildings with 2 or more units. % of Units Smokefree: The percent of units in MUH buildings that are required to be smokefree when the law is fully in effect. The best practice is for policies to require 100% of units in all MUH buildings to be smokefree. If a policy has different requirements for new units versus existing units, the percentages are specified as “X% new, Y% existing.” Existing Residents Exempt: Indicates if the policy allows residents living in MUH buildings at the time the law is adopted to continue smoking in their unit indefinitely. This exemption is often referred to as a grandfathering provision.

Includes Condos: Indicates if the policy covers condominiums, townhomes, and other types of owner-occupied MUH buildings.

Includes E-Cigarettes: Indicates if policy regulates the use of electronic smoking devices, like e-cigarettes and other vaping products, in the same manner as it regulates smoking tobacco. As of 2016, the California Business and Professions Code Section 22950.5(c) defines smoking to include the use of an electronic smoking device. This matrix reflects the language included in each municipal policy, some of which do not address the use of these products or include exemptions that may not be consistent with current state definitions.

Includes Marijuana: Indicates if policy regulates smoking and vaping marijuana/cannabis in the same manner as it regulates smoking tobacco. Since 2017, California Health and Safety Code Section 11362.1(2) does not permit smoking marijuana/cannabis in a location where smoking tobacco is prohibited. This matrix reflects the language included in each municipal policy, some of which do not address marijuana/cannabis or include exemptions that may not be consistent with current state definitions.

ANR Foundation is actively collecting policies for the PETS Database. If you know of local laws that you think should be included in this matrix, or want to inquire about additional information on particular laws, please contact the ANR Foundation at [email protected].

© 2021, California Department of Public Health. This material may not be reproduced or disseminated without prior written permission from the California Department of Public Health. www.lung.org 1-800-LUNG-USA
Guide to Asthma Policy for Housing and Schools

www.phlpnet.org • [email protected] • (510) 302-3380

Model California Ordinance
Regulating Smoking in
Multi-Unit Residences
(with Annotations)

Revised December 2009
(Originally issued April 2005)

Developed by the Technical Assistance Legal Center (TALC), a project of Public Health Law & Policy.

This material was made possible by funds received from the California Department of Public Health, under contract #09-11182.

Public Health Law & Policy is a nonprofit organization that provides legal information on matters relating to public health. The legal information provided in this document does not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.

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Guide to Asthma Policy for Housing and Schools
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 2 Technical Assistance Legal Center—revised December 2009 Introduction

The Technical Assistance Legal Center (TALC) developed this Model Ordinance to help California cities and counties limit exposure to secondhand smoke in multi-unit residences such as apartment buildings, condominium complexes, senior housing, and single resident occupancy hotels. By creating nonsmoking living environments in multi-unit residences, communities can provide an opportunity for everyone to live smokefree – even people who can’t afford to live in a single-family home.

The Ordinance’s comprehensive design limits exposure to secondhand smoke by restricting smoking in common areas (indoors and outdoors), creating smokefree buffer zones, and prohibiting smoking in individual units. Communities may choose to include some or all of the options offered in the Model Ordinance, depending on the jurisdictions’ policy objectives. TALC can help adapt this Model Ordinance to meet an individual community’s needs.

To assist cities and counties in creating smokefree multi-unit housing, this Model Ordinance includes:
• Extensive findings based on the latest scientific information documenting the health risks associated with tobacco use and exposure to secondhand smoke; • Restrictions on smoking in the indoor and outdoor common areas of all types of multi- unit residences, with the option to create designated outdoor smoking areas that meet specific criteria;
• Smokefree buffer zones that can expand to include neighboring property and/or balconies and patios of adjacent units to limit drifting secondhand smoke from entering nonsmoking areas;
• Prohibitions on smoking inside the units of multi-unit residences, including apartments and condominiums;
• Recommended procedures for designating nonsmoking units by landlords and homeowners’ associations; and
• Robust enforcement mechanisms including no-smoking lease terms and options for private individuals and organizations to enforce the smokefree housing provisions.

This Model Ordinance is very broad and can be used to limit smoking in all types of multi-unit dwelling places – from hotels to long-term health care facilities – as well as apartments and condominiums. Some of the comments in the Model Ordinance describe how to narrow the scope of the smoking restrictions, should that be necessary.

In addition, this Model Ordinance provides a step-by-step approach to designating nonsmoking units, including a recommended implementation process that allows tenants and landlords to become familiar with the new smoking restrictions over a 12-month period. Implementing a smokefree housing law by using a reasonable phase-in period followed by a certain date on which everyone is required to abide by the law is generally perceived to be the most fair and effective approach – balancing public health needs against the potential inconvenience the ordinance puts on tenants who smoke and landlords who must implement the new policy.

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Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 3 Technical Assistance Legal Center—revised December 2009 Please note: while this Ordinance is not written specifically for communities with rent control laws, there are no legal restrictions that would prevent those cities from adopting a smokefree housing law.

However, it is highly recommended that in such jurisdictions the city attorney and rent control board be included in selecting and adopting the specific provisions for a smokefree housing law.

This Model Ordinance offers a variety of options. In some instances, blanks (e.g., [ ____ ] ) prompt you to customize the language to fit your community’s needs. In other cases, the ordinance offers you a choice of options (e.g., [ choice one
/ choice two ] ). Some of the ordinance options are
followed by a comment that describes the legal provisions in more detail. Some degree of customization is always necessary in order to make sure that the ordinance is consistent with a community’s existing laws. Your city attorney or county counsel will likely be the best person to check this for you.

TALC has also developed other ordinances to create smokefree outdoor areas, such as parks, beaches, dining patios, and public events. If you would like to adopt a comprehensive or more customized approach, some aspects of other TALC ordinances can be combined with this ordinance.

If you have questions about how to adapt this or other TALC ordinances for your community, please contact TALC for assistance at (510) 302-3380 or submit your question via our website at www.phlpnet.org/tobaccoquestions
.

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Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 4 Technical Assistance Legal Center—revised December 2009 AN ORDINANCE OF THE [ CITY / COUNTY OF ____ ] PROHIBITING SMOKING IN AND AROUND MULTI-UNIT RESIDENCES AND AMENDING THE [ ____ ]

MUNICIPAL CODE

The [ City Council / County Board of Supervisors ] of the [ City / County of ____ ] does ordain as follows:

SECTION I. FINDINGS.

The [ City Council / County Board of Supervisors ] of [ ____ ] hereby finds and declares as follows:

WHEREAS, tobacco use causes death and disease and continues to be an urgent public health threat, as evidenced by the following:

• Tobacco-related illness is the leading cause of preventable death in the United States, 1 accounting for about 443,000 deaths each year; 2 and
• Scientific studies have concluded that tobacco use can cause chronic lung disease, coronary heart disease, and stroke, in addition to cancer of the lungs, larynx, esophagus, and mouth;
3 and
• Some of the most common types of cancers, including stomach, liver, uterine cervix, and kidney cancers, are related to tobacco use; 4 and

WHEREAS, secondhand smoke has been repeatedly identified as a health hazard, as evidenced by the following:

• The U.S. Surgeon General concluded that there is no risk-free level of exposure to secondhand smoke; 5 and
• The California Air Resources Board placed secondhand smoke in the same category as the most toxic automotive and industrial air pollutants by categorizing it as a toxic air contaminant for which there is no safe level of exposure; 6 and

1 US Department of Health and Human Services, Centers for Disease Control and Prevention. Targeting Tobacco Use: The Nation’s Leading Cause of Preventable Death . 2008, p. 2. Available at:
www.cdc.gov/nccdphp/publications/aag/pdf/osh.pdf .
2 US Department of Health and Human Services, Centers for Disease Control and Prevention. “Smoking-Attributable Mortality, Years of Potential Life Lost, and Productivity Losses – United States, 2000-2004.” Morbidity and Mortality Weekly Report, 57(45): 1226-1228, 2008. Available at: www.cdc.gov/mmwr/preview/mmwrhtml/mm5745a3.htm . 3 US Department of Health and Human Services, Centers for Disease Control and Prevention. Targeting Tobacco Use: The Nation’s Leading Cause of Preventable Death . 2008, p. 2. Available at:
www.cdc.gov/nccdphp/publications/aag/pdf/osh.pdf .
4 Leistikow B, Zubair K, et al. “Male Tobacco Smoke Load and Non-Lung Cancer Mortality Associations in Massachusetts.” BMC Cancer, 8:341, 2008. Available at: www.biomedcentral.com/1471-2407/8/341 . 5 US Department of Health and Human Services, Office of the Surgeon General. The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General . 2007. Report highlights available at:
www.surgeongeneral.gov/library/secondhandsmoke/factsheets/factsheet7.html . 6 Resolution 06-01, Cal. Air Resources Bd. (2006) at 5. Available at: www.arb.ca.gov/regact/ets2006/res0601.pdf ; See California Environmental Protection Agency, Air Resources Board. News Release, California Identifies Secondhand Smoke as a “Toxic Air Contaminant.” Jan. 26, 2006. Available at: www.arb.ca.gov/newsrel/nr012606.htm .

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Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 5 Technical Assistance Legal Center—revised December 2009 • The California Environmental Protection Agency 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;
7 and

WHEREAS, exposure to secondhand smoke causes death and disease, as evidenced by the following:

• Secondhand smoke is responsible for as many as 73,000 deaths among nonsmokers each year in the United States;
8 and
• Exposure to secondhand smoke increases the risk of coronary heart disease by approximately thirty percent;
9 and
• Secondhand smoke exposure causes lower respiratory tract infections, such as pneumonia and bronchitis in as many as 300,000 children in the United States under the age of 18 months each year;
10 and exacerbates childhood asthma; 11 and

WHEREAS, the U.S. Food and Drug Administration conducted laboratory analysis of electronic cigarette samples and found they contained carcinogens and toxic chemicals to which users and bystanders could potentially be exposed; 12 and

WHEREAS, tobacco use and exposure to secondhand smoke impose great economic costs, as evidenced by the following:

• The total annual economic burden of smoking in the United States is $193 billion; 13 and • From 2001-2004, the average annual health care expenditures attributable to smoking were approximately $96 billion; 14 and
• The medical and other costs to nonsmokers due to exposure to secondhand smoke were estimated at over $10 billion per year in the United States in 2005; 15 and
• The total annual cost of smoking in California was estimated at $475 per resident or

7 California Environmental Protection Agency, Office of Environmental Health Hazard Assessment. Chemicals Known to the State to Cause Cancer or Reproductive Toxicity . 2006, p. 8 & 17. Available at:
www.oehha.ca.gov/prop65/prop65_list/files/P65single081106.pdf . 8 US Department of Health and Human Services, Centers for Disease Control and Prevention. Fact Sheet – Secondhand Smoke. 2006. Available at:
www.cdc.gov/tobacco/data_statistics/fact_sheets/secondhand_smoke/general_facts/index.htm . 9 Barnoya, J and Glantz, S. “Cardiovascular Effects of Secondhand Smoke: Nearly as Large as Smoking.” Circulation, 111: 2684-2698, 2005. Available at: www.circ.ahajournals.org/cgi/content/full/111/20/2684 . 10 US Department of Health and Human Services, Centers for Disease Control and Prevention. Targeting Tobacco Use:

The Nation’s Leading Cause of Preventable Death . 2008, p. 2. Available at:
www.cdc.gov/nccdphp/publications/aag/pdf/osh.pdf .
11 US Department of Health and Human Services, Centers for Disease Control and Prevention. Fact Sheet – Secondhand Smoke. 2006. Available at:
www.cdc.gov/tobacco/data_statistics/fact_sheets/secondhand_smoke/general_facts/index.htm . 12 US Food and Drug Administration. News Release, FDA and Public Health Experts Warn About Electronic Cigarettes . 2009. Available at: www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ucm173222.htm. 13 Centers for Disease Control and Prevention. News Release, Slightly Lower Adult Smoking Rates. 2008. Available at:
www.cdc.gov/media/pressrel/2008/r081113.htm .
14 Centers for Disease Control and Prevention. News Release, Slightly Lower Adult Smoking Rates. 2008. Available at:
www.cdc.gov/media/pressrel/2008/r081113.htm .
15 Behan DF, Eriksen MP and Lin, Y. Economic Effects of Environmental Tobacco Smoke . Schaumburg, IL: Society of Actuaries, 2005, p. 2. Available at: www.soa.org/files/pdf/ETSReportFinalDraft(Final%203).pdf .

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Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 6 Technical Assistance Legal Center—revised December 2009 $3,331 per smoker per year, for a total of nearly $15.8 billion in smoking-related costs in 1999 alone;16 and
• California’s Tobacco Control Program saved the state and its residents $86 billion in health care expenditures between the year of its inception, 1989, and 2004, with savings growing yearly;
17 and

WHEREAS, smoking is the primary cause of fire-related injuries and deaths in the home, as evidenced by the following:

• Cigarettes, cigars, pipes and other smoking materials are the leading cause of fire deaths in the United States,
18 causing an estimated 142,900 smoking-related fires, 780 deaths, 1,600 injuries, and $606 million in direct property damage in 2006; 19 and • One in four fatalities from home fires caused by smoking is NOT the smoker whose cigarette started the fire, and 25% of those deaths were of neighbors or friends of the smoker;
20 and
• Smoking in a residence where long-term oxygen therapy takes place is very dangerous as oxygen is a fire accelerant, and 27% of fatalities due to smoking during long-term oxygen therapy occurred in multifamily dwellings; 21 and
• The United States Fire Administration recommends that people smoke outdoors; 22 and

WHEREAS, nonsmokers who live in multi-unit dwellings can be exposed to neighbors’ secondhand smoke, as evidenced by the following:

• Secondhand smoke can seep under doorways and through wall cracks; 23 and • Persons living in apartments near smokers can be exposed to elevated pollution levels for 24 hours a day, and at times, the particulate matter exposure can exceed the U.S.

16 Max W, Rice DP, Zhang X, et al. The Cost of Smoking in California, 1999 . Sacramento, CA: Tobacco Control Section, California Department of Health Services, 2002, p. 74. Available at:
http://repositories.cdlib.org/cgi/viewcontent.cgi?article=1026&context=ctcre . 17 Lightwood JM, Dinno A and Glantz SA. “Effect of the California Tobacco Control Program on Personal Health Care Expenditures.” PLoS Med, 5(8): e178, 2008. Available at:
www.plosmedicine.org/article/info:doi/10.1371/journal.pmed.0050178 . 18 Leistikow B, Martin DC and Milano CE. “Fire Injuries, Disasters, and Costs from Cigarettes and Cigarette Lights: A Global Overview.” Preventive Medicine, 31: 91-99, 2000. Available at: http://leistikow.ucdavis.edu/SmokingFires.pdf . 19 Hall JR. U.S. Smoking-Material Fire Problem . Quincy, MA: National Fire Protection Association, 2008, p. vii.

Available at: www.nfpa.org/assets/files//PDF/OS.Smoking.pdf . (Factsheet available at:
www.nfpa.org/assets/files//PDF/smokingfactsheet.pdf .)
20 Hall JR, Ahrens M, Rohr K, et al. Behavioral Mitigation of Smoking Fires Through Strategies Based on Statistical Analysis. US Department of Homeland Security, 2006, p. 17. Available at:
www.usfa.dhs.gov/downloads/pdf/publications/fa-302-508.pdf . 21 US Department of Health and Human Services, Centers for Disease Control and Prevention. “Fatal Fires Associated with Smoking During Long-Term Oxygen Therapy – Maine, Massachusetts, New Hampshire, and Oklahoma, 2000 – 2007.” Morbidity and Mortality Weekly Report, 57(31): 852-854, 2008. Available at:
www.cdc.gov/mmwr/preview/mmwrhtml/mm5731a3.htm?s_cid=mm5731a3_e . 22 Hall JR, Ahrens M, Rohr K, et al. Behavioral Mitigation of Smoking Fires Through Strategies Based on Statistical Analysis. US Department of Homeland Security, 2006, p. 19. Available at:
www.usfa.dhs.gov/downloads/pdf/publications/fa-302-508.pdf . 23 Wagner J, Sullivan DP, Faulkner D, et al. “Environmental Tobacco Smoke Leakage from Smoking Rooms.” Journal of Occupational and Environmental Hygiene, 1: 110-118, 2004. Available at: http://eetd.lbl.gov/IEP/pdf/LBNL-51010.pdf .

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Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 7 Technical Assistance Legal Center—revised December 2009 Environmental Protection Agency’s 24-Hour Health Based Standard; 24 and • 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;
25 and

WHEREAS, most Californians do not smoke and a majority favor limitations on smoking in multi-unit residences, as evidenced by the following:

• Nearly 87% of Californians and 91% of California women are nonsmokers; 26 and • 74% of Californians surveyed approve of apartment complexes requiring at least half of rental units be nonsmoking;
27 and
• 69% of Californians surveyed favor limiting smoking in outdoor common areas of apartment buildings and 78% support laws that create nonsmoking units; 28 and
• 62% of California renters feel that there is a need for laws to limit smoking in apartments;29 and

WHEREAS, a local ordinance that authorizes residential rental agreements to include a prohibition on smoking of tobacco products within rental units is not prohibited by California law; 30 and

WHEREAS, there is no Constitutional right to smoke;
31 and
WHEREAS, California law prohibits smoking in virtually all indoor places of employment reflecting the state policy to protect against the dangers of exposure to secondhand smoke; 32 and

WHEREAS, California law declares that anything which is injurious to health or obstructs the

24 Klepeis N. Measuring the Seepage of Tobacco Smoke Particles Between Apartment Units. California’s Clean Air Project, 2008. Available at: http://ccap.etr.org/base/documents/Measuring_the_Seepage.pdf . 25 US Department of Health and Human Services, Office of the Surgeon General. The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General. 2006, p. 11. Available at:
www.cdc.gov/tobacco/data_statistics/sgr/sgr_2006/index.htm#full . 26 California Department of Health Services. News Release, New Data Show 91 Percent of California Women Don’t Smoke. 2007. Available at: www.applications.dhs.ca.gov/pressreleases/store/PressReleases/07- 37%20dhs%20smoking%20rates-with%20charts.html .
27 Goodwin Simon Victoria Research. Study of California Voters’ Attitudes About Secondhand Smoke Exposure. 2008.

Available at: www.center4tobaccopolicy.org/_files/_files/Results%20of%20SHS%20Poll%20November%202008.pdf (Statewide poll of 600 California voters, conducted November 2008). 28 Goodwin Simon Victoria Research. Study of California Voters’ Attitudes About Secondhand Smoke Exposure. .2008.

Available at: www.center4tobaccopolicy.org/_files/_files/Results%20of%20SHS%20Poll%20November%202008.pdf (Statewide poll of 600 California voters, conducted November 2008). 29 American Lung Association of California, Center for Tobacco Policy and Organizing. Statewide Apartment Renter Study. 2004. Available at:
www.center4tobaccopolicy.org/_files/_files/5242_Center%20Renter%20Survey%20Results%20May%202004.pdf (A survey of apartment residents throughout California).
30 Cal. Legislative Counsel Op., 21547, Secondhand Smoke in Multi-Unit Housing (Apartments & Condos) Smoking Bans:

Residential Rental Property , (September 23, 1999). Highlights available at: www.respect- ala.org/drift_samsmokingbans.htm .
31 Public Health Law & Policy, Technical Assistance Legal Center. There Is No Constitutional Right to Smoke. 2005.

Available at: www.phlpnet.org/tobacco-control .
32 Cal. Lab. Code § 6404.5 (West 2009).

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Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 8 Technical Assistance Legal Center—revised December 2009 free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance;33 and

WHEREAS, local governments have broad latitude to declare nuisances and are not constrained by prior definitions of nuisance;
34 and

NOW THEREFORE, it is the intent of the [ City Council / County Board of Supervisors ] in enacting this ordinance, to provide for the public health, safety, and welfare by discouraging the inherently dangerous behavior of smoking around non-tobacco 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.

SECTION II. [ Article / Section ] of the [ City / County of ____ ] Municipal Code is hereby amended to read as follows:

Sec. [ ____ (*1) ]. DEFINITIONS. For the purposes of this [ article / chapter ] the following definitions shall govern unless the context clearly requires otherwise:

(a) “Adjacent Property” means any Unenclosed Area of property, publicly or privately owned, that abuts a Multi-Unit Residence [ , but does not include property containing detached single-family homes / , but does not include property containing only residential structures ].

COMMENT: This definition is used to describe the reach of nonsmoking “buffer zones” around Multi-Unit Residences. It defines where Smoking is prohibited when buffer zones reach beyond the property lines of the Multi-Unit Residence and extend onto neighboring property (see Section *3 “Nonsmoking Buffer Zones”).

Four options are available, listed below from the strongest to the weakest protections.

Option one—Include Everything: Include all adjoining property, public and private, by omitting all bracketed language. With this option, a smokefree buffer zone might encompass a portion of the backyard of a single-family residence.

Option two—Include Everything but Single-Family Homes :

Include all adjoining property, public and private, except single- family residences by including only the single-underlined language.

Option three—Include Everything but Residential Property :

Include all adjoining property, public and private, except residential property (e.g., single-family residences or Multi-Unit Residences) by including only the double-underlined language.

This option still includes, for example, outdoor areas of businesses, parking lots, and some places not open to the general public such as members-only clubs

33 Cal. Civil Code § 3479 (West 2009).
34 In Re Jones, 56 Cal.App.2d 658, 663 (1943); See also Cal. Const., art. XI, § 7 and Cal. Gov. Code § 38771 (West 2009).

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Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 9 Technical Assistance Legal Center—revised December 2009 Option four—Exclude Everything : Do not include any adjoining property in the buffer zones, in which case the entire definition should be deleted.

(b) “Common Area” means every Enclosed Area or Unenclosed Area of a Multi-Unit Residence that residents of more than one Unit of that Multi-Unit Residence are entitled to enter or use, including, for example, halls and paths, lobbies and courtyards, elevators and stairs, community rooms and playgrounds, gym facilities and swimming pools, parking garages and parking lots, shared restrooms, shared laundry rooms, shared cooking areas, and shared eating areas.

COMMENT: Note that California Labor Code section 6404.5 (the state smokefree workplace law) may already prohibit Smoking in indoor Common Areas if the Multi-Unit Residence has
employees, such as maintenance workers, property managers, or others who work on-site.

The definition of Common Areas does not include balconies, patios, or decks associated with individual Units because these are not shared areas. Balconies, patios, and decks are included in the definition of Unit.

(c) “Common Interest Complex” means a Multi-Unit Residence that is a condominium project, [ a community apartment project,
] [ a stock cooperative, ] [ or a planned development ] as defined by California Civil Code section 1351.

COMMENT: This definition is used to distinguish owned multi-unit housing (e.g., condominiums and townhomes) from other types of Multi-Unit Residences, such as apartments that are leased, which are defined in the term “Rental Complex” (see below). The distinction between all types of Multi-Unit Residences and those that are owned is necessary if a community decides to regulate smoking in less than 100% of existing Units in Multi-Unit Residences (see Sections *5 and *6). This distinction is necessary because of the logistical difficulty in determining which owner-occupied Units should be nonsmoking and which should allow Smoking.

The list of optional Common Interest Complexes includes other types of housing that, like condominiums, have covenants, conditions, and restrictions (CC&Rs) and are managed by a homeowners’ association.

(d) “Enclosed Area” means an area in which outside air cannot circulate freely to all parts of the area, and includes an area that has:

(1) any type of overhead cover whether or not that cover includes vents or other openings and at least [ three (3)
] walls or other vertical boundaries of any height whether or not those boundaries include vents or other openings; or

(2) [ four (4) ] walls or other vertical boundaries that exceed [ six (6) ] feet in height whether or not those boundaries include vents or other openings.

COMMENT: The number of walls and the height threshold can be T AMERICAN LUNG ASSOCIATION @
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Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 10 Technical Assistance Legal Center—revised December 2009 customized to meet the needs of your community, and changing these numbers will affect the scope of the ordinance. Reducing the number of walls in this definition would broaden the definition of Enclosed Area, which would result in narrowing the definition of Unenclosed Area. For the purposes of this ordinance, the distinction between “enclosed” and “unenclosed” is primarily relevant to establishing designated Smoking areas (see Section *2) and nonsmoking buffer zones (see Section *3).

An area that is partially covered by anything would be analyzed under subparagraph (1), whereas only areas that are totally uncovered would be analyzed under subparagraph (2). It can be difficult to apply Labor Code section 6404.5 to areas that are surrounded by lattice, hedges, and other nonsolid structures. For purposes of this ordinance any vertical boundary, regardless of composition, constitutes an “other vertical boundary” for application of this definition.

NOTE: If the Municipal Code already has Smoking restrictions, it may contain a definition of “enclosed.” Review the Code and make any necessary modification to existing definitions and/or operative provisions to ensure consistency with the new definition.

(e) “Landlord” means any Person who owns property let for residential use, any Person who lets residential property, and any Person who manages such property, except that “Landlord” does not include a master tenant who sublets a Unit as long as the master tenant sublets only a single Unit of a Multi-Unit Residence.

COMMENT: The Municipal Code may already contain a definition of “Landlord.” If so, the definition provided here can be omitted, although sublessors should specifically be excluded.

(f) “Multi-Unit Residence” means property containing two (2) or more Units [ , except the following specifically excluded types of housing:

(1) a hotel or motel that meets the requirements set forth in California Civil Code section 1940(b)(2);
(2) a mobile home park;
(3) a campground;
(4) a marina or port;
(5) a single-family home;
(6) a single-family home with a detached or attached in-law or second unit when permitted pursuant to California Government Code sections 65852.1, 65852.150, 65852.2 or an ordinance of the [ City / County ] adopted pursuant to those sections; and (7) ____ ].

COMMENT: Because the definition of Unit in this ordinance is so broad and includes all types of dwelling places—from rooms in a hotel to tents at a campground—a community may want to limit the types of dwelling places covered by the smokefree housing ordinance. The optional language provides examples of the types of exceptions that communities are likely to consider.

Note that the definition of Multi-Unit Residence without any exemptions would include the following types of dwelling places:

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Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 11 Technical Assistance Legal Center—revised December 2009 apartments, condominium projects, townhomes, stock
cooperatives, and co-housing; affordable housing (for seniors, for disabled tenants, for Section 8, etc.); long-term health care facilities, assisted living facilities, hospitals, and family support facilities; hotels, motels, single room occupancy (“SRO”) facilities, dormitories, and homeless shelters; mobile home parks, campgrounds, marinas, and ports; single-family homes and single-family homes with an in-law unit.

(g) “New Unit” means a Unit that is issued a [ certificate of occupancy / final inspection ] more than 180 days after [ insert effective date of ordinance ] [and also means a Unit that is let for residential use for the first time more than 180 days after [insert effective date of ordinance ] ].

COMMENT: This definition is used to differentiate between Units that are already built when the ordinance is adopted and Units constructed afterward. The distinction is important because, under this ordinance, all Units built after the ordinance is adopted are required to be nonsmoking, whereas Smoking could be allowed in some Units of existing multi-unit housing.

The definition incorporates a trigger date of 180 days after the ordinance takes effect so as to “grandfather” buildings already under construction.

The certificate of occupancy or final inspection is probably the most administrable way to distinguish between existing and New Units. However, a community could distinguish between Units for which land use entitlements have or have not issued or Units which have or have not been occupied by a tenant for the first time.

To include existing housing that may become available to the rental market after the ordinance is adopted, such as an in-law cottage that had previously never been rented, add the optional clause at the end of the definition.

Note that the term “New Unit” is a subset of “Unit,” so whenever the term Unit is used in the ordinance, it includes all New Units.

(h) “Nonsmoking Area” means any Enclosed Area or Unenclosed Area of a Multi-Unit Residence in which Smoking is prohibited by: (1) this [ chapter / article ] or other law; (2) by
binding agreement relating to the ownership, occupancy, or use of real property; or (3) by designation of a Person with legal control over the area. In the case of a Smoking prohibition established only by private agreement or designation and not by this [ chapter / article ] or other
law, it shall not be a violation of this [ chapter / article ] for a Person to engage in Smoking or to allow Smoking in that area unless: (1) the Person knows that Smoking is not permitted; or (2) a reasonable Person would know that Smoking is not permitted.

(i) “Person” means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity including government agencies.

COMMENT: The Municipal Code may contain a definition of “person”; review any existing definition of “person” in the Municipal Code to determine whether to include this definition in your ordinance.

T AMERICAN LUNG ASSOCIATION @
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This definition includes most businesses. In addition, it includes the City and County.

(j) “Rental Complex” means a Multi-Unit Residence for which fifty percent (50%) or more of Units are let by or on behalf of the same Landlord.

COMMENT: This definition is used to distinguish traditional rental housing (e.g., apartments, SROs) from other types of Multi-Unit Residences, such as condominiums that are owner-occupied. The distinction between all types of Multi-Unit Residences and those that are leased is necessary if a community decides to regulate smoking in less than 100% of existing Units in Multi-Unit Residences (see Section *6). This distinction is necessary because of the logistical difficulty in determining which owner-occupied Units should be nonsmoking and which should allow Smoking.

(k) “Smoke” means the gases, particles, or vapors released into the air as a result of combustion, electrical ignition or vaporization, when the apparent or usual purpose of the combustion, electrical ignition or vaporization is human inhalation of the byproducts, except when the combusting or vaporizing material contains no tobacco or nicotine and the purpose of inhalation is solely olfactory, such as, for example, smoke from incense. The term “Smoke” includes, but is not limited to, tobacco smoke, electronic cigarette vapors, marijuana smoke, and crack cocaine smoke.

COMMENT: This is a special definition that is more limited than the common understanding of what “smoke” is. For example, smoke from a fireplace or a barbeque grill is not “Smoke” for the purposes of this ordinance because the smoke generated by those activities is not produced for the purpose of inhaling it. The limitation placed on “Smoke” by this definition is important to avoid unintended consequences, such as inadvertently
prohibiting the burning of incense or use of barbeque grills.

This definition includes e-cigarettes. It also marijuana, but Smoking marijuana for medical purposes can be excluded from the prohibitions of this ordinance should a community decide to include Section *11(b).

(l) “Smoking” means engaging in an act that generates Smoke, such as, for example:
possessing a lighted pipe, a lighted hookah pipe, a lighted cigar, an operating electronic cigarette or a lighted cigarette of any kind; or lighting or igniting a pipe, a hookah pipe, a cigar, or a cigarette of any kind.

COMMENT: This definition includes marijuana, but Smoking marijuana for medical purposes can be excluded from the prohibitions of this ordinance should a community decide to include Section *11(b).

(m) “Unenclosed Area” means any area that is not an Enclosed Area.

(n) “Unit” means a personal dwelling space, even where lacking cooking facilities or private plumbing facilities, and includes any associated exclusive-use Enclosed Area or Unenclosed Area, such as, for example, a private balcony, porch, deck, or patio. “Unit” includes without limitation: an apartment; a condominium; a townhouse; a room in a long-term health care facility, assisted living facility, or hospital; a hotel or motel room; a room in a single room occupancy T AMERICAN LUNG ASSOCIATION @
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Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 13 Technical Assistance Legal Center—revised December 2009 (“SRO”) facility; a room in a homeless shelter; a mobile home; a camper vehicle or tent; a single- family home; and an in-law or second unit. Unit includes a New Unit.

COMMENT: This definition is intentionally extremely broad. It is designed to capture all conceivable “dwelling spaces” as the examples illustrate. However, because of the way that this model ordinance is designed, any limitations on the types of housing covered by the ordinance should be added to the defined term “Multi-Unit Residence” and not here. For example, some “mobile homes” in mobile home parks may be included in this definition and even cited in the examples but, nevertheless, “mobile homes” can be specifically excluded from the ordinance under the definition of “Multi-Unit Residence.”

Sec. [ ____ (*2) ]. NO SMOKING PERMITTED IN COMMON AREAS EXCEPT IN DESIGNATED SMOKING AREAS.

COMMENT: If your Municipal Code already has Smoking
restrictions, it may contain a provision for smokefree Common Areas of multi-unit housing. Review the Code and make any necessary modification to existing definitions and/or operative provisions to ensure consistency with new ordinance language.

(a) Smoking is prohibited in all Common Areas pursuant to Section [ ___ (*9) ] except that a Person with legal control over a Common Area, such as, for example, a Landlord or homeowners’ association, may designate a portion of the Common Area as a designated Smoking area provided that at all times the designated Smoking area complies with paragraph (b) below.

(b) A designated Smoking area:

(1) Must be an Unenclosed Area.

(2) Must be located at least twenty-five (25) feet from any Enclosed Area that is a Nonsmoking Area. A Person with legal control over a Common Area in which a designated Smoking area has been designated shall modify, relocate or eliminate that designated Smoking area so as to maintain compliance with the requirements of this subsection (b) as laws change, as binding agreements are created, and as Nonsmoking Areas on neighboring property are established.

COMMENT: This clause limits where a designated Smoking area can be located in order to prevent drifting Smoke from entering smokefree areas. As written, it includes areas on neighboring property that are designated as nonsmoking by contract (e.g., a smokefree lease term for a rental unit next to, but not part of, the Multi-Unit Residence) and areas on neighboring property designated by a property owner or lessee as nonsmoking (e.g., a neighboring business or homeowner).

(3) Must be at least twenty-five (25) feet from Unenclosed Areas primarily used by children and Unenclosed Areas with improvements that facilitate physical activity including, for example, playgrounds, tennis courts, swimming pools, and school campuses.

(4) Must be no more than [ ten percent (10%)
] of the total Unenclosed Area of the Multi-
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(5) Must have a clearly marked perimeter.

(6) Must be identified by conspicuous signs.

(c) No Person with legal control over a Common Area in which Smoking is prohibited by this [ chapter
/ article ] or other law shall knowingly permit the presence of ash trays, ash cans, or other receptacles designed for or primarily used for disposal of Smoking waste within the area.

(d) Clear and unambiguous “No Smoking” signs shall be posted in sufficient numbers and locations to make Common Areas where Smoking is prohibited by this [ article / chapter ] or other law obvious to a reasonable person. The signs shall have letters of no less than one inch in height or contain the international “No Smoking” symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle crossed by a red bar). Such signs shall be maintained by the Person or Persons with legal control over the Common Areas. The absence of signs shall not be a defense to a violation of any provision of this [ article / chapter ].

Sec. [ ____ (*3) ]. NONSMOKING BUFFER ZONES.

(a) Smoking is prohibited in Unenclosed Areas of Multi-Unit Residence, including balconies, porches, decks, and patios, within twenty-five (25) feet in any direction of any doorway, window, opening, or other vent into an Enclosed Area that is a Nonsmoking Area.

COMMENT: This section addresses the problem of Smoking so close to a “nonsmoking” area that Smoke easily drifts into it. This restriction even applies to Smoking on exclusive-use balconies, porches, decks, and patios of Units where Smoking would otherwise be allowed, if these areas are within 25 feet of a nonsmoking Unit. A community can make all exclusive-use outdoor areas nonsmoking. To do so, include the optional subsection (d) below.

[ (b) Smoking is prohibited in Unenclosed Areas of Adjacent Property within twenty-five (25) feet in any direction of any doorway, window, opening, or other vent into an Enclosed Area that is a Nonsmoking Area. ]

COMMENT: To create the most comprehensive smokefree buffer zone, include this option. This subsection creates a smokefree buffer zone that extends to Unenclosed Areas on neighboring property that is within 25 feet of any doorway, window, etc., of the Multi-Unit Residence. This comprehensive provision can be fine-tuned by selecting a version of the “Adjacent Property” definition to exempt certain types of neighboring property, such as property containing detached single-family homes, while still prohibiting Smoking on other private property, such as bar patios and loading docks. If this option is not included in your community’s ordinance, the defined term “Adjacent Property” in Section *1 should be deleted.

T AMERICAN LUNG ASSOCIATION @
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Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 15 Technical Assistance Legal Center—revised December 2009 [ (c) Subsections (a) and (b) above do not apply to a Person who is Smoking in the restricted buffer zone area for less than a minute while actively passing on the way to another destination, and who does not enter the buffer zone area while Smoking more than twice per day. ]

COMMENT: This optional exemption for a passerby who is
Smoking (e.g., Smoking while walking or driving by) is a common component of entryway Smoking bans. However, such an
exemption could prove problematic in the multi-unit housing context because a Person who is Smoking could claim to be just passing through but in fact be intentionally violating the ordinance. The timing restriction is an attempt to limit this problem but does not eliminate it completely. Without this exemption, a Person who is Smoking in a buffer zone while passing through it will be in violation of the law.

[ (d) Notwithstanding any other provision of this [ article / chapter ], Smoking is prohibited in all exclusive-use Unenclosed Areas associated with a Unit, such as, for example, a private balcony, porch, deck, or patio. ]

COMMENT: This optional subsection prohibits Smoking in all exclusive-use outdoor areas that are associated with a Unit even if Smoking is permitted within the Unit (i.e., it is not a designated nonsmoking Unit). By doing so, this subsection unambiguously addresses the problem of Smoke drifting from the balcony or patio of one Unit into a neighboring Unit, a top complaint from residents living in multi-family housing. On the other hand, it might have the effect of leading people to increase their Smoking in the Unit, despite public health and fire safety advice to only engage in Smoking outside.

Sec. [ ____ (*4) ]. SMOKING RESTRICTIONS IN NEW UNITS OF MULTI-UNIT RESIDENCES.

(a) All New Units of a Multi-Unit Residence are hereby designated nonsmoking Units, including any associated exclusive-use Enclosed Areas or Unenclosed Areas, such as, for example, a private balcony, porch, deck, or patio; and including without limitation New Units in a Rental Complex and New Units in a Common Interest Complex.

(b) Smoking in a designated nonsmoking Unit is a violation of this [ article / chapter ] as
provided in Section [ ___ (*9) ].

COMMENT: As written, this section applies to all New Units of a Multi-Unit Residence. While the percentage of nonsmoking New Units required is a policy choice and may be modified, 100% nonsmoking Units is recommended. If your community chooses to require a lesser percentage, substitute the following provision:
(a) Up to one hundred percent (100%), but no less than [ ninety percent (90%) ], of New Units of a Multi-Unit Residence, including, for example, any associated exclusive-use Enclosed Areas or Unenclosed Areas, such as a private balcony, porch, deck, or patio, shall be permanently designated as nonsmoking Units by the Person or Persons causing the construction of the New Units.

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(b) Smoking in a designated nonsmoking Unit shall be a violation of this [ article / chapter ] as provided in Section [ ___ (*9) ].

(c) Designated nonsmoking Units shall not share a ventilation system with a Unit in which Smoking may be allowed. To the maximum extent practicable, nonsmoking Units shall be grouped together vertically and horizontally and physically separated from Units where Smoking may be allowed. Where possible, all units where Smoking may be allowed shall be in a single building of a multi-building Multi-Unit Residence.

(d) The designations required by subsection (a) above shall be permanent; shall be submitted in accordance with Section [ ___ (*10) ]; and shall be submitted by the Person who controls the Multi-Unit Residence in which the New Unit is located prior to any sale or lease of a New Unit and before a New Unit is occupied. The submitted designations must contain a description of each designated nonsmoking Unit sufficient to identify the Unit and must be accompanied by a diagram depicting the location of the designated nonsmoking Units in relation to all other Units.

Sec. [ ____ (*5) ]. NONSMOKING DESIGNATIONS FOR EXISTING UNITS OF A COMMON INTEREST COMPLEX.

COMMENT: This subsection prohibits Smoking inside all existing Units in a Common Interest Complex, such as condominiums, but provides an opportunity for the homeowners’ association to hold an election to allow Smoking in some of the existing Units. A potential incentive for a Common Interest Complex to establish 100% nonsmoking Units is that no action is required to set this standard.

Action is only required if the Common Interest Complex wishes to “opt out” of the 100% default established in subsection (a).

If your community wants to prohibit Smoking in all existing Units of Common Interest Complexes regardless of owner
preferences, omit subsection (c) and the reference to it in subsection (a) (“provided, however, that a lesser percentage of Units may be designated nonsmoking Units if a Common Interest Complex fully complies with subsection (c) below.”) . On the other hand, if your community wants to regulate only Rental
Complexes and not Common Interest Complexes, delete this entire Section (*5).

(a) All Units of a Common Interest Complex that are not New Units, including any associated exclusive-use Enclosed Areas or Unenclosed Areas, such as, for example, a private balcony, porch, deck, or patio, are hereby designated nonsmoking Units as of [ insert effective date of ordinance + 1 year ]; provided, however, that a lesser percentage of Units may be designated nonsmoking Units if a Common Interest Complex fully complies with subsection (c) below.

(b) Smoking in a designated nonsmoking Unit is a violation of this [ article / chapter ] as
provided in Section [ ___ (*9) ].

T AMERICAN LUNG ASSOCIATION @
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Guide to Asthma Policy for Housing and Schools
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 17 Technical Assistance Legal Center—revised December 2009 (c) By a vote of the membership as provided in subsection (1) below, a Common Interest Complex may choose to designate fewer than one-hundred percent (100%) of existing Units as nonsmoking Units by fully complying with the requirements stated in subsections (1) - (4) below.

Otherwise subsection (a) above shall apply.

(1) A vote by the membership on the threshold question of allowing less than one hundred percent (100%) of Units to be designated nonsmoking Units must take place before [ insert effective date of ordinance + 270 days
].

COMMENT: The recommended timeframe of 270 days (or nine months) is suggested as a reasonable amount of time to
organize and hold the homeowners’ association election while adhering to the legally required guidelines.

(2) Up to one hundred percent (100%), but no less than [ eighty percent (80%) ], of Units that are not New Units, including, for example, any associated exclusive-use Enclosed Areas or Unenclosed Areas, such as, for example, a private balcony, porch, deck, or patio, shall be permanently designated as nonsmoking Units.

(3) Where possible, best efforts shall be made to group nonsmoking Units together, both horizontally and vertically, and physically separate them from Units where Smoking may be allowed.

(4) No later than [ insert effective date of ordinance + 1 year ] the final designations must
be made and the following must be submitted in accordance with Section [ ___ (*10) ]:

(i) a description of each designated nonsmoking Unit sufficient to readily identify the Unit; and

(ii) a diagram depicting the location of the designated nonsmoking Units in relation to all other Units.

Sec. [ ____ (*6) ]. NONSMOKING DESIGNATIONS FOR EXISTING UNITS OF A RENTAL COMPLEX.

COMMENT: This subsection prohibits Smoking inside all existing Units in a Rental Complex, but provides an opportunity for a Landlord to allow Smoking in some of the existing Units. A potential incentive for a Landlord to establish 100% nonsmoking Units is that only limited action is required by a Landlord to set this standard. Substantial action is required if the Landlord wishes to “opt out” of the 100% default established in subsection (a).

If your community wants to prohibit Smoking in all existing Units of Multi-Unit Residences regardless of Landlord preference, omit subsection (d) entirely and all references to subsection (d) in subsections (a)–(c).

(a) All Units of a Rental Complex that are not New Units, including any associated exclusive-use Enclosed Areas or Unenclosed Areas, such as, for example, a private balcony, porch, deck, or patio, are hereby designated nonsmoking Units as of [ insert effective date of T AMERICAN LUNG ASSOCIATION @
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Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 18 Technical Assistance Legal Center—revised December 2009 ordinance + 120 days ]; provided, however, that a lesser percentage of Units may be designated nonsmoking Units if a Landlord fully complies with subsection (d) below.

(b) Smoking in a designated nonsmoking Unit is a violation of this [ article / chapter ] as provided in Section [ ___ (*9) ].

(c) Except if a Landlord fully complies with subsection (d) below, at least sixty (60) days before [ insert effective date of ordinance + 120 days ], the Landlord shall provide each tenant with:

(1) a written notice clearly stating that all Units, including the tenant’s Unit, are designated nonsmoking Units and that Smoking in a Unit will be illegal as of [ insert date specified in Sec. *9(c) ]; and

(2) a copy of this [ article / chapter ].

(d) A Landlord may choose to designate fewer than one-hundred percent (100%) of existing Units that are not New Units of a Rental Complex as nonsmoking Units by fully complying with the requirements stated in subsections (1) - (7) below. However, subsection (a) above shall apply whenever a Landlord takes no action or only partially complies with the requirements of this subsection.

COMMENT: This subsection provides a step-by-step approach to designating nonsmoking and Smoking-allowed Units in Rental Complexes. This ordinance contains a recommended
implementation process that allows tenants and Landlords to become familiar with the new Smoking restrictions over a 12- month period. Here is a timeline illustrating the implementation schedule:

Implementing a smokefree housing law by using a reasonable phase-in period followed by a certain date on which everyone is required to abide by the law is generally perceived to be the most fair approach—balancing public health needs against the potential inconvenience the ordinance puts on Smoking tenants and Landlords who must implement the new policy. For legal reasons, a 12-month phase-in period strikes a good balance between the potential legal rights of tenants under existing agreements and the legal authority of Landlords to modify those agreements as this ordinance requires.

Your community may want to provide additional
recommendations or guidelines for Landlords on what other steps a Landlord might want to take when designating
Timeline to Designate Nonsmoking Units
Landlord notifies tenants
of proposed designation
Landlord notifies tenants
of final designation ..., ________________________ _
mm
T AMERICAN LUNG ASSOCIATION @
Landlord submits designation
documents to city / county
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Alternative approaches to the 12-month phase-in period could include multiple-year phase-in periods based on tenant turnover, waivers to smokers who request them, and permanent
grandfathering. A 12-month phase-in approach, however, is a more effective strategy. Please contact TALC for assistance if an alternative to the phase-in period is desired.

(1) The Landlord shall permanently designate up to one hundred percent (100%) of Units, but no less than [ eighty percent (80%) ] of Units, including, for example, any associated exclusive-use Enclosed Areas or Unenclosed Areas, such as, for example, a private balcony, porch, deck, or patio, as nonsmoking Units by the Landlord.

(2) To the maximum extent practicable, nonsmoking Units must be grouped together both horizontally and vertically and physically separated from Units where Smoking may be allowed. Where possible all Units where Smoking may be allowed shall be in a single building of a multi-building Multi-Unit Residence.

(3) No later than [ insert effective date of ordinance + 120 days ] a Landlord who chooses
to designate fewer than 100% of the Units of a Multi-Unit Residences as nonsmoking shall submit the following in accordance with Section [ ___ (*10) ]:

(i) a description of each designated nonsmoking Unit sufficient to identify the Unit; and

(ii) a diagram depicting the location of the designated nonsmoking Units in relation to all other Units.

(4) At least sixty (60) days before submitting the nonsmoking Unit designations required by subsection (3) above, the Landlord shall provide each tenant with:

(i) a written notice of the proposed designations, clearly stating that Smoking in a Unit which is designated as a nonsmoking Unit will be illegal as of [ insert date specified in Section *9(c) ], and inviting comments on the proposed designations of nonsmoking Units within the requisite timeline;

(ii) a diagram depicting the location of the designated nonsmoking Units in relation to all other Units; and

(iii) a copy of this [ article
/ chapter ].

COMMENT: This subsection requires Landlords to provide tenants notice of proposed nonsmoking designations before the
designations are final. The intent is to allow tenants to provide comments to the Landlord so that the Landlord can
accommodate tenant wishes, if possible. Note, however, that the Landlord is not obligated to make changes based on tenants’ comments. Existing law prohibits a Landlord from making designations adverse to a tenant’s interests for a discriminatory or other illegal purpose.

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A copy of this ordinance is required to accompany the notice of a nonsmoking Unit designation so that tenants may asses for themselves their full rights and obligations. Alternatively, the ordinance can be reworded so that a summary of tenants’ rights and obligations is required instead of (or in addition to) a copy of the ordinance itself. If this approach is adopted, steps should be taken to ensure the accuracy and appropriateness of any summary, as summaries are inherently incomplete.

(5) A Landlord may modify the proposed designations based upon comments received from tenants.

(6) At least thirty (30) days before submitting the final designations of nonsmoking Units required by subsection (3) above, the Landlord shall provide all tenants written notice of the final designations clearly stating that Smoking in a designated nonsmoking Unit will be illegal as of [ insert date specified in Section *9(c) ], and a copy of the final documents that will be submitted pursuant to Section [ ___ (*10) ] of this [ article / chapter ]. These final designations
may differ from the proposed designations on which tenants were invited to comment.

(7) A Unit in a Rental Complex for which a Landlord is required to submit information pursuant to Section [ ___ (*10) ] of this [ article
/ chapter ] but for which such information,
for any reason, is not fully and timely submitted is hereby designated as a nonsmoking Unit as of [ insert effective date of ordinance + 120 days
].

Sec. [ ____ (*7) ]. REQUIRED AND IMPLIED LEASE TERMS FOR ALL NEW AND EXISTING UNITS IN RENTAL COMPLEXES.

COMMENT: This section requires that Smoking restrictions be included as part of the lease. Note that the term “Unit” includes the defined term “New Unit,” so whenever the term Unit is used in the ordinance, it includes all Units, both existing and new.

By including these provisions in lease agreements, Landlords may enforce the Smoking restrictions just like any other condition in the lease, such as common provisions regarding noise, use of laundry facilities, and damage to common areas. Further, by including the “third-party beneficiary” provision, other tenants will be able to enforce a lease’s Smoking restrictions. The Landlord and other tenants become an alternate enforcement authority for the Smoking restrictions in addition to possible local government enforcement of the law (see Section *12 Enforcement) and optional private citizen enforcement (see Section *13 Private Enforcement).

Note also that after a Landlord amends an existing rental agreement or enters into a new lease to include these required terms, Smoking in violation of those terms becomes illegal pursuant to Section *9, and not just a material breach of the lease.

(a) Every lease or other rental agreement for the occupancy of a Unit in a Rental Complex, including, for example, New Units and existing Units, entered into, renewed, or continued month-to-month after [ insert effective date of ordinance ], shall include the provisions set forth T AMERICAN LUNG ASSOCIATION @
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Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 21 Technical Assistance Legal Center—revised December 2009 in subsection (b) below on the earliest possible date when such an amendment is allowable by law when providing the minimum legal notice.

COMMENT: This provision calls for the Landlord to amend a rental agreement at the first opportunity. It is also designed to provide tenants with adequate legal notice of the pending change in their lease terms. The overall objective is to insert the new terms into every lease within one year after the effective date of ordinance (assuming leases are for one year or less).

(b) Every lease or other rental agreement for the occupancy of a Unit in a Rental Complex, including, for example, New Units and existing Units, entered into, renewed, or continued month-to-month after [ insert effective date of ordinance ], shall be amended to include the following provisions:

COMMENT: The following subsections contain both an explicit directive regarding the legal effect the required clause must achieve followed by an example clause based on the directive.

Because leases vary in terms, format, and language, it is not possible to provide verbatim wording that can be easily dropped into any lease. These clause requirements provide a Landlord with needed flexibility to conform an existing lease while using terms consistent with the rest of the lease. In many cases, a Landlord can probably just use the example language provided with minimal changes.

(1) A clause providing that as of [ insert effective date of ordinance + one year ], it is a material breach of the agreement to allow or engage in Smoking in the Unit unless the Landlord has supplied written notice that the Unit has not been designated a nonsmoking Unit and no other prohibition against Smoking applies. Such a clause might state, “It is a material breach of this agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to engage in smoking in the unit as of [ insert effective date of ordinance + one year
] unless landlord has provided written notice
that the unit has not been designated a nonsmoking unit and smoking in the unit is not otherwise prohibited by this agreement, other agreements, or by law.”

(2) A clause providing that it is a material breach of the agreement for tenant or any other Person subject to the control of the tenant or present by invitation or permission of the tenant to engage in Smoking in any Common Area of the property other than a designated Smoking area. Such a clause might state, “It is a material breach of this agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to engage in smoking in any common area of the property, except in an outdoor designated smoking area, if one exists.”

(3) A clause providing that it is a material breach of the agreement for tenant or any other Person subject to the control of the tenant or present by invitation or permission of the tenant to violate any law regulating Smoking while anywhere on the property. Such a clause might state, “It is a material breach of this agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to violate any law regulating smoking while anywhere on the property.”

(4) A clause expressly conveying third-party beneficiary status to all occupants of the Rental Complex as to the Smoking provisions of the agreement. Such a clause might state, T AMERICAN LUNG ASSOCIATION @
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Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 22 Technical Assistance Legal Center—revised December 2009 “Other occupants of the property are express third-party beneficiaries of those provisions in this agreement that concern smoking. As such, other occupants of the property may seek to enforce such provisions by any lawful means, including by bringing a civil action in a court of law.”

COMMENT: Declaring other residents third-party beneficiaries grants people living in the Rental Complex limited rights to enforce the Smoking restrictions in leases. Without the declaration, other residents usually have no legal right to enforce the lease terms (because they are not a “party” to the
agreement) and the power to enforce the terms of the lease rests solely with the Landlord.

(c) Whether or not a Landlord complies with subsections (a) and (b) above, the clauses required by those subsections shall be implied and incorporated by law into every agreement to which subsections (a) or (b) apply and shall become effective as of the earliest possible date on which the Landlord could have made the insertions pursuant to subsections (a) or (b).

COMMENT: This is a back-up provision to ensure that the Smoking-related terms are included by law, even if the Landlord fails to comply with subsections (a) or (b).

(d) A tenant who breaches a Smoking provision of a lease or other rental agreement for the occupancy of a Unit in a Rental Complex, or who knowingly permits any other Person subject to the control of the tenant or present by invitation or permission of the tenant, shall be liable for the breach to: (i) the Landlord; and (ii) any occupant of the Rental Complex who is exposed to Smoke or who suffers damages as a result of the breach.

COMMENT: This provision provides other tenants legal standing to seek damages or possibly an injunction against someone
Smoking in violation of a lease term.

There are two additional enforcement mechanisms in this ordinance:

Section *12 “Enforcement” provides for traditional enforcement by local government officials.

Section *13 “Private Enforcement” grants any member of the public the right to enforce the ordinance. Thus, a Landlord, a tenant, or a member of the public could bring a lawsuit to enforce the ordinance in either Superior Court or small claims court if Section *13 is included.

(e) This [article / chapter] shall not create additional liability in a Landlord to any Person for a tenant’s breach of any Smoking provision in a lease or other rental agreement for the occupancy of a Unit in a Rental Complex if the Landlord has fully complied with this Section and Section [ __(*6)].

COMMENT: This provision expressly states that the Landlord is not the guarantor of the ordinance’s enforcement. That is, the Landlord is not contractually required to enforce the no-Smoking lease terms and other residents cannot force the Landlord to act against a tenant who violates one. Including this provision can be extremely important in efforts to gain Landlord support for the T AMERICAN LUNG ASSOCIATION @
www.lung.org 1-800-LUNG-USA
Guide to Asthma Policy for Housing and Schools
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 23 Technical Assistance Legal Center—revised December 2009 ordinance.

(f) Failure to enforce any Smoking provision required by this [ article / chapter ] shall not affect the right to enforce such provision in the future, nor shall a waiver of any breach constitute a waiver of any subsequent breach or a waiver of the provision itself.

COMMENT: This is a technical legal provision designed to prevent a court from inferring a permanent waiver of a Smoking- related provision from a pattern of lax enforcement.

Sec. [ ____ (*8) ]. ADDITIONAL DUTIES OF A LANDLORD OF A RENTAL COMPLEX WITH LESS THAN ONE HUNDRED PERCENT (100%) NONSMOKING UNITS.

A Landlord of a Rental Complex with less than one hundred percent (100%) nonsmoking Units shall provide to every prospective tenant, prior to entering into a new lease or other rental agreement for the occupancy of a Unit in a Rental Complex, a copy of the designation documents submitted pursuant to Section [ ___ (*6) ] describing each designated nonsmoking Unit with an accompanying diagram depicting the location of nonsmoking Units in relation to all other Units and any designated Smoking areas.

COMMENT: This section requires the Landlord to notify
prospective tenants of the location of nonsmoking Units to Units where Smoking may be permitted. It does not require the Landlord to inquire as to any tenant’s personal Smoking habits.

Instead, the Landlord merely identifies for prospective tenants which Units allow Smoking and which do not.

If the community decides to make 100% of existing Units in Rental Complexes nonsmoking with no Landlord election, this Section can be omitted.

Sec. [ ____ (*9) ]. SMOKING PROHIBITED BY LAW IN CERTAIN AREAS.

COMMENT: This section consolidates the actual Smoking
prohibitions. Rather than state that Smoking is prohibited numerous times in various sections of the ordinance, those sections simply refer the reader to this Section *9. One benefit of consolidation is a uniformity of the Smoking prohibitions between sections.

(a) Smoking in a Common Area, on or after [ insert effective date of ordinance ], other than in a designated Smoking area established pursuant to Section [ ___ (*2) ], is a violation of this [ article
/ chapter ].

(b) Smoking in a New Unit, on or after [ insert effective date of ordinance ], is a violation of this [ article
/ chapter ].

(c) Smoking in a designated nonsmoking Unit, on or after [ insert effective date of ordinance + 1 year
], is a violation of this [ article / chapter ].

(d) No Person shall engage in Smoking in any Nonsmoking Area.

T AMERICAN LUNG ASSOCIATION @
www.lung.org 1-800-LUNG-USA
Guide to Asthma Policy for Housing and Schools
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 24 Technical Assistance Legal Center—revised December 2009

COMMENT: Note that whenever a lease contains a no- Smoking term, this provision makes Smoking in such a Unit against the law in addition to being a violation of the lease. This provision also applies to any nonsmoking rules or CC&Rs for a Common Interest Complex.

Thus, when a Landlord amends an existing rental agreement or creates a new one to include the lease terms required by Section *7, Smoking in violation of those lease terms then becomes illegal, not just a lease violation.

(e) No Person with legal control over any Nonsmoking Area shall permit Smoking in the Nonsmoking Area, except as provided in Section [ ___ (*7)(e) ].

COMMENT: This provision makes Smoking in a nonsmoking area or Unit against the law, even if an area is made nonsmoking only by a lease term (rather than an ordinance, for example). It also makes a tenant responsible for Smoking by his or her guests.

The exception refers back to the subsection limiting a Landlord’s liability for a tenant’s breach of a no-smoking term.

Sec. [ ____ (*10) ]. PROCEDURES AND REQUIREMENTS FOR MANDATED SUBMISSIONS.

(a) Submissions required by this [ article / chapter ] must be received by [ insert the municipal office or official who will administer the record-keeping requirements of the ordinance ] on or before any applicable due date. The submissions shall include all material and information required by this [ article / chapter ] and such other materials and information as [ insert the designated municipal office or official ] deems necessary for the administration and enforcement of this [ article / chapter ].

COMMENT: The community should fill in the blanks with the appropriate office, official, or department that can accommodate the record-keeping requirements of this ordinance and that can handle the anticipated requests from the public for access to the information. Communities will likely differ as to which department is best suited to fill this role.

(b) All material and information submitted pursuant to this [ article / chapter ] constitute
disclosable public records and are not private or confidential.

Sec. [ ____ (*11) ]. SMOKING AND SMOKE GENERALLY.

(a) The provisions of this [ article
/ chapter ] are restrictive only and establish no new rights for a Person who engages in Smoking. Notwithstanding (i) any provision of this [ article / chapter ] or other provisions of this Code, (ii) any failure by any Person to restrict Smoking under this [ article / chapter ], or (iii) 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, for example, rights in nuisance, trespass, property damage, and personal injury or other legal or equitable principles.

T AMERICAN LUNG ASSOCIATION @
www.lung.org 1-800-LUNG-USA
Guide to Asthma Policy for Housing and Schools
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 25 Technical Assistance Legal Center—revised December 2009

COMMENT: The subsection spells out that the intent of this ordinance is to create new smokefree areas and to enhance the right of nonsmokers to smokefree environments. This ordinance does not provide smokers with any “safe harbors” from existing laws that might already impose potential liability for Smoking.

Subsection (a) does not expand traditional nuisance law in any way, and should generally be included in all ordinances based on this model. Subsection (c) below does potentially expand traditional nuisance law.

(b) Notwithstanding any other provision of this [ article / chapter ], Smoking marijuana for medical purposes as permitted by California Health and Safety Code sections 11362.7 et seq. is not prohibited by this [ article / chapter ].

(c) For all purposes within the jurisdiction of the [ City / County of ____ ], nonconsensual exposure to Smoke [ occurring on or drifting into residential property ] is a nuisance, and the uninvited presence of Smoke on [ residential ] property is a nuisance and a trespass.

COMMENT: The declaration in subsection (c) that Smoke is a nuisance extends far beyond the residential context, unless limited by including the optional language in brackets. Once Smoke 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 Smoke 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 then to prove that such exposure is an unjustified intrusion or hazard.

California Government Code section 38771 explicitly authorizes cities to declare nuisances by ordinance. Counties may declare a nuisance pursuant to the broad police power set forth in the California Constitution, article XI, section 7.

Sec. [ ____ (*12) ]. PENALTIES AND ENFORCEMENT.

(a) The remedies provided by this [ article
/ chapter ] are cumulative and in addition to any
other remedies available at law or in equity.

COMMENT: The following provisions are designed to offer a variety of options to the drafter and to the enforcing agency.

Drafters may choose to include some or all of these options.

Once the ordinance is enacted, the enforcing agency will have the discretion to choose which enforcement tools to use in any given case. As a practical matter, these enforcement options would not be applied in a single case, although multiple remedies might be used against a particularly egregious violator over time.

(b) Every instance of Smoking in violation of this [ article / chapter ] is an infraction subject
to a [ one hundred dollar ($100) ] fine. Other violations of this [ article / chapter ] may, in the discretion of the [ City Prosecutor / District Attorney ], be prosecuted as infractions or T AMERICAN LUNG ASSOCIATION @
www.lung.org 1-800-LUNG-USA
Guide to Asthma Policy for Housing and Schools
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 26 Technical Assistance Legal Center—revised December 2009 misdemeanors when the interests of justice so require. Enforcement of this chapter shall be the responsibility of [ ____ ]. In addition, any peace officer or code enforcement official also may enforce this chapter.

COMMENT: The first sentence establishes the penalty for the core type of violation: Smoking where it is prohibited. The fine amount can be modified but cannot exceed $100 for a first infraction. (See California Government Code section 36900.) It is separated from the main enforcement provision that follows so that law enforcement officers can simply write a ticket for illegal Smoking.

The second sentence, sometimes called a “wobbler,” affords the prosecuting attorney discretion whether to pursue a violation as an infraction (like a parking ticket) or a misdemeanor (a crime punishable by up to a $1,000 fine and/or six months in County Jail). Alternatively, violations can be set as either an infraction or a misdemeanor in all circumstances. Misdemeanors are more serious crimes for which a jury trial is available to defendants.

Fines and other criminal penalties are established by the Penal Code and are typically reflected in the general punishments provision of a local code.

This provision also designates a primary enforcement agency, which is recommended, but remains flexible by permitting any enforcement agency to enforce the law.

(c) Violations of this [ article
/ chapter ] are subject to a civil action brought by the [ City / County of ____ ], punishable by a civil fine not less than [ two hundred fifty dollars ($250) ] and not exceeding [ one thousand dollars ($1,000) ] per violation.

COMMENT: 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.)

(d) No Person shall intimidate, harass, or otherwise retaliate against any Person who seeks compliance with this [ article / chapter ]. Moreover, no Person shall intentionally or recklessly expose another Person to Smoke in response to that Person’s effort to achieve compliance with this [ article / chapter ]. Violation of this subsection shall constitute a misdemeanor.

(e) Causing, permitting, aiding, or abetting a violation of any provision of this [ article / chapter ] shall also constitute a violation of this [ article / chapter ].

COMMENT: This is standard language that is typically included in a city or county code and may be omitted if duplicative of existing code provisions.

(f) Any violation of this [ article / chapter ] is hereby declared to be a public nuisance.

COMMENT: By expressly declaring that a violation of this ordinance is a nuisance, this provision allows enforcement of the ordinance by the city or county via the administrative nuisance abatement procedures commonly found in municipal codes.

Note that this declaration merely says that violating the T AMERICAN LUNG ASSOCIATION @
www.lung.org 1-800-LUNG-USA
Guide to Asthma Policy for Housing and Schools
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 27 Technical Assistance Legal Center—revised December 2009 ordinance qualifies as a nuisance (e.g., when Smoking in a nonsmoking area, the violation is the nuisance, not the Smoke).

It is not the same thing as a local ordinance declaring Smoke a nuisance. Please see Section *11(c) for the declaration that nonconsensual exposure to secondhand is a nuisance.

(g) In addition to other remedies provided by this [ article / chapter ] or otherwise available at law or in equity, any violation of this [ article / chapter ] may be remedied by a civil action brought by the [ City Attorney / County Counsel ], including, without limitation, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.

COMMENT: 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 as described in IT Corp. v. County of Imperial , 35 Cal.3d 63 (1983).

A public agency should think carefully about the nuisance abatement procedure it chooses in enforcing this ordinance after it is adopted. A local government may provide for treble damages for the second or subsequent nuisance abatement judgment within a two-year period, as long as the ordinance is enacted pursuant to Government Code section 38773.7. Treble damages are not available, however, under the alternative nuisance abatement procedures in Government Code
section 38773.1 and Health & Safety Code section 17980.

Government Code section 38773.5 establishes a procedure for nuisance abatement where the cost of the abatement can be collected via the property tax roll as a special assessment against the property on which the violation occurs.

[ (h) Any Person, including a legal entity or organization, acting for the interests of itself, its members, or the general public may bring a civil action for injunctive relief to prevent future such violations or sue to recover such actual or statutory damages as he or she may prove. ]

COMMENT: If Section *13 “Private Enforcement” is not included, consider including this simple provision, which provides a far more limited type of private enforcement. If Section *13 is included, this provision should be omitted.

[ (i) Except as otherwise provided, enforcement of this [ article / chapter ] is at the sole
discretion of the [ City / County of ____ ]. Nothing in this [ article / chapter ] shall create a right of action in any Person against the [ City / County of ____ ] or its agents to compel public enforcement of this [ article / chapter ] against private parties. ]

COMMENT: This is an optional provision, which makes clear that a City or County cannot be liable to any Person for failure to enforce the Smoking restrictions in this ordinance.

Sec. [ ____ (*13) ]. PRIVATE ENFORCEMENT.

T AMERICAN LUNG ASSOCIATION @
www.lung.org 1-800-LUNG-USA
Guide to Asthma Policy for Housing and Schools
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 28 Technical Assistance Legal Center—revised December 2009 COMMENT: This “Private Enforcement” provision makes it possible for any member of the public to sue violators of this ordinance.

This “private right of action” section provides an avenue for private persons to file suit. Such a right was curtailed after the passage of Proposition 64 in November 2004, which prohibited the use of California Business and Professions Code section 17200 by private persons to file suits on behalf of the public.

However, nothing in Proposition 64 prohibits local governments from creating a private right of action to enforce violations of local law.

Note that although this section is titled “Private Enforcement,” the city or county itself can also use these provisions if it deems them preferable to other enforcement options or if it seeks to impose additional sanctions.

For further explanation of the rationale behind and potential impact of this provision, please see TALC’s memorandum
entitled “The Benefits of Adding a Private Right of Action Provision to Local Tobacco Control Ordinances” available from our website at www.phlpnet.org/tobacco-control .

If this “Private Enforcement” provision is not included, consider including the optional language in Section *12(h).

(a) Any Person, including a legal entity or organization or a government agency, acting for the interests of itself, its members, or the general public may bring a civil action to enforce this [ article / chapter ]. Upon proof of a violation, a court shall award the following:

COMMENT: This provision allows a Person to sue a violator if the Person has been personally harmed or if the Person wants to act as a private attorney general by holding the violator accountable on behalf of the general public.

(1) Damages in the amount of either:

(i) upon proof, actual damages; or

(ii) with insufficient or no proof of damages, $[ 500
] for each violation of this
[ article / chapter ] (hereinafter “Statutory Damages”). Each day of a continuing violation shall constitute a separate violation. Notwithstanding any other provision of this [ article / chapter ], no Person suing on behalf of the general public shall recover Statutory Damages based upon a violation of this [ article / chapter ] if a previous claim brought on behalf of the general public by another Person for Statutory Damages and based upon the same violation has been adjudicated, whether or not the Person bringing the subsequent claim was a party to the prior adjudication.

COMMENT: This provision allows for the collection of damages even if it is difficult or impossible to prove the actual amount of damages resulting from a given violation. Statutory damages can add up to a substantial sum because each day of a continuing violation is a separate violation. However, if an action is brought in small claims court, the total amount of damages sought must fall below $5,000 (or $7,500 if the small claims suit is brought by a natural person). So, when considering the amount at which to set statutory damages, it is worth considering whether a typical T AMERICAN LUNG ASSOCIATION @
www.lung.org 1-800-LUNG-USA
Guide to Asthma Policy for Housing and Schools
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 29 Technical Assistance Legal Center—revised December 2009 case brought under the ordinance will involve a claim for less than $5,000 (or $7,500). Note that this provision protects a person from being sued multiple times on behalf of the general public for the same violation and must do so to prevent the ordinance from being challenged as unconstitutionally punitive.

(2) Exemplary damages, where it is proven by clear and convincing evidence that the defendant is guilty of oppression, fraud, malice, retaliation, or a conscious disregard for the public health.

COMMENT: Exemplary damages are also known as punitive
damages. They are designed to punish and deter a defendant in a tort case who has acted in an outrageous manner.

(b) The Person may also bring a civil action to enforce this [ article / chapter ] by way of a conditional judgment or an injunction. Upon proof of a violation, a court shall issue a conditional judgment or an injunction.

COMMENT: In order to get an injunction, a plaintiff would have to sue in another division of superior court and not the small claims division. However, a plaintiff could seek a conditional judgment in small claims court. Note that the difference between an injunc- tion and a conditional judgment is that with the former, the defendant is directly ordered to do something (or to refrain from doing something). With a conditional judgment, however, the defendant is given a choice between fulfilling certain conditions (e.g., ceasing the illegal conduct) or suffering a different judgment (e.g., paying monetary damages). (See 1 Consumer Law Sourcebook: Small Claims Court Laws and Procedures
(California Department of Consumer Affairs 2005.) A conditional judgment could serve as an alternative to damages, or it could be in addition to damages. For example, a small claims court could order some monetary damages along with a conditional judgment giving the defendant a choice between stopping the violations or paying even more money.

(c) Notwithstanding any legal or equitable bar against a Person seeking relief on its own behalf, a Person may bring an action to enforce this [ article / chapter ] solely on behalf of the general public. When a Person brings an action solely on behalf of the general public, nothing about such an action shall act to preclude or bar the Person from bringing a subsequent action based upon the same facts but seeking relief on his, her or its own behalf.

COMMENT: This is an important clause, so exercise care when considering whether to modify or eliminate it. This clause accomplishes two distinct goals:

First, the clause permits a Person with a special relationship to a particular defendant to sue the defendant even though the Person might otherwise be prohibited from doing so. Attorneys often refer to such prohibitions as legal and equitable bars . For example, a tenant may be required to arbitrate—not litigate—any disputes, such as a dispute involving Smoking in a Multi-Unit Residence. Under this clause, a tenant may be required to arbitrate any personal claims (e.g., damages for personal injury from Smoke) but can nevertheless sue the tenant violating the ordinance in court as a representative member of the general public. In such a circumstance, the Person could only make the T AMERICAN LUNG ASSOCIATION @
www.lung.org 1-800-LUNG-USA
Guide to Asthma Policy for Housing and Schools
Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 30 Technical Assistance Legal Center—revised December 2009 claims that every member of the general public could make (e.g., sue for Statutory Damages on behalf of the general public for a violation of this ordinance).

Second, the clause permits a Person who first sues solely on behalf of the general public to sue the same defendant later on any personal claims (although such personal claims might still be subject to legal or equitable bars as described above). Normally, repetitive suits based upon essentially the same facts and circumstances are prohibited. Attorneys often use the terms res judicata, collateral estoppel, or issue or claim preclusion for such prohibitions. Under this clause, however, a tenant subjected to Smoking in a Multi-Unit Residence can first sue the tenant violating the ordinance solely on behalf of the general public, receiving the statutory damages amount for each violation. If the tenant is made ill by the Smoke, she can sue the violating tenant later for personal injury.

This clause is not intended to modify well-established legal rules concerning when a plaintiff may bring personal claims. Rather, it simply reflects the reasoning that when a Person brings a claim solely on behalf of the general public, the plaintiff is acting as a private attorney general; thus, the existence of personal claims is irrelevant and such claims are unaffected.

(d) Nothing in this [ article / chapter ] prohibits a Person from bringing a civil action in small claims court to enforce this [ article / chapter ], so long as the amount in demand and the type of relief sought are within the jurisdictional requirements of that court.

COMMENT: This clause is legally superfluous, but is serves to flag for plaintiffs and courts that small claims court would be an appropriate forum for resolving disputes under this provision.

SECTION III. CONSTRUCTION, SEVERABILITY.

It is the intent of the [ City Council
/ Board of Supervisors ] of the [ City / County ] of
[___________] to supplement applicable state and federal law and not to duplicate or contradict such law and this Ordinance shall be construed consistently with that intention. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this Ordinance, or its application to any person or circumstance, is for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases of this Ordinance, or its application to any other person or circumstance. The [ City Council
/ Board of Supervisors ] of the [ City / County ] of
[ ____ ] 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, subsec- tions, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable.

COMMENT: This is standard language. Often this “boilerplate” is found at the end of an ordinance, but its location is irrelevant.

T AMERICAN LUNG ASSOCIATION @
July 2020
www.publichealthlawcenter.org/caltobacco
Introduction
This Smoke-free Multiunit Housing
Model Ordinance was prepared for
California cities and counties interested
in creating smoke-free multiunit
residences by prohibiting smoking
on the premises. This 2020 model
ordinance builds on the ordinance
developed by ChangeLab Solutions and
released in 2018. The Public Health
Law Center acknowledges the excellent
work done by ChangeLab Solutions in
creating the original ordinance.

This model ordinance is based on an
independent and objective analysis
of the relevant law, evidence, and
available data, as well as work done for the
California T obacco 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.

C ustomizing 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.

SMOKE-FREE MULTIUNIT

HOUSING MODEL ORDINANCE

A PUBLIC HEALTH
~ LAW CENTER
at Mitchell Hamline School of Law / T
American
Lung Association~
California /
Law and Policy Partnership to End the Commercial Tobacco Epidemic .,.,,,..,. _____________________________________ _
Smoke-free Multiunit Housing Model Ordinance 2
www .publichealthlawcenter.org/caltobacco
In some instances, blanks (such as [ _____________ ]) prompt you to customize the language t
o fit your community’s needs. In other instances, the ordinance offers you a choice of options (such as [

choice one / choice two

]). Some options are followed by a comment that describes the legal provisions in more detail. A degree of customization is always necessary to make sure the ordinance is consistent with a community’s existing laws. Such customization also ensures that communities are using this model ordinance to address local needs and engender health equity.

T ips for Using This Model Ordinance
The best possible world is one without the death and health harms associated with commercial tobacco use. Communities differ on their readiness and willingness to adopt certain commercial tobacco control policies that are intended to help make that world a reality. Accordingly, this model ordinance represents a balance between state and federal minimum standards, best public health policy practices, and practicality for city governments in California. This model ordinance contains several policy components that communities may or may not choose to adopt at this time that may go beyond minimum state and federal requirements.

While the Public Health Law Center does not lobby, advocate, or directly represent communities, we can provide assistance through our publications and referrals to experts in the field. Education, stakeholder and community engagement, and a strong advocacy plan are key steps in the adoption of effective commercial tobacco control policies. If a community is unaware of the resources available to it for engaging the community and developing an advocacy plan, or if a city is considering adopting an ordinance and is interested in learning about the range of resources available, please contact the Public Health Law Center. If you have any questions about this ordinance, you can reach us at www.publichealthlawcenter.org.

This publication was prepared by the Public Health Law Center, a nonprofit organization that provides information and legal technical assistance on issues related to public health. The Center does not provide legal representation or advice. The information in this document should not be considered legal advice. This model ordinance was made possible by funds received from Grant Number 19-10229 with the California Department of Public Health, California T obacco Control Program, and the American Lung Association in California.

July 2020
lfJt.. PUBLIC HEALTH
~ LAWCENTER
at Mitchell Hamline School of Law
/ f
American
Lung Association .

California
.,.,,,..,. _____________________________________ _
Smoke-free Multiunit Housing Model Ordinance 3
www .publichealthlawcenter.org/caltobacco
AN ORDINANCE OF THE [ CITY/COUNTY OF _______ ] P ROHIBITING

SMOKING IN AND AROUND MULTIUNIT RESIDENCES AND
AMENDING THE [
_______
] MUNICIPAL CODE
The [ city council/ county board of supervisors ] of the [ city/ county of _______ ] does ordain as f
ollows:

SECTION I. [ See Appendix A: Findings ]
Note
A findings section is important because it provides the evidentiary basis for the proposed commercial tobacco control policies and demonstrates the jurisdiction’s reasoning for adopting specific provisions. This findings section reflects language appropriate for all of the provisions suggested. The findings section is part of the ordinance and legislative record, but it usually does not become codified in the municipal code. An ordinance based on this model ordinance should include findings of fact — data, statistics, relevant epidemiological information, for instance — that support the purposes of this ordinance, as well as any legal precedent that directly supports the ordinance. In addition to serving an educational purpose and building support for the ordinance, the findings can also serve a legal purpose. If the ordinance is challenged in court, the findings are an admissible record of the factual determinations made by the legislative body when considering the ordinance. Courts will generally defer to legislative determinations of factual issues, which often influence legal conclusions. A list of findings supporting this model ordinance appears in “ Appendix A: Findings.” Jurisdictions may select findings from that list to insert here, along with additional findings on local or regional conditions, outcomes, and issues that help make the case for the law.

SECTION II. [ Article/Chapter ] of the [ Ci t y/Co u nt y of ____ ] Municipal/ County Code is hereby amended to read as follows:

Sec. 1. DEFINITIONS. For the purposes of this [ article/ chapter ] the following definitions shall g
overn unless the context clearly requires otherwise:
(A) “C
ommon 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.

July 2020
lfJt.. PUBLIC HEALTH
~ LAWCENTER
at Mitchell Hamline School of Law
/ f
American
Lung Association .

California
.,.,,,..,. _____________________________________ _
Smoke-free Multiunit Housing Model Ordinance 4
www .publichealthlawcenter.org/caltobacco
(B) “C ommon interest development” means:
(1)
A c
ommunity apartment project as defined in California Civil Code section 4105, or any successor legislation;
(2)
A c
ondominium project as defined in California Civil Code section 4125, or any successor legislation;
(3)
A planned de
velopment as defined in California Civil Code section 4175, or any successor legislation; and
(4)
A st
ock cooperative as defined in California Civil Code section 4190, or any successor legislation.
(C)
“Electr
onic smoking device” means any device that may be used to deliver any aerosolized or vaporized substance to the person inhaling from the device, including, but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah. (D)
“Home o
wners’ association” or “HOA” means an organization or entity established for the purpose of managing or maintaining a common interest development. A homeowners’ association shall also mean “association” as defined in California Civil Code section 4080, or any successor legislation.
(E)
“Landlor
d” means any person or agent of a person who owns, manages, or is otherwise legally responsible for a unit in a multiunit residence that is leased to a residential tenant. For purposes of this ordinance, a tenant who sublets their unit (e.g., a sublessor) is not a landlord. (F)
“
Multiunit Residence” means property containing two or more units, including, but not limited to, apartment buildings, common interest developments, senior and assisted living facilities, and long-term health care facilities. [

Multiunit Residences do not include the
following:
(1)
a hot
el or motel that meets the requirements of California Civil Code section 1940(b)(2); (2)
a mobile home park;
(3)
a campgr
ound;
(4)
a marina or por
t;
(5)
a single-
family home, except if used as a health care facility subject to licensing requirements; and
July 2020
lfJt.. PUBLIC HEALTH
~ LAWCENTER
at Mitchell Hamline School of Law
/ f
American
Lung Association .

California
.,.,,,..,. _____________________________________ _
Smoke-free Multiunit Housing Model Ordinance 5
www .publichealthlawcenter.org/caltobacco
(6) a single- family home with an accessory dwelling unit or second unit permitted pursuant to California Government Code sections 65852.1, 65852.2, or 65852.22 or an ordinance of the [

city/ county

] adopted pursuant to those sections, except where
the accessory dwelling unit or second unit is rented or is used as a health care facility subject to licensing requirements.

]
Note
This definition is used in conjunction with the definition of unit in this model ordinance, which makes clear that this term is limited to dwelling spaces.

Because the definition of unit in this ordinance is very broad, a community may want to limit the types of dwelling places covered by the smoke-free housing ordinance. Hotels and motels are included in the list of optional exemptions because many communities regulate smoking in these facilities using a smoke-free workplace ordinance, but there is no legal reason hotels and motels could not be made completely smoke-free using this model ordinance.

Single-family residences are suggested as an exemption because the definition of unit in this ordinance includes individual bedrooms in a single-family home. Thus, a two-bedroom free-standing house would be a multiunit residence per the definitions in this ordinance, unless the exemption is included. With the new accessory dwelling unit (ADU) law taking effect Jan. 1, 2020, the optional language would make clear that the ordinance only applies to ADUs where they are rented or used as a licensed health care facility.

Note that the definition of multiunit residence without any exemptions includes the following types of dwelling places: apartments, condominium projects, townhomes, stock cooperatives, and co-housing; affordable housing (for seniors, disabled tenants, Section 8, etc.); long-term health care facilities, assisted living facilities, hospitals, and family support facilities; hotels, motels, single-room occupancy facilities, dormitories, and homeless shelters; mobile home parks, campgrounds, marinas, and ports; as well as single-family homes and single-family homes with an in-law unit.

The U.S. Department of Housing and Urban Development requires public housing agencies to adopt a policy prohibiting smoking in all indoor areas, including residential units, and outside spaces within 25 feet of indoor areas.

July 2020
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at Mitchell Hamline School of Law
/ f
American
Lung Association .

California
.,.,,,..,. _____________________________________ _
Smoke-free Multiunit Housing Model Ordinance 6
www .publichealthlawcenter.org/caltobacco
(G) “Nonsmoking Ar ea” means any area in which smoking is prohibited by (1)
this
[

article/ chapter

] or other law;
(2)
binding agr
eement relating to the ownership, occupancy, or use of real property; or (3)
a per
son with legal control over the area.
(H)
“P
erson” means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity, including government agencies.
(I)
“Smoking” means:
(1)
inhaling, e
xhaling, or burning, any tobacco, nicotine, cannabis, or plant product, whether natural or synthetic;
(2)
carrying an
y lighted, heated, or activated tobacco, nicotine, marijuana, or plant product, whether natural or synthetic, intended for inhalation; or (3)
using an “
electronic smoking device.”
[Smoking does not include the use of traditional, sacred tobacco as part of an Indigenous practice or a lawfully recognized religious, spiritual, or cultural ceremony or practice.]
Note
Some smoke-free policies provide exceptions for traditional, ceremonial, and sacred uses of tobacco practiced by some tribal communities, while prohibiting the use of commercial tobacco. If you would like more information about this topic, please visit keepitsacred.org.
(J)
“Unit” means a per
sonal dwelling space, even one lacking cooking facilities or private plumbing facilities, and includes any associated exclusive-use area, such as a private balcony, porch, deck, or patio. “Unit” includes, without limitation, an apartment; a condominium; a townhouse; a room in a senior facility; a room in a long-term health care facility, assisted living facility, community care facility, or hospital; a room in a hotel or motel; a dormitory room; a room in a single-room occupancy facility; a room in a homeless shelter; a mobile home; a camper vehicle or tent; a single-family home; and an accessory dwelling unit or second unit.

July 2020
lfJt.. PUBLIC HEALTH
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at Mitchell Hamline School of Law
/ f
American
Lung Association .

California
.,.,,,..,. _____________________________________ _
Smoke-free Multiunit Housing Model Ordinance 7
www .publichealthlawcenter.org/caltobacco
Sec. 2. SMOKING RESTRICTIONS
(A) Eff
ective 90 days from [

effective date

], smoking is prohibited anywhere on the premises
of a multiunit residence, including units, common areas, and other outdoor areas. (B)
No per
son with legal control over any multiunit residence shall permit smoking anywhere on the premises of the multiunit residence.

Note
The strongest approach from a public health standpoint is to prohibit smoking anywhere on the premises. However, if a jurisdiction wants to allow some outdoor smoking, the narrowest way to do so would be to include a designated smoking area (DSA). Again, from a public health standpoint, the preferable approach would be to allow on the premises only one DSA that is required to be at least 25 feet from interior areas and from areas frequented by children. Here is sample language that would allow this:

Replace the current subsection Sec. 2(B) with the following new subsections:
(b)
Not
withstanding subsection (a), smoking is permitted in designated smoking areas if they meet the following conditions:
(1)
Must not be an enclosed ar
ea;
(2)
Must be at least t
wenty-five (25) feet from any:
(a)
out
door recreation area such as a tennis court, swimming pool, and picnic area; or
(b)
out
door area primarily used by children such as a playground; (3)
Must ha
ve a clearly marked perimeter; and
(4)
Must be identified b
y conspicuous signs.
(C)
No per
son 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)
July 2020
lfJt.. PUBLIC HEALTH
~ LAWCENTER
at Mitchell Hamline School of Law
/ f
American
Lung Association .

California
.,.,,,..,. _____________________________________ _
Smoke-free Multiunit Housing Model Ordinance 8
www .publichealthlawcenter.org/caltobacco
Note (continued)
Insert as new subsection (d) in Sec. 1 (Definitions):
(D)
“Enclosed ar
ea” means all space between a floor and a ceiling that is bounded by walls, doorways, or windows, whether open or closed, covering more than 50 percent of the combined surface area of the vertical planes constituting the perimeter of the area. A wall includes any retractable divider, garage door, or other physical barrier, whether temporary or permanent.

If limiting outdoor smoking to one 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 “buffer zone.” Please contact the Public Health Law Center for more information on this approach.

Note
This model ordinance includes a 90-day phase-in of the smoke-free requirement to allow time for public officials to educate tenants and management about the requirements of the ordinance. Some smoke-free multiunit housing ordinances allow current leases to expire before the smoke-free requirements take effect in those units. We believe this approach is not necessary since lease provisions cannot conflict with local laws.

Note
The CA Labor Code Sec. 6404.5, which prohibits smoking in places of employment, exempts private residences in Sec. 6404.5(e)(6). Local jurisdictions are able to impose more restrictions on smoking than state law, but if a jurisdiction has incorporated Sec. 6404.5 and the decision is made to have this ordinance apply to residential private property rentals, then consider adding the following sentence to the above subsection (a):
“This section applies notwithstanding [

citation to local incorporation of Sec. 6404.5(e)(6)

].”
July 2020
lfJt.. PUBLIC HEALTH
~ LAWCENTER
at Mitchell Hamline School of Law
/ f
American
Lung Association .

California
.,.,,,..,. _____________________________________ _
Smoke-free Multiunit Housing Model Ordinance 9
www .publichealthlawcenter.org/caltobacco
(C) No per son with legal control over a common area in which smoking is prohibited by this [

article/ chapter

] or other law shall permit the presence of ashtrays, ashcans, or other receptacles designed for or primarily used for disposal of smoking waste within the area.

Sec. 3. REQUIRED AND IMPLIED LEASE TERMS FOR ALL NEW AND EXISTING UNITS IN MUL TIUNIT RESIDENCES.

Note
This section requires that smoking restrictions be included in a lease for the rental of a unit in any type of multiunit residence (e.g., an apartment building, common interest development, or single- room occupancy facility).

By including these provisions in lease agreements, smoking becomes a violation of both the lease and the local ordinance. Thus, landlords may enforce the smoking lease terms just like any other condition in the rental agreement. Further, by including the “third-party beneficiary” provision, other residents of the multiunit residence can enforce a lease’s smoking restrictions. (A)
A
fter [

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 pr
oviding that as of [

effective date + 90 days

], it is a material breach of the
agreement to smoke or allow smoking:
(a)
in the unit, including e
xclusive-use areas such as balconies, porches, or patios; and (b)
in an
y common area of the multiunit residence [

other than a designated smoking area

].

Sample Language
The bracketed language above and in the sample language below regarding DSAs is to be included if a building has a DSA.
“T enant 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)
July 2020
lfJt.. PUBLIC HEALTH
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at Mitchell Hamline School of Law
/ f
American
Lung Association .

California
.,.,,,..,. _____________________________________ _
Smoke-free Multiunit Housing Model Ordinance 10
www .publichealthlawcenter.org/caltobacco
Sample Language (continued)
environment. As of [ effective date + 90 days ], tenant, members of tenant’s household, and an
y guests under control of the tenant will not smoke anywhere:
(A) In the unit r
ented by tenant, including any associated balconies, decks, or patios; (B)
In the c
ommon areas of the property, including, but not limited to, lobbies, hallways, stairwells, elevators, laundry rooms, community rooms, community bathrooms, or offices; or
(C)
On the out
door grounds of the property, [

other than a designated smoking
area,

] including, but not limited to, entryways, playgrounds, pool areas, walking paths, or sitting areas.
“T enant acknowledges that a breach of the smoke-free policy may render tenant liable to landlord for the costs to repair tenant’s unit due to damage from smoke odors or residue. A breach of the smoke-free policy is a breach of the lease and grounds for immediate enforcement action, including potential termination of the lease by the landlord.
“T enant will inform tenant’s guests of the smoke-free policy. T enant 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 pr
oviding 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.”
July 2020
lfJt.. PUBLIC HEALTH
~ LAWCENTER
at Mitchell Hamline School of Law
/ f
American
Lung Association .

California
.,.,,,..,. _____________________________________ _
Smoke-free Multiunit Housing Model Ordinance 11
www .publichealthlawcenter.org/caltobacco
(3) A clause e xpressly conveying third-party beneficiary status to all occupants of the multiunit residence as to the smoking provisions of the lease or other rental agreement.

Sample Language
“T enant 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 landlor
d complies with subsection (A) above, the clauses required by those subsections shall be implied and incorporated by law into every agreement to which subsection (A) applies as of [

effective date + 90 days

].
(C)
A t
enant 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)
F
ailure to enforce any smoking provision required by this [

article/ chapter

] shall not affect
the right to enforce such provision in the future, nor shall a waiver of any breach constitute a waiver of any subsequent breach or a waiver of the provision itself.

Note
This is a technical legal provision designed to prevent a court from inferring a permanent waiver of a smoking-related provision from a pattern of lax enforcement.

Sec. [

____

(*4)]. REQUIREMENTS FOR RENTAL PROPERTIES.

The following requirements apply to multiunit residences other than units in a common interest development that are not being rented:
(A)
On or bef
ore [

effective date + 90 days

], every landlord shall deliver to each unit a copy of
this [

article/ chapter

] and a written notice clearly stating:

July 2020
lfJt.. PUBLIC HEALTH
~ LAWCENTER
at Mitchell Hamline School of Law
/ f
American
Lung Association .

California
.,.,,,..,. _____________________________________ _
Smoke-free Multiunit Housing Model Ordinance 12
www .publichealthlawcenter.org/caltobacco
(1) All units ar e designated nonsmoking units and smoking is prohibited in a unit, including any associated private balcony, porch, deck, or patio, as of [

effective date +
90 days

]; and
(2)
Smoking in all c
ommon areas or outdoor areas [

, except for specifically designated
smoking areas,

] is a violation of [

this article/ chapter

] as of [

effective date + 90 days

].
(B)
As of
[

effective date

], every landlord shall provide prospective tenants with written notice clearly stating that:
(1)
Smoking is pr
ohibited in units, including any associated private balcony, porch, deck, or patio, as of [

effective date + 90 days

]; and
(2)
Smoking
is prohibited in all common areas and outdoor areas [
,
except for specifically
designated smoking areas,

] as of [

effective date + 90 days

].
(C)
As of
[

effective date + 90 days

], the person or persons with legal control over common areas shall post and maintain clear and unambiguous “No Smoking” signs at entrances and exits, in common areas, and in conspicuous places adjoining the property grounds. In addition, as of [

effective date + 90 days

], the person or persons with legal control over the
multiunit residence shall post and maintain signs in sufficient numbers and locations in the multiunit residence to indicate that smoking is prohibited in all units. The absence of signs shall not be a defense to a violation of any provision of this [

article/ chapter

]. “No Smoking”
signs are not required inside or on doorways of units [

, except for hotels or motels that
meet the criteria listed in California Civil Code section 1940, subdivision (b)(2)

].

Note
If your community excludes hotels and motels from the definition of multiunit residences (Section *1 Definitions), then do not include the optional language in grayscale in the last sentence. (D)
Landlor
ds with knowledge of violations shall take reasonable steps to investigate and enforce the regulations, including a written notice to the resident of the landlord’s knowledge of the violation, a request to cease the violation, and the course of action to be taken if the violation is not corrected. [

The landlord shall also provide resources provided
for free by the [

city/ county

] to assist with nicotine dependence, such as referrals to quitline or online resources.

]
July 2020
lfJt.. PUBLIC HEALTH
~ LAWCENTER
at Mitchell Hamline School of Law
/ f
American
Lung Association .

California
.,.,,,..,. _____________________________________ _
Smoke-free Multiunit Housing Model Ordinance 13
www .publichealthlawcenter.org/caltobacco
Sec. [ ____ (*5)]. REQUIREMENTS FOR COMMON INTEREST DEVELOPMENTS.

T
he following requirements apply to common interest developments:
(A) On or bef
ore [

effective date + 90 days

], the HOA shall provide to all owners of units a
copy of this [

article/ chapter

] and written notice clearly stating that:
(1)
Smoking is pr
ohibited in units, including any associated private balcony, porch, deck, or patio, as of [

effective date + 90 days

]; and
(2)
Smoking
is prohibited in all common areas and outdoor areas [
,
except for specifically
designated smoking areas,

] as of [

effective date + 90 days

].
(B)
As of
[

effective date

] every seller of a unit shall provide prospective buyers or renters, a copy of this [

article/ chapter

] and written notice clearly stating that:
(1)
Smoking is pr
ohibited in units, including any associated private balcony, porch, deck, or patio, as of [

effective date + 90 days

]; and
(2)
Smoking
is prohibited in all common areas and outdoor areas [
,
except for specifically
designated smoking areas,

] as of [

effective date + 90 days

].
(C)
As of
[

effective date + 90 days

], the 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)
HO
As with knowledge of violations shall take reasonable steps to investigate and enforce the regulations, including a written notice to the resident of the HOA’s knowledge of the violation, a request to cease the violation, and the course of action to be taken if the violation is not corrected. [

The HOA shall also distribute resources provided for free by the [

city/ county

]
to assist with nicotine dependence, such as referrals to quitline or online resources.

]
July 2020
lfJt.. PUBLIC HEALTH
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at Mitchell Hamline School of Law
/ f
American
Lung Association .

California
.,.,,,..,. _____________________________________ _
Smoke-free Multiunit Housing Model Ordinance 14
www .publichealthlawcenter.org/caltobacco
Sec. [ ____ (*5)]. NUISANCE; OTHER
(A) T
he provisions of this [

article/ chapter

] shall be liberally construed to protect the public
health to the maximum effect possible. Notwithstanding (1) any provision of this [

article/
chapter

] or of this code, (2) any failure by any person to restrict smoking under this [

article/ chapter

], or (3) any explicit or implicit provision of this code that allows smoking in any place, nothing in this code shall be interpreted to limit any person’s legal rights under other laws with regard to smoking, including rights in nuisance, trespass, property damage, and personal injury or other legal or equitable principles.

Note
The subsection spells out that the intent of this ordinance is to create new smoke-free areas and enhance the right to smoke-free environments. This ordinance does not provide smokers with any “safe harbors” from existing laws that might already impose potential liability for smoking.
(B)
An
y violation of this [

article/ chapter

] is hereby declared to be a public nuisance.

Note
By expressly declaring that a violation of this ordinance is a nuisance, this provision allows enforcement of the ordinance by the city or county via the administrative nuisance abatement procedures and penalties commonly found in municipal codes. The jurisdiction may want to cross-reference its nuisance code with this section to ensure consistency. (C)
Nonc
onsensual exposure to smoke from smoking occurring on or drifting into [

residential

] property is a nuisance.

July 2020
lfJt.. PUBLIC HEALTH
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at Mitchell Hamline School of Law
/ f
American
Lung Association .

California
.,.,,,..,. _____________________________________ _
Smoke-free Multiunit Housing Model Ordinance 15
www .publichealthlawcenter.org/caltobacco
Note
The declaration in subsection (B) that smoking is a nuisance extends far beyond the residential context. Once smoking is declared a nuisance, nuisance abatement laws can be used to address smoke around doorways, at businesses, in public venues, and anywhere else it may occur. However, declaring smoking a nuisance is particularly helpful in the housing context because it eliminates the need to prove that some particular level of exposure has occurred and that such exposure is an unjustified intrusion or hazard.

California Government Code section 38771 explicitly authorizes cities to declare nuisances by ordinance. Counties may declare a nuisance pursuant to the broad police power set forth in the California Constitution, article XI, section 7.

Sec. [

____

(*8)]. PENAL TIES AND ENFORCEMENT.

Note
Enforcement of smoke-free multiunit housing policies should balance the goal of protecting residents from secondhand smoke exposure with the goal of ensuring housing stability for all residents. Several factors should be considered in this balance, such as the likely effectiveness of enforcement; equity (balancing the public health benefits of smoke-free housing policies with the risks of housing instability and associated health harms or negative social outcomes posed by different enforcement mechanisms); and the process of enforcement. Criminal and monetary administrative penalties can carry significant risks of discriminatory enforcement, financial hardship, and housing instability for residents. In the context of housing, another concern is the prospect of unintended criminal, immigration, and Due Process consequences as a result of potential increased interactions with law enforcement.

Another consideration for such criminal charges and penalties is how the criminal process may trigger a probation or parole violation or similar significant ripple effect in the residents’ interaction with the justice system. Increased involvement with the criminal justice system could lead to more severe criminal sanctions, and possible incarceration. In turn, these criminal sanctions could jeopardize the individual’s housing, benefits, education, and employment. These (continued)
July 2020
lfJt.. PUBLIC HEALTH
~ LAWCENTER
at Mitchell Hamline School of Law
/ f
American
Lung Association .

California
.,.,,,..,. _____________________________________ _
Smoke-free Multiunit Housing Model Ordinance 16
www .publichealthlawcenter.org/caltobacco
Note (continued)
risks should be carefully weighed by the municipality as policymakers consider whether to include criminal and monetary penalties and how to structure those penalties.

For these reasons, the enforcement provisions in this model policy do not include criminal sanctions, and focus primary responsibility for enforcement on landlords and HOAs as the managers of such properties by holding them accountable with appropriate civil penalties for any failure to enforce the rules required under this law. Penalties for individual residents are limited to violations that include harassment or retaliation for seeking enforcement of the law.

The following provisions are designed to offer several enforcement options to the jurisdiction and residents. While not all enforcement mechanisms may be pursued, allowing multiple enforcement mechanisms in the ordinance may increase the likelihood of compliance, enforcement, and, in turn, protections from second and third-hand smoke. (A)
T
he remedies provided by this [

article/ chapter

] are cumulative and in addition to any
other remedies available at law or in equity.
(B)
An
y person exposed to secondhand smoke as a result of a violation of this [

article/
chapter

] may initiate enforcement of this [

article/ chapter

] by registering a complaint
with the [

city/ county manager

], or his or her designee.
(C)
Enf
orcement of this chapter shall be the responsibility of [

department of housing
inspections/ public health/ other

]. In addition, any code enforcement official may enforce this chapter.
(D)
Landlor
ds or HOAs found to have violated this [

article/ chapter

] are subject to a civil
fine not less than [

two hundred fifty dollars ($250)

] and not exceeding [

one thousand
dollars ($1,000)

] per violation.

Note
This provision provides civil fines for violating the ordinance. It requires that a traditional civil suit be filed by the city or county (possibly in small claims court). The fine amounts can be adjusted but cannot exceed $1,000 per violation. (See California Government Code section 36901.)
July 2020
lfJt.. PUBLIC HEALTH
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at Mitchell Hamline School of Law
/ f
American
Lung Association .

California
.,.,,,..,. _____________________________________ _
Smoke-free Multiunit Housing Model Ordinance 17
www .publichealthlawcenter.org/caltobacco
(E) No per son shall intimidate, harass, or otherwise retaliate against any person who seeks compliance with this [

article/ chapter

]. Any person in violation of this subsection is
subject to a civil fine not less than [

two hundred fifty dollars ($250)

] and not exceeding
[

one thousand dollars ($1,000)

] per violation.

Note
This subsection allows penalties for any person who intimidates, harasses, or otherwise retaliates for persons seeking compliance with this ordinance. These fines may be too steep for some residents, which could put their housing stability in jeopardy. Community service may be provided as an alternative option. The following language could be added to this paragraph: “Residents of the multiunit residence in violation of this subsection may be subject to community service as an alternative to a civil fine.” (F)
In addition t
o other remedies provided by this [

article/ chapter

] or otherwise available
at law or in equity, any violation of this [

article/ chapter

] may be remedied by a civil
action brought by the [

city attorney/ county counsel

], including, without limitation,
administrative or judicial nuisance abatement proceedings, civil code enforcement proceedings, and suits for injunctive relief.

Note
It is common to provide that the local government’s lawyers may go to court to seek injunctions and other penalties in addition to fines. The express provision for injunctive relief lowers the showing required to obtain a preliminary or permanent injunction.

A public agency should think carefully about the nuisance abatement procedure it chooses in enforcing this ordinance after it is adopted. A local government may provide for treble damages for the second or subsequent nuisance abatement judgment within a two-year period, as long as the ordinance is enacted pursuant to Government Code section 38773.7.

T reble 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.

July 2020
lfJt.. PUBLIC HEALTH
~ LAWCENTER
at Mitchell Hamline School of Law
/ f
American
Lung Association .

California
.,.,,,..,. _____________________________________ _
Smoke-free Multiunit Housing Model Ordinance 18
www .publichealthlawcenter.org/caltobacco
(G) An y person may bring a civil action to enforce this [ article/ chapter ] to prevent future violations and may sue to recover actual or statutory damages, including court costs, and attorney fees.

SECTION III. CONSTRUCTION, SEVERABILITY.

It is the intent of the [ city council/board of supervisors ] of the [ city/ county ] of [ ________ ] t
o supplement applicable state and federal law and not to duplicate or contradict such law and this ordinance shall be construed consistently with that intention. If any section, subsection, subdivision, paragraph, sentence, clause, or phrase of this ordinance, or its application to any person or circumstance, is for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remaining sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases of this ordinance, or its application to any other person or circumstance. The [

city council/board of supervisors

] of
the [

city/ county

] of [

________

] 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, subsec
tions, subdivisions, par
agraphs, sentences, clauses,
or phrases hereof be declared invalid or unenforceable.

APPENDIX A: FINDINGS
WHEREAS, tobacco use causes death and disease and continues to be an urgent public health threat, as evidenced by the following:
{ The World Health Organization (WHO) estimates that tobacco kills up to half of its users, amounting to more than 8 million deaths each year worldwide, 1 including nearly half a
million people who die prematurely from smoking in the United States alone;2 { T obacco 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; and 2 WHEREAS, tobacco use is the number one cause of preventable death in California2 and c
ontinues to be an urgent public health issue, as evidenced by the following:

July 2020
lfJt.. PUBLIC HEALTH
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at Mitchell Hamline School of Law
/ f
American
Lung Association .

California
.,.,,,..,. _____________________________________ _
Smoke-free Multiunit Housing Model Ordinance 19
www .publichealthlawcenter.org/caltobacco
{ An estimated 40,000 California adults die from smoking 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 multiunit 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

]
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
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at Mitchell Hamline School of Law
/ f
American
Lung Association .

California
.,.,,,..,. _____________________________________ _
Smoke-free Multiunit Housing Model Ordinance 20
www .publichealthlawcenter.org/caltobacco
{ 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; 17,19–21
{ 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
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{ 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 Conditioning Engineers, and the State of California T obacco Education and Research Oversight Committee (TEROC), all support inclusion of electronic 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 California to cause cancer; 10,32
{ Cannabis smoke contains at least 33 known carcinogens;32 { In one study, exposure to cannabis smoke in an unventilated setting resulted in detectible levels of cannabinoids in non-smoker participants’ blood and urine, and participants experienced minor increases in heart rate and impaired cognitive performance; 33 and
{ A recent systematic review of the literature concluded that secondhand exposure to cannabis smoke leads to cannabinoid metabolites in bodily fluids and individuals experiencing self-reported psychoactive effects;
34 WHEREAS, nonsmokers who live in multiunit dwellings can be exposed to neighbors’ secondhand smoke, as evidenced by the following:
{ Research demonstrates that secondhand smoke in multiunit housing can and does transfer between units, seeping into smoke-free areas from areas where smoking occurs; 35 { Residents of multiunit housing have higher levels of cotinine (a biomarker for nicotine) in their blood and saliva than those living in detached houses; 36 { Among children who live in homes in which no one smokes indoors, those who live in multiunit housing have 45% higher cotinine levels than children who live in detached houses;
36,37
{ T welve studies have found between 26% and 64% of residents of multiunit housing report secondhand smoke drifting into their home;
36 July 2020
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{ Surveys have found that 65% to 90% of multiunit housing residents who experience secondhand smoke in their home are bothered by it,36 and a 2019–2020 survey documented variations in secondhand smoke source among multiunit housing residents in Los Angeles County, who reported secondhand smoke exposure from tobacco (39%), marijuana (36%), and e-cigarettes (9%);
38 { Between 44.0% and 46.2% of Californians living in multiunit housing with personal smoke- free home policies are exposed to secondhand smoke in their home; 39 WHEREAS, harmful residues from tobacco smoke can be absorbed by and cling to virtually all indoor surfaces long after smoking has stopped and then be emitted back into the air, making this “thirdhand smoke” a potential health hazard, as evidenced by the following:
{ Thirdhand smoke contains carcinogenic materials that accumulate over time, presenting a health hazard long after the initial smoke is gone;
40,41
{ Studies consistently find that thirdhand smoke remains months after nonsmokers have moved into units where smokers previously lived,
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 DNA45,46 and is carcinogenic at exposure levels relevant to residents of multiunit housing;46 WHEREAS, smoking is a leading cause of fire-related injury and death,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
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{ African American males and American Indian males have the highest mortality rates for fire-related deaths; altogether, African Americans accounted for 19% of all fire-related deaths in 2017, but made up only 13% of the U.S. population; 47 { Elderly people 85 or older have the highest fire death rate, and the risk of dying from smoking-related fires increases with age;
47 [

insert local data if available

]
WHEREAS, an estimated 28% of Californians (or 7.3 million people) live in multiunit housing;49 WHEREAS, the U.S. Surgeon General has concluded that eliminating smoking in indoor spaces is the only way to fully protect nonsmokers from secondhand smoke exposure; and that separating smokers from nonsmokers, cleaning the air, and ventilating buildings cannot completely prevent secondhand smoke exposure;
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 multiunit housing; 50–52
WHEREAS, secondhand smoke exposure occurs more often in multiunit housing compared to separate, single-unit housing;
49,53,54 and therefore contributes to tobacco-related health inequities. For example, in California, when compared with adults who live in single-family houses, adults who live in multiunit housing are more likely to be:
{ People of color (62.9% of residents of multiunit homes versus 49.6% of residents of single- family houses);
49 { Lower-income or below the poverty line (46.8% versus 27.0%);49 { Lacking a high school diploma (21.4% versus 14.8%);49 { Current smokers (17.5% versus 13.2%);49 as well as
{ Uninsured (23.4% versus 14.2%);49
WHEREAS, secondhand smoke in multiunit housing is a significant threat to the health and safety of California children, as evidenced by the following:
{ About a quarter of those who live in multiunit housing (25.2%) are under the age of 18;39 July 2020
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{ The home is the primary source of secondhand smoke exposure for children;15 { A national survey found that 56.4% of U.S. youth living in apartment units in which no one smokes have elevated blood cotinine levels above 0.05 ng/ mL, indicating they have been exposed to potentially dangerous levels of secondhand smoke; 37 { The same survey also found that children who live in homes in which no one smokes indoors have 45% higher cotinine levels if they live in apartments compared with detached homes;
37 WHEREAS, research consistently demonstrates that a majority of multiunit housing residents, including a large portion of smokers, supports smoke-free policies in multiunit residences, 36,55,56
and that support is even greater among residents with children;56 WHEREAS, research demonstrates that a majority of adults supports smoke-free policies in multiunit residences, as evidenced by the following:
{ 73.7% of U.S. adults surveyed favor smoke-free public housing;57 { 65% of Californians surveyed favor restricting smoking inside apartment units;58 [ insert local data if available ]

WHEREAS
, there are significant savings from adopting a smoke-free multiunit housing policy, as evidenced by the following:
{ Prior to implementation, the U.S. Department of Housing and Urban Development’s smoke- free public housing policy was conservatively estimated to produce an annual savings of 4 to 8 million dollars a year for U.S. public housing authorities in renovation-related costs, 59 and 30 to 109 million dollars per year in health care costs in California alone;60 { Implementing statewide smoke-free policies in multiunit housing property would save property owners in California an estimated $18.1 million in renovation expenses each year; 61 WHEREAS, in 2016 the United States Department of Housing and Urban Development issued a final rule requiring all public housing agencies to adopt smoke-free policies to protect residents from secondhand smoke exposure effective February 2017; 62 WHEREAS, children, low-income tenants of public housing, and members of racial and ethnic minority groups are disproportionately exposed to secondhand smoke; and smoke-free housing policies have shown potential to reduce exposure in these populations; 63,64
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WHEREAS, California state law allows local governments to adopt ordinances that permit residential rental agreements to prohibit smoking tobacco products within rental units;65 WHEREAS, more than 140 California cities and counties have adopted smoke-free multiunit housing ordinances;
6 WHEREAS, there is no Constitutional right to smoke;66 WHEREAS, California law declares that anything which is injurious to health or obstructs the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance;
67 WHEREAS, local governments have broad latitude to declare nuisances and are not constrained by prior definitions of nuisance;
67,68
NOW THEREFORE, it is the intent of the [ city council/ county board of supervisors ] in enacting this or
dinance, to provide for the public health, safety, and welfare by discouraging the inherently dangerous behavior of smoking around nontobacco users; by protecting children from exposure to smoking where they live and play; and by protecting the public from nonconsensual exposure to secondhand smoke in and around their homes.

Endnotes
1 W orld Health Organization. WHO Report on the Global T obacco Epidemic, 2019: Offer Help to Quit T obacco Use. 2019.

Available at: https:/ / apps.who.int/iris/handle/10665/326043. 2 U.S. Depar
tment of Health and Human Services. The Health Consequences of Smoking: 50 Years of Progress. A Report of the Surgeon General. Atlanta, GA: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health. 2014.

Available at: https:/ /www.ncbi.nlm.nih.gov/books/NBK179276/ pdf/Bookshelf_NBK179276.pdf. 3 Campaign f
or T obacco-Free Kids. The T oll of T obacco in California. Available at: www.tobaccofreekids.org/ problem/toll- us/ california. Accessed June 2, 2020.
4 L
ortet-Tieulent J, Sauer AG, Siegel RL, et al. State-level cancer mortality attributable to cigarette smoking in the United States. JAMA Intern Med. 2016;176(12):1792–1798. doi:10.1001/jamainternmed.2016.6530. 5 U.S. National Canc
er Institute. A Socioecological Approach to Addressing Tobacco-Related Health Disparities. National Cancer Institute T obacco Control Monograph 22. NIH Publication No. 17-CA-8035A. Bethesda, MD: U.S. Department of Health and Human Services, National Institutes of Health, National Cancer Institute. 2017. Available at: https:/ / can- cercontrol.cancer.gov/brp/tcrb/ monographs/22/index.html. 6 Calif
ornia T obacco Control Program, California Department of Public Health. California T obacco Facts and Figures 2019.

Available at: https:/ /www.cdph.ca.gov/Programs/CCDPHP /DCDIC/CTCB/CDPH%20Document%20Library/Re- searchandEvaluation/FactsandFigures/CAT obaccoFactsandFigures2019.pdf. Accessed June 2, 2020.

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7 U.S. Depar tment of Health and Human Services. The Health Consequences of Involuntary Exposure to Tobacco Smoke. A Report of the Surgeon General. Atlanta, GA: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health. 2006. Available at: www.cdc.gov/tobacco/ data_statistics/ sgr/2006/index.htm. Accessed June 2, 2020. 8 Air R
esources Board, California Environmental Protection Agency. Frequently Asked Questions — Environmental T obac- co Smoke. Available at: https:/ /ww2.arb.ca.gov/ our-work/ programs/ environmental-tobacco-smoke-identified-tox- ic-air-contaminant. Accessed June 2, 2020.
9 Calif
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www.arb.ca.gov/ newsrel/ nr012606.htm. Accessed June 2, 2020. 10 Offic
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12 American Hear
t Association. Policy Position on Smoke-Free Policies in Multi-Unit Housing. Washington, DC: American Heart Association. 2013. Available at: www.heart.org/idc/ groups/ ahaecc-public/@wcm/@adv/ documents/ download- able/ ucm_469126.pdf.
13 American Lung As
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A Community Health Threat. Sacramento, CA. 2015. Available at: www.cdph.ca.gov/Programs/CCDPHP /DCDIC/CTCB/ CDPH%20Document%20Library/Policy/ElectronicSmokingDevices/StateHealthEcigReport.pdf. 17 National A
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eck RM, Babb SD. National and State Cost Savings Associated with Prohibiting Smoking in Subsidized and Public Housing in the United States. Prev Chronic Dis. 2014;11:E171. doi: 10.5888/ pcd11.140222. 61 Ong MK, Diamant AL, Zhou Q, P
ark HY , Kaplan RM. Estimates of smoking-related property costs in California multiunit housing. Am J Public Health. 2012; 102(3):490–493. doi:10.2105/ AJPH.2011.300170. 62 Instituting Smok
e-Free Public Housing, 81 FR 87430 (December 5, 2016). www.federalregister.gov/ docu- ments/2016/12/05/2016-28986/instituting-smoke-free-public-housing. Accessed June 4, 2020. 63 V
ijayaraghavan M, Schroeder SA, Kushel M. The effectiveness of tobacco control policies on vulnerable populations in the USA: a review. Postgrad. Med J. 2016;92:670–676. doi.org/10.1136/ postgradmedj-2014-133193. 64 Haf
ez A Y , Gonzalez M, Kulik MC, Vijayaraghavan M, Glantz SA. Uneven Access to Smoke-Free Laws and Policies and Its Effect on Health Equity in the United States: 2000–2019. Am J Public Health. 2019;109(11):1568-1575. doi: 10.2105/ AJPH.2019.305289.
65 Cal. C
iv. Code § 1947.5.
66 P
ublic Health Law Center. There Is No Constitutional Right to Smoke or T oke. Saint Paul, MN: Public Health Law Center. 2019. Available at: https:/ / publichealthlawcenter.org/ sites/ default/files/ resources/No-Constitution- al-Right-Smoke-T oke-2019.pdf.
67 Cal. C
iv. Code § 3479.
68 In R
e Jones, 56 Cal.App.2d 658, 663 (1943); See also Cal. Const., art. XI, § 7 and Cal. Gov. Code § 38771.

July 2020
lfJt.. PUBLIC HEALTH
~ LAWCENTER
at Mitchell Hamline School of Law
/ f
American
Lung Association .

California
.,.,,,..,. _____________________________________ _
From: Sharon Bodon
To: City Clerk; Teresa Acosta; Keith Blackburn; Melanie Burkholder; Priya Bhat-Patel; Carolyn Luna Subject: Item #9 8/22/23 meeting
Date: Tuesday, August 22, 2023 9:44:29 AM
Dear Honorable Mayor Blackburn and City Council Members:

RE: Item #9
I ask for adoption of proposal #2 with a motion that directs staff to draft an ordinance imposing:
“a complete smoking prohibition in multifamily housing units and/or outdoor common areas. This would apply to housing projects with two or more units, rental or ownership interest and existing and new multifamily housing properties.”

After earning a pair of degrees from the University of Utah, my BS in Public Health Education led me to the State Department of Health, where I worked on the K.I.D.S (Kids Inhaling Dangerous Smoke) Coalition project, meant to prevent kids from using and being exposed to harmful tobacco products.

It was an eye-opener, as I learned even more about and helped educate the community on this topic.

The CDC indicates:

· There is no safe level of exposure to secondhand smoke. · People who do not smoke who are exposed to secondhand smoke, even for a short time, can suffer harmful health effects.
·
In adults who do not smoke, secondhand smoke exposure can cause coronary heart disease, stroke, lung cancer, and other diseases. ·
Secondhand smoke can cause adverse reproductive health effects in women, including low birth weight.
·
In children, secondhand smoke exposure can cause respiratory infections, ear infections, and asthma attacks. In babies, secondhand smoke can cause sudden infant death syndrome (SIDS).

I also have an especially personal reason for being passionate about this topic. My own father passed away decades ago from cancer, caused by his tobacco use. I grew up in a home in which the smoke affected every moment, from how my wardrobe reeked, totally outside of my control, to the challenges his family suffered from numerous respiratory illnesses correlated with the environmental smoke.

No child or non-tobacco individual should be subjected to this type of environment and our city can help greatly by passing this ordinance.

Sharon Bodon
Carlsbad Resident
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Tammy Cloud-McMinn
From:

Sent:

To:

Subject:

Diana A <[email protected]>
Monday, August 21, 2023 11 :22 AM
City Clerk
Agenda Item #9 MUH Non-Smoking Ordinance
Dear Mayor & Cit y Council Members,
All Receive - Agenda Item# ..9_
For the Information of the:

CITY COUNCIL
Date~ CA ✓ CC ✓
CM ✓ ACM v DCM (3) ✓
I strongly recommend that the Carlsbad City Council gives a thumbs-up to proposal #2. What I'm thinking is, it would be fantastic if the Council could ask our incredible staff to start crafting a draft ordinance. This ordinance would bring in some really positive changes - like a complete ban on smoking in all the multifamily housing units and those inviting outdoor spaces.

This ban would make things awesome for everyone, whether it's about renting or owning. It doesn't matter if it's a place we've cherished for years or a brand ... new multifamily housing spot - this change would cover it all. Your support would be greatly appreciated! P.S.:

In 2020, Dr. Wilma Wooten, San Diego County Public Health Officer, urged the City of Carlsbad to adopt a comprehensive smoke-free ordinance for multifamily housing . This ordinance would encompass private balconies, interior units, and common areas not already covered by state law. The goal is to reduce the harmful effects of secondhand and thirdhand smoke.

Thank you,
Diana Aguirre, MBA, PMP®, LSSBB
Distri ct 3 Resident
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1 Tammy Cloud-McMinn
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Hello,
Molly Kirkland < mkirkland@socalrha .org >
Monday, August 21, 2023 1:34 PM
City Clerk
Council Internet Email; Keith Blackburn; Priya Bhat-Patel; Melanie Burkholder; Carolyn Luna; Teresa Acosta; Mike Strong
SCRHA Letter - Aug, 22 Agenda - Item 9. HOUSING ELEMENT PROGRAM: OPTIONS TO

DEVELOP A SMOKE-FREE MULTIFAMILY HOUSING
SCRHA Letter - Item 9 - SmokeFree Multi Family Ordinance.pdf The Southern California Rental Housing Association {SCRHA} is submitting the attached letter regarding Item 9 on the August 22 City Council agenda.

Please don't hesitate to contact me with any questions.

Best regards,
Molly Kirkland, Director of Public Affairs
Southern California Renta l Housing Association
5675 Ruffin Road, Suite 310 I San Diego, CA 92123
Office: 858.278.8070 I Direct: 858 .751.2200
[email protected] I www .socalrha.org
en attachments or click on links unless you recogni ze the sender and know the content i 1 Southern California
Rental Housing Association
August 21, 2023
Mayor and Members of the City Council
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Sent Via Electronic Submission
RE: Item 9 - Options to Develop a Smoke-Free Multifamily Housing Ordinance Dear Mayor and Councilmembers:

On behalf of the Southern California Rental Housing Association (SCRHA) we are writing to encourage the City Council to take no action (Option 1) as it relates to the development of an ordinance that prohibits smoking in multifamily rental units. SCRHA believes that existing laws and best practices already address smoking in rental units and that the city will be better served with education and outreach on existing remedies and by encouraging voluntary no-smoking polices at rental properties.

SCRHA appreciates that we had the opportunity to discuss the matter with city staff this past March, and we do not dispute that secondhand smoke is a health concern. In fact, SCRHA strongly supported the state law that codified a rental housing provider's right to limit or ban smoking at rental properties. For many years, SCRHA has provided members with a detailed packet on how to transition a rental property to non-smoking, a resource that was created with assistance from the Lung Association. Additionally, SCRHA has an addendum to help members reinforce those rules via rental agreements which includes all types of smoking, including vaping, e-cigarettes, and marijuana.

Most rental housing providers already limit or ban smoking at their properties. This policy helps mitigate any disruption to tenants' right to quiet enjoyment, lessens the wear and tear impacts on rental units, and often results in insurance premium savings. It is unclear how many properties within the City of Carlsbad already have such policies in place. SCRHA is not aware of any study or survey of rental properties in the city that provides data on the matter. At the previously referenced March meeting, SCRHA offered to circulate any such survey to its members to assist the city in gathering relevant information. It is very likely that most Carlsbad rental properties already prohibit smoking and there is no need for an ordinance. We remain committed to helping the city gather data to better inform decisions.
5675 Ruffin Road, Suite 310 T: 858.278.8070
www.socalrha.org San Diego, CA 92123 F: 858.278.8071
Southern California
Rental Housing Association
SCRHA does not support Smoke-Free Multifamily Housing Ordinances because the burden of enforcement falls on the housing provider and there is no way to guarantee "smoke-free."
• Laws that prohibit smoking at private residential rental properties expose property owners to significant liability. What will be minimum compliance by a housing provider? Who's held responsible for violations - the property owner/manager or the person caught smoking? Rental housing providers should not be sued, fined, or otherwise be held liable for a tenant's violation of the law. • All residents are entitled to due process. Already property owners and managers must address complaints made by residents but must also investigate to make sure other residents aren't falsely accused of nuisance behavior. Additionally, state law requires that renters be given an "opportunity to cure" any violations of the rental agreement.
• Housing providers may feel more compelled to end tenancies to address tenant complaints and because they fear penalties and lawsuits. However, existing remedies for lease violations are limited and subject to timelines dictated by state law and the court system. For violations of a fixed-term lease, if the resident doesn't comply with warning notices, the only option is to proceed to an Unlawful Detainer (commonly called an Eviction) to remove the renter from the unit. Due to court backlogs and delays in the Sheriffs Department, the average timeline for an eviction in San Diego County is 6 to 8 months depending on circumstances. A smoker could very well remain in the unit while the legal process plays out, continuing to smoke and disturb neighbors while neglecting their rent payments to compound the problem. For month-to-month tenancies, after the opportunity to cure is provided, a 60-day notice to terminate tenancy would be the means to remove the offending tenant. Neither process is quick, nor do they do anything to stop smoking prior to the unit being vacated. Local ordinances should not penalize housing providers who are making good faith efforts to address smoking issues.
• Laws that prohibit smoking at, or within a designated distance of, certain areas of private residential rental properties, such as outdoor common areas, essentially force smokers to retreat to public areas like sidewalks or to within their residential units, increasing the exposure of community members, family members and house mates to secondhand smoke and increasing the risks of fire hazards.

Additionally, laws that restrict smoking to certain areas create an unrealistic expectation that smoke will remain confined to that area. 5675 Ruffin Road, Suite 310 T: 858.278.8070
www.socalrha.org
San Diego, CA 92123 F: 858.278.8071
Southern California
Rental Housing Association
SCRHA believes strongly in education and outreach and is committed to helping the City of Carlsbad educate housing providers on the benefits of voluntarily implementing no-smoking polices at rental properties. SCRHA is happy to share its resources on the subject.

We strongly encourage the City Council to adopt Option 1 and not direct staff to create an ordinance. As the staff report indicates, the drawbacks and potential costs of an ordinance far outweigh the benefits. Rental housing providers face a plethora of new laws each year in an already complicated legal environment. The addition of local ordinances, such as those that mandate smoking policies, create a patchwork of regulations that can often lead to confusion for both tenants and housing providers.

Should the Council direct staff to create an ordinance, we would request that the city survey rental housing providers in Carlsbad so there is data on existing policies at rental properties. It could be that a more targeted approach to select properties is needed, rather than a broad-brush approach that may be burdensome and punitive to those housing providers who have already embraced no-smoking polices. SCRHA would also request that a stakeholder group be formed to include representatives from the rental housing industry so that existing best practices, laws, and possible unintended consequences are not overlooked.

Thank you for the opportunity to provide input on this important municipal decision.

Please don't hesitate to contact me if you have any questions.

Sincerely,
Molly Kirkland
Director of Public Affairs
5675 Ruffin Road, Suite 310 T: 858.278.8070
www.socalrha.org
San Diego, CA 92123 F: 858.278.8071
Tammy Cloud-McMinn
From:

Sent:

To:

Holly Bourke <holly@cpmteam .com >
Thursday, August 17, 2023 4:22 PM
City Clerk
Subject: 9. HOUSING ELEMENT PROGRAM: OPTIONS TO DEVELOP A SMOKE-FREE

MULTIFAMILY HOUSING ORDINANCE
Dear Carlsbad City Council,
All Receive - Agenda Item ff _j_
For the Information of the :

CITY COUNCIL
Date'2/atb .?f:,A V CC /
CM i/'."ACM ~ CM (3) v'
Thank you for taking the time to read my public comment. My name is Holly Lewallen, and I am <! Regional Property Manager for Chamberlain Property Management.

We have several properties in Carlsbad, all of which are smoke-free. As a property manager, I strive to make our community as safe and habitable as possible.

I know that where you live can have a tremendous impact on your health. Living in multi -family communities where residents smoke or vape in and around their units exposes others to secondhand smoke and serious health problems.

In homes, secondhand smoke can travel from outdoor areas and through doors, windows, hallways, ventilation ducts, and through gaps around outlets, fixtures and walls creating an unsafe environment for residents.

While property managers, owners and landlords can voluntarily implement a smoke-free policy for their community, it can be challenging to enforce. Having the authority from the City of Carlsbad will provide an added layer of authority to the property manager, helping residents comply with the policy .

With Regards ,
Holly Lewallen I Regional Property Manager
Chamberlain Property Management I www .cpmteam.com
DRE License # : 020835 44
760-715-7103 Direct
2653 Roosevel t St., S uite D
1 Carlsbad, CA 92008
Office Hours:

Monday - Friday 9:00 am to 5:00 pm
Saturday 9:00 am- 4:00 pm I Sunday - Closed
After Hours & Weekend Emergency Phone: 760-715-7103 or 760-621-3285 If you suspect a gas leak in the home please contact SDGE immediately 1-800-411-7343.

If you are requesting regular maintenance, please click here.

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ml19
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From:

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Cc:

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Attachments:

Lynda Barbour < [email protected] >
Friday, August 18, 2023 2:59 PM
Keith Blackburn; Carolyn Luna; Teresa Acosta; Melanie Burkholder; Priya Bhat-Patel; Council Internet Email
City Clerk
Item 9, Carlsbad city council meeting 8/22/23
2023.08.22 Carlsbad ACS CAN LOS Smoke-free housing.pdf
Hello and Happy Friday.

Attached please find our letter regarding adoption of a smoke-free housing policy. We are in full support of Option 2 and encourage this council to direct staff to develop a comprehensive smoke-free policy.

We would be happy to assist this council and our public health partners in any way we can.

Best,
Lynda Barbour
•
"'
American
Cancer
Society
11 1) car:cer
~ Action
~ Network -
Lynda Barbour , MPH
Senior Government Relations Director, So.California &
Grant Program
619.624 .15171 m: 619.742.4861
fightcancer.org I 1.800.227 .2345
This message (including any attachments) is intended exclusively for the individual to whom it is addressed and may contain proprieta1y. protected, or confidential information. If you are not the named addressee , you are not authorized to read. print. copy, or disseminate this message or any pa,t of it. If you have received this message in error. please notify the sender immediately.

CAUTION: Do not open attachments or click on links unless ou recognize the sender and know the content i 1 August 18, 2023
The Honorable Keith Blackburn
Mayor, City of Carlsbad
1200 Carlsbad Village Dr.

Carlsbad, CA 92008
• American
Cancer
Society
111) 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 Netwo r k'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 couricll's inte~est in protecting your residents from the dangers of secondhand sm°'ke 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 condomin iums and town homes (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 comple t ely prohibit smoking in their homes but cannot control this when they live in attached housing without 100% smoke-fr ee 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, Government Relations, American Cancer Society Cancer Action Network www.FightCancer.org PO Box 910549; San Diego, CA 92191
W: 619-624-1517 C: 619-742-4861 [email protected] 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-family 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,
¥~ :aa Barbour, MPH
Senior Government Relations Director,
Southern California American Cancer Society Cancer Action Network Lynda Barbour, MPH, Sr. Direct or, Government Relations, 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 Tammy Cloud-McM inn
From:

Sent:

To:

Subject :

August 22, 2023
maryoren < [email protected] >
Tuesday, August 22, 2023 10:01 AM
City Clerk
8/22/23 CB Agenda item #9 adopt proposal #2
Re: Smoking and Clean Air Consideration for All
Honorable Mayor Blackburn and City Council Members -
All Receive - Agenda Item# _3_
For the Information of the:
_FjT'f_~OUNCIL
Date~ CA / cc ✓
CM V ACM _::::-ocM (3) ..:::::::

Hello and thank you for leading our beloved Carlsbad. Agenda item #9 and proposal #2 are important and personal and should be for anyone who knows anyone impacted by recreational smoking. Without going into too many details I can say that smoking in households hurts and kills, it's that simple.

I'm close to adults with life long asthma who grew up in households with both parents smoking in the home, car and other common places. While the parents tried to open windows and invite smoke out, smoke remained and not only caused asthma but ultimately a heart event for a family member who as a heavy smoker in her 40s - suffered a massive heart attack that resulted in a heart transplant. Turns out after more family sharing stories we discovered several members who were heavy smokers over the generations passed away in their 40s when medical support was not available like it is today. My husband's lost a baby brother just weeks old likely to SIDS - to what they called pneumonia at the time - when both parents unfortunately were heavy smokers.

Coincidence, unexplainable sad chain of events? Well, let's be real - science has done an amazing job of informing and treating and we can ultimately connect the dots and say behavior matte rs, and particularly have dire consequences for the innocent and uninformed. Kids, neighbors, little sisters in the wrong place at the wrong time watching it all unfold.

There is no doubt cigarettes hurt and kill, it's already been proven and legal action to protect others are in place in this country and now it's time to support better protection for those vulne rable to the danger, anyone in a household or environment that compromises an individuals safety and future . Any housing situation or shared space. It's a no brainier at this point .

Clean air is a common right and recreational smoking needs to take place where it never disrupts others clean air rights .

Simple, let's protect individuals who are currently subjected to abusive conditions. Smoking is a privilege not a right.

Let's pass proposal #2 on our agenda tonight and apply science to the quality of life we know we can and should protect .

Smoking needs to happen when the person puffing is not hurting others.

I feel outrageously lucky, cigarettes were a huge addiction in my family while growing up when all I experienced was a terrible headache every time I was subjected to space with smoke. I never developed asthma or the lethal habit. Maybe with more responsible rules in place to protect others we can help change other habits that hurt everyone one way or another. Let's protect everyone's right to clean air and a better, safer future .

Thank you for helping others - help each other - and themselves.

Mary Oren
Carlsbad resident 24 years
CAUTION: Do not open attachments or click on links unless you recognize the sender and know the content is safe. 1 Tammy Cloud-McMinn
From:

Sent:

To:

Subject:

Good afternoon,
Diana A <[email protected]>
Tuesday, August 22, 2023 11 :19 AM
City Clerk; Priya Bhat-Patel
Re: Agenda Item #9 MUH Non-Smoking Ordinance
I would like to make some adjustments to my thoughts on the smoking ban ordinance. I genuinely believe that having some form of smoking ban ordinance would be beneficial for our community. However, I believe it's important that the responsibility for enforcing the ban should rest with the owners and rental management companies, rather than placing an additional burden on our police force.

The primary objective of this ordinance should be to reduce the exposure to second and third -hand smoke. It's crucial that we strike a balance by implementing measures that safeguard tenants from being unfairly evicted or facing arrest by law enforcement.

My stance is rooted in not wanting to negatively impact our unhoused population due to smoking-related measures. It's imperative that we consider the broader social implications and ensure that any actions we take do not contribute to the challenges faced by this community.

Moreover, when it comes to smoking within the confines of one's own home, I believe it's more appropriate for the responsibility to lie with the rental owners, management companies, and HOAs. Enforcement in these cases should not involve law enforcement but rather be addressed within the framework of lease terms and HOA agreements that tenants have agreed to.

Ultimately, I advocate for a thoughtful approach that balances public health concerns with the rights and well- Q_eing of our residents. _____________ .. ___ _
· Thank you,
Diana Aguirre, D3 Resident
On Mon, Aug 21, 2023 at 11:21 AM Diana A <[email protected]> wrote:

Dear Mayor & City Council Members,
I strongly recommend that the Carlsbad City Council gives a thumbs-up to proposal #2. What I'm thinking is, it would be fantastic if the Council could ask our incredible staff to start crafting a draft ordinance. This ordinance would bring in some really positive changes - like a complete ban on ,smoking in all the multifamily housing units and those inviting outdoor spaces.

I
i
!This ban would make things awesome for everyone, whether it's about renting or owning. It doesn't I matter if it's a place we've cherished for years or a brand-new multifamily housing spot-this change lwouLd __ ~over it all. Your s~pport would be greatJy~ppreciated! P.S.:
1 In 2020, Dr. Wilma Wooten, San Diego County Public Health Officer, urged the City of Carlsbad to 1adopt a comprehensive smoke-free ordinance for multifamily housing . This ordinance would encompass private balconies, interio r units, and common areas not already covered by state law. The go~I_J_s to re~uce the har~ ful effects of_secondhand and t hir_~~and sm<:>_~~- _ Th a n k yo u,
Diana Aguirre, MBA, P MP®, L SS BB
Distri c t 3 Re sid e nt
CAUTION: Do not open attachments or click on links unless you recognize the sender and know the content i safe.
2 Tammy Cloud-McMinn
From:

Sent:

To:

Subject:

Attachments:

John Bottorff <[email protected] >
Tuesday, August 22, 2023 1 :42 PM
City Clerk
Agenda Item #9: Vote yes for Option 2
City of Carlsbad Stop Smoking Letter Aug 2023.pdf
Our comment for Agenda Item #9 is attached.

John Bottorff
CleanEarth4Kids.org
949-439-5459
[email protected]
CAUTION: Do not open attachments or click on links unless ou recognize the sender and know the content i safe.
1 Clean Earth 4Kids .org
August 20, 2023
RE: Support Smoking Ban in Multifamily Housing
Mayor Blackburn and the Carlsbad City Council,
CleanEarth4Kids .org asks you to vote yes for Option 2 to completely ban smoking and vaping in multi-family housing and common areas in Carlsbad.

Almost 80 cities and counties in California have already passed ordinances to stop smoking and vaping in multi-unit housing. 1
The use of tobacco ,2 marijuana ,3 and vapes/e-cigarettes is proven to be harmful to human health. 4 Smoking hurts the smoker and everyone around them. 1 in 3 non-smokers and 2 in 5 children are exposed to secondhand smoke in multi -unit housing. 5
Take Additional Actions
CleanEarth4Kids.org asks the City of Carlsbad to consider the following additional actions to protect our air and children's health:

1. Implement a public smoking ban like the City of Encinitas. 6

2. Pass an ordinance to stop all sales of smoking products , including tobacco, cannabis, cigars, e-cigarettes and vapes. The cities of Beverly Hills and Manhattan Beach have banned the sale of tobacco, e-cigarettes, vaping devices and cannabis. 7 •8
a. An alternative is a Tobacco Free Generation (TFG) ordinance like Brookline, MA where anyone born after January 1, 2000 will never be able to legally buy tobacco or vaping products. 9 •10

3. Ban the sale of all flavored smoking products including tobacco, cannabis, cigars, e-cigarettes and vapes.11
1 http:/ /no -smoke .org/wp -content/uploads /pdf / smokefreemuh.pdf 2 https : I (www cdc gov/tobacco/basic information/health effects/index .htm 3 https: / /www .samhsa .gov/marijuana
4 bttps· / (my c)evelandc)jnjc org/hea)th /artjc)es /21162 -vapjng 5 https://www.cdph .ca. gov/Programs / CCDPHP /DCDIC / SecondhandSmokelnMulti-unitHousingFactSheet.pdf 6 https· I lwww encinitasca gov/government /departments /development -services {smoking-ordinance 7 http:I!www.beverlyhills.org/citymanager / smokinginforrnation /currentsmokingregulations / 8 https: / /www.manhattanbeach.gov/ environmental -sustainability /breathe -free-mb-smoke -free-public-areas 9 https: I I www. phaionline. org /projects I tobacco-control/innovative-tobacco-control /tobacco-free -generation / 10 https: //www .publichealthlawcenter .org/webinar /tobacco -free-generation-brooklines-model-ending-tobacco-us 11 https: //assets tobaccofreekids org /factsheets /0398 pdf 1 First and Secondhand Smoke
Firsthand smoke is the smoke breathed by a smoker and increases the chance of many types of cancer, heart disease , stroke and lung diseases. 12 Secondhand smoke is breathed in by those around smokers . 13 Smoke inhalation harms health , including coronary heart disease, strokes, and lung cancer . 14 Every year in California , secondhand smoke causes approximately 30,000 asthma attacks, 400 lung cancer deaths and over 3,600 cardiac deaths .15 In children, secondhand smoke can cause coughing, sore throats, ear infections, respiratory infections, and asthma attacks . 16
Secondhand smoke is a toxic air contaminant causing cancer , lung infections, bronchitis, asthma attacks , ear infections , Sudden Infant Death Syndrome (SIDS) · and many other health issues. 17 Air purifiers do not get rid of secondhand smoke which can travel through doorways , cracks in walls and electrical/plumbing lines. 18•19 There is NO safe level of exposure to secondhand smoke. 2 0 According to the CDC, Z in 10 black children are exposed to secondhand smoke and the home is the main place where they are exposed. 2 1
Secondhand srrioke also exp oses children to lead . 22 Lead is a neurotoxin that accumulates over time. There is no safe level of exposure to lead according to the World Health Organization ,23 Centers for Disease Control 24 and the American Academy of Pediatrics .25
Lead is especially toxic to children and unborn babies. 26 It damages kids' brains and nervous systems , lowers IQ, causes behavior problems and is linked to higher rates of suspension and detention along with lower reading and math test scores .27•28 Kids in families with .one smoker had lead levels 14% higher than in non-smoking ho~es and 24% higher with 2 or more smokers in the home . 29
Thirdhand Smoke
12 h ttps : //www.cdc.gov/ tobacco/ data statistics/ fact sheets/ health effects/ effects cig smoking/ index. htm 13 bUps · I I www cancer. gov /publications /dictionaries I cancer-terms /def I secondhand-smoke 14 https://www.cdc.gov/tobacco/secondhand-smoke/health .html#:~:text=Ino/o 15 https · I /cchealth org/tobacco/facts php#:~·text=Evex:yo/0 2Qyear%2Qjn%2QCalifornja 16 https: / / kidshealth. org /en/parents I secondhand-smoke .html 17 https· //www cdc gov/tobacco/data statistics/fact sheets/secondhand smoke/health effects/jndex htm 18 https: / /www.meyoclinic.org/healtby -lifestyle/adult-health/expert-answers/air-purifier-smoke/fag-20058555 19 https://www .epa.gov/ iag /what-can-i-do-about-secondhand -smoke-coming-my-neighbors-apartment 20 https: I lwww. cancer gov I about-cancer I causes -prevention I risk I substances I secondhand-smoke 21 https://www .cdc.gov/vitalsigns/tobacco/index.html
22 https· //www smokefreehousjngny org/secondhand -smoke-sjgnificant-source-of-Iead-exposure-for-children I 23 https: / /www.who.int/ news-room/ fact-sheets/ detail /lead -poisoning~and-heal th 24 https· //www cdc gov/nceh /lead /faqs/lead -faqs btm 25 https: / /www.aap.org/en-us /advocacy-and-policy/aap-health- initiatives /lead-exposure I Pages/ default.aspx 26 https ://www.cdc .gov/nceh/lead/prevention/health-effe cts.htm 27 https: / /www.nber.org/papers /w23392
28 https: //www .ncbi.nlm.nih.gov/pmc/articles/PMC4387706/ 29 https: / /www. smokefreehousingny org I secondhand-smoke-significant -source -of-lead-exposure-for-children I 2 Thirdhand smoke is the toxic residue from smoking that is left on surfaces and even in dust. 30 The smoke residue can stick to furniture, windows, walls, and floors, as well as skin, hair, and clothing. 31 Only four weeks of exposure to thirdhand smoke is equivalent to smoke levels in the homes of smokers, making it just as harmful as . firsthand and secondhand smoke. 32
Thirdhand smoke has the same damaging effects such as a higher risk of developing lung cancer and asthma . 33 It can also harm the liver, brain, immune system and reproductive system and cause type 2 diabetes . 34,35 Children are especially susceptible to the health effects of thirdhand smoke as they crawl on the floor and put objects in their mouths. 36
Thirdhand smoke has been found to persist in houses, apartments and hotel rooms after smokers move out. 37 Handwashing only drops the toxin levels temporarily , they are back 40-60 minutes later. 38 So even if someone doesn't smoke around their kids, they are still exposing them to toxic chemicals.

Smoke Harms Expecting Mothers and Children
Cigarette smoke contains more than 7,000 chemicals with at least 69 known to cause cancer including benzene and formaldehyde. 39 ·
Tobacco smoke also contains PM 2.5 which causes chronic lung diseases and many other harmful health effects .40,41
Childhood exposure to PM2. 5 is linked to asthma , 42 which is the leading cause of school absences 43 and the third leading cause of hospitalizations among children under 15 .44 Poor air quality increases the likelihood of asthma attacks, breathing difficulty , 45 increased emergency room visits , 46 and hospitalization . 47 Air pollution can also inflame the brain. central nervous system , and hearts in children. 48 •49 30 https: //no-smoke.org/smokefree-threats/th irdhand -smoke/ 31 https://www.cdph .ca.gov/Programs/CCDPHP/DCDIC/CTCB/CDPH %20Documen t 32 h ttps: / / portlandpress. com/ Biomarkers-of -disease -can -be-detected -in-mice-as 33 https · I lwww bannerhealth. com/ the -dangers-of-thirdhand-smoke -to-you -and-your -children# 34 https: / /www .sciencedaily .com/release s /2016/03/ 160302181717.htm 35 https· / /thirdhandsmoke org/what-does-thirdhand -smoke-exPosure-do-to-our-bodies I 36 https://www .ncbi.nlm .nih.gov/pmc/articles /PMC3784302 / 37 https· / /www verywe!]heaJtb com /what-is-third-hand-smoke-2248867 38 https : / /www.safetyandhealthmagazine.com/researchers -find -nicotine-on -hands-of-kids -whose -parents -smoke 39 h ttps: / /www.lung.org/ quit -smoking I smoking-facts I whats -in-a-cigarette 40 https: I /www.sciencedirect com/science/article/pii/S00l3935119307078 41 https ://www .epa.gov/pm-pollution /health-and -environmental-effects -particulate-matter-pm 42 bttps · I lwww sciencedjrect com /science I artide /pii/ so 160412022002240 43 https: / /aafa .org/asthma/asthma -facts
44 http§'/ /www epa gov/chjjdren /chjjdrens -enyjronmentaJ-hea]th-facts 45 https: / /resphealth . org /clean-air/ understanding -air -pollution/ 46 http s: / /jamanetwork.com/journals/iamanetwork open/fullarticle/2801735?resultClick =3 47 https://www.ncbi.nlm.nih .gov/pmc /articles /PMC6546668 / 48 https: / /www.ncbi.nlm .nih.gov/pmc/articles/PMC7352229 49 https: / /pubmed.ncbi.nlm.nih gov /35921508
3 As pregnant women inhale polluted air, pollutants travel to the tissues , brain, liver. lungs, and organs of the fetus .50 •51 Black carbon can enter the placenta, circulation system, and the organs of the fetus via the mother's blood. 52•53 Exposure to air pollution during pregnancy and infancy5 4 is linked to increased rates of stillbirth , 55 preterm birth , 56 low birth weight , 57 SIDS (Sudden Infant Death Syndrome) ,58 and decreased development of the brain , among other long-term severe effects .59
Exposure to air pollution , even at low levels during pregnancy and childhood significantly harms children's health. 60
Air pollution harms unborn babies .61 Dr. Paul Fowler's extensive research, webinar , and presentation clearly show a 26% increase in stillbirths when air pollution is increased by just 1 O µg/ m3. 62 •63
Smoking And Vaping Tobacco Products Harm Kids
Tobacco use during childhood and adolescence causes significant health problems 64 such as respiratory diseases and cancer ,65 memory and cognitive issues ,66 and various heart diseases .67 Smoking also harms brain development .68 Nicotine harms hippocampus-dependent memory with varying degrees of impairment to both short-term and long-term memory after just four weeks of use . 69 •70 Flavored Tobacco Addict Youth
Flavors are used by the tobacco industry to hook youth and create lifelong customers .71 Flavored tobacco plays a significant role in luring people under the age of 21 to use tobacco products. 72 Youth use flavored tobacco products more often than 50 https: //pubmed .ncbi.nlm .nih .gov /32556259 /
51 https- / /www thegJJardian com (toxjc-ajr-po])utjon -partjcles -fmmd-jn-hmgs-and-brajns -of-unborn-babjes 52 https: / /www.livescience.com/ black -carbon-reaches -placenta. html 53 https : //pubmed .ncbi.nlm.nih .gov /36719212/
54 https: I /jamanetwork .com/journals/jamanetworkopen/fullarticle/2767260 55 https : / /www.sciencedirect .com/science/article / abs /pii/S02697 49121003328 56 https · ( I med nyu edu t pediatrics t divisions t euviroumenta]-pediatrics / air-pollutjon -preterm -births 57 https : //pubmed .ncbi.nlm .nih .gov /22726801 /
58 bttps· I lwww scjencedirect com /science /article /abs /pii /S0045653520337 l 39 59 https: / /www .washington.edu/news/2022 /07 / 12 /uw-link-between -air -pollution -and -child -brain -development 60 h ttps : I Iwww.lung .org/ clean -air/outdoors/ who-i s-at-risk I children -and -air-pollution 61 https : //pubmed .ncbi.nlm .nih gov /36208643 /
62 https://youtu.be/40Ga9 StJO0
63 https· / /www healthandenvironment org/assets /images /CHE%20Jan%202023%20Fow]er pdf 64 https : I Iwww.lung .org I guit-smokirlg I smoking -facts I tobac co-use -among -children 65 https · //www cdc gov/tobacco/data statistics/fact sheets/health effects/effects Gig smoking/index htm 66 https://www .webmd .com/brain /news I 20221222 / study-links-smokirlg -to-memory -loss-cognitive -decline 67 bttps- //www cdc gov/tobacco /sgr/S0th-anniversacy/pdfs Ifs smokjng cyd sos pdf 68 https: //e-cigarettes.surgeongeneral.gov/knowtherisks.html#:~ :text= 69 https ://www .ncbi.nlm.nih .gov/pmc/articles/PMC6018186 / #:~:text=Nicotine %20exposure 70 https : / /www .ncbi nlm ,nih,gov/pmc/articles/PMC9270881 I 71 https: / / stopswithme .com/big -tobacco-targets-our-kids 72 https: t /ash,org/flavored-tobacco-products-entice-xouth 4 others, and the use of flavored tobacco increases the likelihood of smoking. 73 The impact of tobacco use on development has been extensively researched, and the evidence is clear: tobacco smoke poses a significant threat to the health and well-being of young people and adults. 74
According to the FDA, reducing the availability of flavored tobacco products can significantly reduce the amount of disease , like respiratory illness and death from tobacco product use among young people. 75
Studies show that most Americans strongly distrust traditional tobacco products, but 70% view flavored tobacco products favorably . 76 Before the invention of flavored tobacco products, smoking was on the decline amongst millennials and youth, but with dangerous, deceptive marketing of flavored cigarettes, smoking levels are rising amongst under 40-year-olds .77
Nicotine and Addiction
Nicotine is quickly absorbed and goes directly to your brain , making it easier to become addicted. 78 The adolescent brain is sensitive to nicotine as it has not fully developed and smoking during adolescence increases the risk of psychiatric disorders and cognitive impairment as adults. 79
Nicotine is highly addictive , just 5 cigarettes/day can make someone addicted. 80 It is just as addictive as cocaine or heroin. 81 Smoking tobacco releases dopamine , 82 a neurotransmitter that signals a pleasurable experience, which reinforces the effects of nicotine and increases the odds of addiction . 83 Nicotine addiction is very difficult to stop, between 30%-50% of US smokers try to quit each year with only 7.5% succeeding . 84
Addiction to nicotine has detrimental impacts on the brain and can also cause increased blood pressure, and heart rate, along with hardening of the arterial walls, leading to a heart attack. 85 •86
The Black Community Is Targeted By Predatory Big Tobacco 73 https: II www. cdq~ov I tobacco/ data statistics / fact sheets /youth data/ tobac co 74 https ://www .ncbi.nlm .nih .gov/books/NBK99242/
75 https: I I dailynews. ascopu bs . org /do/ ban -men thol -cigarettes -and -flavorecj -cigars -poised -reduce -ineguity -cancer 76 https: / / trn thinitiative .org /research -resources/ tobacco -industry -marketing/ spinning -new-tobacco -industry 77 https: / /www cdc gov /tobacco /data statistics /fact sheets /adult data /cig smoking/index htm 78 https: / /teen . smokefree . gov/ the -risks -of-tobacco/ nicotin e-addiction 79 https· //www ncbj nJm njh gov/pmc/artjc1es/PMC3543069/ 80 https://www.ncbi.nlm .nih .gov/pmc/articles/PMC3419325 / 81 https · / /www ncbi nJm nih gov/pmc/artic1es/PMC4363846 82 https://www.ncbi.nlmnih .gov/pmc/articles/PMC2946180 83 h ttps : / /nida . nih . gov/ publication s / drugs -brains- behavior -science-addiction/ drugs -brain 84 https://jamanetwork.com/joumals/jamanetworkopen/fullarticle/2797599 85 h ttps: / / trn thinitiative . org /research -resources/ harmful-effects-tobacco/ nicotine-and-young-brain 86 https: / /www.heart.org/healthy-Iifestyle /quit-smoking-tobacco /how-smoking-and-nicotine-damage-your-body 5 Tobacco is the leading cause of preventable death and disease in the US with especially high rates in the African American community. 87 Over 45,000 African Americans die prematurely every year from tobacco-caused diseases with an estimated 85% smoking menthol-flavored cigarettes. 88 Less than 10% of Black smokers used menthol cigarettes in the 1950s. 89 The Black community has been the focus of the tobacco industry's predatory marketing . especially in low-income areas. 90 The use of menthol makes it easier to smoke because of its cooling effect, increasing the intake of nicotine and toxic smoke while making it harder to quit smoking. 91 Smoking Waste
Cigarette butts are the #1 most littered item 92 on Earth (4.5 TRILLION a year )93 and #1 in California as well. 94 Butts are a major source of plastic pollution , each made of 15,000 strands of microplastic and are filled with toxic chemicals like arsenic and lead which get into our water and environment. 95•96 Additionally, tobacco product packaging adds 2 million tons of waste every year. 97 In the US, 5 vapes / e-cigarettes are thrown away every second , 150 million every year, and each one is e-waste (metal, plastic, circuitry, batteries) along with toxic chemicals. 98 Social Cost of Smoking
There is also a direct cost to society from smoking. According to the CDC , smoking cost the US over $600 billion in 2018 including more than $240 billion in healthcare, almost $185 billion in lost productivity and another $7 billion lost because of secondhand smoke. 99
City of Carlsbad: Stop Smoking
Everyone is at risk from smoking, not just smokers. Smoking hurt themselves and everyone around them and the environment, including expecting mothers and children. Please take action to protect youth and their future and stop smoking and other sources of air pollution in Carlsbad.
87 https· / /www cdc gov/tobacco /data statistics /fact sheets /fast facts 88 https: / /www.savingblacklives org/ files/ugd/29e3b2 5 leb6e3ea3284d40ble9322915cf8b82.pdf 89 https: / /www.tobaccofreekids .org/what -we-do/industry-watch/menthol -report 90 https: / /truthinitiative ore; /research-resources /targeted -communities /why-tobacco-racial-justice-issue 91 https://www .ncbi.nlm.nih .gov/pmc /articles /PMC3088444 / 92 https · //oceanconservancy ore;/m, -content(upJoads 1202110912020 -1cc-Report Web FINAk0909 pdf 93 https://www .ncbi.nlm .nih .gov/pmc /articles /PMC4129234 / 94 https· //uhs berkeJey edu /tobaccofacts
95 https: / /pubmed .ncbi.nlm.nih .gov /33360456 /
96 https: //pubmed .ncbi.nlm .nih.gov /26668440 /
97 https://www.cdc .gov/globalhealth /infographics /tobacco /tobacco -lifecycle.html 98 https://www.thebureauinvestigates.com/ disposable-vapes-flood-us-market 99 https: / /www.cdc.e;ov/tobacco /data statistics /fact sheets /fast facts /cost-and-ex,penditures.html 6 Please vote yes for Option 2 and direct staff to draft ordinances for a public smoking ban and also ban the sale of smoking products in the city as listed in the above Additional Actions.

Thr;ou,
s:a1.::: ~
Educational Director and Founder
S@CleanEarth4 Kids. org
(760) 518-2776
CleanEarth4 Kids. org
Additional Resources:

Please go to our Team 3: Smoking and Vaping Hurts Your Health page for more information. 100

1. Smoke-Free San Diego Resources 101

2. Implementing & Enforcing a Smokefree Multi-Unit Housing Ordinance 102

3. Secondhand Smoke in Multi-unit Housing 103

4. Thirdhand Smoke in Multi-unit Housing 104

5. US Laws for 100% Smokefree Multi-Unit Housing 105

6. Secondhand Marijuana Smoke Fact Sheet 106

7. Vaping: Deadly Products Target Kids 107

8. E-cigarette Use Exposes Teens to Toxic Chemicals 108

9. 4 Marketing Tactics E-Cigarette Companies Use to Target Youth 109

10. How the Vaping Industry is Targeting Teens and Getting Away With It 110 100 https: //cleanearth4kids.org/nosmoking
101 https· //smokefreesandiee;o.ore;/
102 https : / / www . changelabsolu tions . org / implemen ting -enforcing-smokefree-m ulti-unit-housing-ordinance 103
https · t (www cdph ca gov/Programs /CCDPHP/DCDIC/SecondhandSmokeinMulti -unitHousingFactSheet pdf 104 https : / /www .cdph .ca.gov/Programs I CCDPHP I DC DIC /ThirdhandSmokelnMulti-unitHousingFactSheet .pdf 105 https · t /no-smoke org /:wp-content /uploads /pdf/ smokefreemuh pdf 106 https : / /no-smoke . org / secondhand-marijuana-smoke -fact-sheet/ 107 https : //newsforkids.net/articles /2019 / 10 / 16/vaping -deadly -products -target -kids 108 https : / / psychiatry . ucsf. edu /news/ e-cigarette-use-exposes-teens -toxic-chemicals 109 h ttps : / / tru thinitiative. org /tobacco -industry -marketing/ 4-marketing-tactics -e-cigarette-companies-use-target 110 https · t (www.theglobeandmail.com/ canada / article-vaping-advertising-marketing-investigation / 7 03/21/2023
To Carlsbad City Council,

DISTRIBUTED DURING PUBLIC
COMMENT AT C~ NCIL
MEETING OF &2-2/,;2.o.;l~~
~1r9
On behalf of Chamberlain Property Management, I am writing to support efforts to expand smoke-free protections by creating smoke-free multi-housing communities within the City of Carlsbad.

As a property manager, I strive to make our community as safe and habitable as possible. I know that where you live can have a tremendous impact on your health. Living in multi-family communit ies where residents smoke or vape exposes others to secondhand smoke and serious health problems.

In homes, secondhand smoke can travel from outdoor areas and through doors, windows, hallways, ventilation ducts, and through gaps around outlets, fixtures and walls creating an unsafe environment for residents. While property managers, owners and landlords can voluntarily implement a smoke-free policy for their community, it can be challenging to enforce.

Having the authority from the Carlsbad City Council and Police Department will provide an added layer of authority to the property manager, helping residents comply with the policy. Carlsbad can join the list of over 84 cities in California who have adopted a policy that regulates smoking in multi-family housing in an effort to protect their residents from drifting secondhand smoke and long term impacts of overall smoke exposure.

Property managers that have implemented a smoke-free policy already understand the many benefits of such a policy, including healthier residents and staff, reduced renovation costs, risk of fires and insurance costs. A smoke-free multi-family housing policy would allow for all properties in the city to experience these benefits and more. It will add to the city's commitment to health equity among our diverse communities, provide support for those struggling with addiction and properly priorit ize providing healthy environments for residents to live in.

We appreciate the ongoing leadership and dedication to helping communities achieve their best health.

Thank you for your consideration,
Holly Bourke I Chamberlain Property Management I Regional Property Manager

AMERICAN NONSMOKERS' RIGHTS FOUNDATION
U.S. Laws for 100% Smokefree Multi-Unit Housing
July 1, 2023
This list represents communities with laws that regulate smoking in private units of multi-unit housing.

As of July 1, 79 municipalities have enacted a law at the city or county level that prohibits smoking in 100% of private units of rental multi-unit housing properties. Of these municipalities , 72 have laws that prohibits smoking in 100% of private units of both rental and owner-occupied multi-unit housing properties. The vast majority of the laws-68 municipalities-apply to properties with 2 or more units.

For public housing policies, see U.S. Public Housing Authority Policies Restricting or Prohibiting Smoking .

See Definitions and Explanatory Notes starting on page 4.

Visit our smokefree multi-unit housing page at no-smoke.org /at-risk-places/homes/ for more information.

Municipalities with Laws for 100% Smokefree Multi-Unit Housing:

This table represents communities that have municipal laws at the city or county level that prohibit smoking in 100% of private units of all specified types of multi-unit housing . These laws apply to both privately-owned and publicly-owned multi-unit residences , as well as all existing and future buildings, and do not perm it current residents to continue smoking in the building (i.e. no "grandfather" clause). Most, but not all, municipal laws include condominiums and other owner-occup ied properties.

Municipalities marked with# require multi-unit buildings to be 100% smokefree when the law is in full effect as of the listed Final Effective Date. Municipalities marked Some under"% of Units Currently Smokefree " will be 100% when the law is in full effect.
% of Units Final Effective Minimum Includes Includes Municipality State Currently Date Number of Patio/ Condos Smokefree Units Balcony

1. Alameda CA 100% 1/1/2013 2 Yes Yes

2. Alameda County CA 100% 7/1/2022 2 Yes Yes

3. Albany CA 100% 3/24/2018 2 Yes Yes

4. Bell Gardens CA 100% 6/1/2021 3 Yes Yes

5. Belmont CA 100% 1/8/2009 2 Yes Yes

6. Belvedere CA 100% 11/9/2017 2 Yes Yes

7. Benicia CA 100% 9/2/2020 2 Yes Yes

8. Berkeley CA 100% 5/1/2014 2 Yes Yes

9. Beverley Hills CA 100% 1/1/2019 2 Yes Yes

10. Brisbane CA 100% 6/3/2017 2 Yes Yes

11. Burlinqame CA 100% 2/13/2016 2 Yes Yes

12. Clayton CA 100% 5/1/2019 2 Yes Yes

13. Comoton CA 100% 1/1/2013 3 Yes Yes

14. Concord CA 100% 1/1/2021 2 Yes Yes

15. Contra Costa County CA 100% 7/1/2019 2 Yes Yes

16. Corte Madera CA 100% 6/17/2022 2 Yes Yes

17. Cotati CA 100% 1/1/2017 2 Yes Yes
% of Units Final Effective Minimum Includes Includes Municipality State Currently Date Number of Patio/ Condos Smokefree Units Balcony

18. Crescent City CA 100% 1/1/2022 2 Yes Yes

19. Cudahy CA 100% 1/3/2020 2 Yes Yes

20. Culver Citv CA 100% 5/26/2016 2 Yes Yes

21. Cupertino CA 100% 10/1/2021 2 Yes Yes

22. Daly City CA 100% 1/21/2014 2 Yes No

23.Danville CA 100% 5/1/2016 3 Yes Yes

24. El Cerrito CA 100% 10/1/2015 2 Yes Yes

25. El Monte CA 100% 8/19/2017 3 Yes Yes

26. Emeryville CA 100% 7/1/2019 2 N/S Yes

27. Firebauah CA 100% 7/1/2019 2 Yes Yes

28. Foster Citv CA 100% 11/5/2015 N/S Yes Yes

29. Fresno CA 100% 1/1/2022 2 No No

30. Guadalupe CA 100% 8/27/2020 2 Yes Yes

31. Half Moon Bay CA 100% 1/15/2020 2 Yes Yes

32. Healdsburq CA 100% 5/6/2020 2 N/S Yes

33. Hercules CA 100% 6/13/2020 10 Yes Yes

34. Huntington Park CA 100% 7/1/2013 2 Yes Yes

35. Larkspu r CA 100% 9/17/2022 2 Yes Yes

36. Los Gatos CA 100% 6/25/2017 2 Yes No

37. Manhattan Beach CA 100% 5/5/2017 3 Yes Yes

38. Marin Countv CA 100% 10/14/2021 2 Yes Yes

39. Mill Valley CA 100% 11/18/2016 2 Yes Yes

40. Millbrae CA 100% 1/1/2020 2 Yes Yes

41. Milpitas CA 100% 1/1/2022 2 Yes Yes

42. Monte Sereno CA 100% 10/1/2020 2 Yes Yes

43. Moorpark CA 100% 2/1/2019 2 Yes No

44. Morro Bay CA 100% 8/1/2020 2 Yes Yes

45. Mountain View CA 100% 1/1/2022 3 Yes Yes

46. Novato CA 100% 1/1/2018 2 Yes Yes

47. Pacific Grove CA 100% 10/1/2021 2 Yes Yes

48. Pacifica CA 100% 10/9/2020 2 Yes Yes

49. Palo Alto CA 100% 1/1/2018 2 Yes Yes
SO.Pasadena CA 100% 1/1/2013 2 Yes Yes

51. Petaluma CA 100% 1/1/2014 2 Yes Yes

52. Pinole CA 100% 10/18/2019 2 Yes Yes

53. Pleasanton CA 100% 7/1/2022 2 Yes No

54. Rancho Cordova CA 100% 11/4/2021 2 N/S Yes

55. Redwood City CA 100% 1/1/2019 2 Yes Yes

56. Richmond CA 100% 1/1/2011 2 Yes Yes

57. Rohnert Park CA 100% 4/23/2018 2 Yes Yes

58. Ross CA 100% 2/9/2020 2 Yes Yes

59. San Anselmo CA 100% 1/8/2016 2 Yes Yes

60. San Bruno CA 100% 2/22/2018 2 Yes Yes

61. San Carlos CA 100% 7/8/2020 2 Yes Yes

62. San Mateo CA 100% 11/14/2015 2 Yes Yes

63. San Mateo County CA 100% 2/4/2016 2 Yes Yes

64. San Pablo CA 100% 7/1/2021 2 Yes No

65. San Rafael CA 100% 11/14/2013 3 Yes Yes

% of Units Final Effective Minimum Includes Includes Municipality State Currently Date Number of Patio/ Condos Smokefree Units Balcony

66. Santa Clara CA 100% 8/1/2019 2 Yes Yes

67. Santa Clara County CA 100% 2/9/2012 2 Yes Yes

68. Santa Rosa CA 100% 8/7/2016 2 Yes Yes

69. Saratoqa CA 100% 9/16/2016 4 Yes Yes

70. Sebastopol CA 100% 11/2/2011 2 Yes Yes

71. Sonoma CA 100% 12/12/2016 2 Yes Yes

72. Sonoma County CA 100% 1/12/2013 2 Yes Yes

73. South San Francisco CA 100% 11/9/2017 2 N/S Yes

74. Sunnyvale CA 100% 9/23/2016 2 Yes Yes

75. Tiburon CA 100% 10/16/2018 4 Yes Yes

76. Union Citv CA 100% 2/23/2012 2 Yes No

77. Vallejo CA 100% 9/21/2022 2 Yes Yes

78. Walnut Creek CA 100% 1/30/2014 2 Yes Yes

79. Windsor CA 100% 8/15/2017 2 Yes Yes
# = Law requires multi-unit buildings to be 100% smokefree, but the law is not yet fully in effect.

Municipalities with Laws that Partially Restrict Smoking in Multi-Unit Housing :

This table represents communities that have municipal laws at the city or county level that restrict smoking in some private units of multi-unit housing, but do not require multi-unit buildings to be 100% smokefree.

The trend is now for commun ities to adopt laws that require multi-unit properties to be 100% smokefree, as listed in the chart above. It is not recommended that communities adopt the types of partial laws represented in the chart below.

Municipalities marked Some under "All Units Currently Smokefree?" have some buildings that are required to be 100% smokefree. Often, these laws prohibit smoking in all newly occupied buildings or newly leased units, but either do not address smoking in existing buildings or only apply to a certain percent of units in existing buildings.

Municipalities marked No under "All Units Currently Smokefree?" have no buildings required to be 100% smokefree now or in the future . These laws may apply to only a certain percent of units in existing and future buildings, or permit current residents to continue smoking in the building indefinitely (a "grandfather" clause).

Additionally , communities not represented on this list may have local laws that do not address smoking in private units , but restrict smoking in multi-unit housing to a lesser extent, such as by prohibiting smoking in indoor common areas or only on patios and balconies.

Min. %of All Units Initial Units Final Min. # Includes Municipality State Currently Effective Currently Effective Date of Units Condos Smokefree? Smokefree Date

1. Baldwin Park CA Some 100% new/ 6/21/2012 12/2/2014 2 Yes 80% existing

2. Burbank CA No N/S 5/1/2011 5/1/2011 N/S Yes

3. Calabasas CA No 80% 1/1/2012 Not Specified 2 No

4. Dublin CA No 75% 1/1/2011 1/1/2013 16 N/S

All Units Min. %of Initial Units Final Min.# Includes Municipality State Currently Currently Effective Effective Date of Units Condos Smokefree? Smokefree Date

5. Fairfax CA No 75% 9/1/2012 9/1/2012 4 N/S

6. Fremont CA Some 100% new/ 2/1/2017 Not Specified 2 Yes 0% existing

7. Glenda le CA Some 100% new/ 6/27/2013 Not Specified 2 Yes 0% existing 100% new/

8. Jurupa Valley CA Some designated 3/6/2021 Not Specified 3 No existing units

9. Lafayette CA Some 100% new/ 2/10/2014 Not Specified 3 Yes 0% existing

10. Loma Linda CA No 70% 1/1/2012 Not Specified 2 No

11. Oakley CA No 100% new/ 3/13/2014 4/1/2014 2 Yes 0% existing

12. Pleasant Hill CA Some 100% new/ 5/5/2010 Not Specified 4 No 50% existing

13. Riverside CA No 100% new/ 7/28/2022 7/28/2022 2 No 0% existing 100% new/

14. Santa Monica CA Some designated 5/21/2013 Not Specified N/S Yes existing units

15. Sausalito CA Some 100% new/ 8/30/2012 Not Specified 2 Yes 80% existing

16. South Pasadena CA Some 100% new/ 3/3/2011 Not Specified 2 Yes 80% existing

17. Temecula CA No 25% 12/7/2007 6/7/2012 10 N/S

18. West Hollywood CA Some 100% new/ 5/19/2021 7/15/2021 3 Yes 0% existing Definitions and Explanatory Notes:

Communities on the two charts of municipal laws adopted a municipal ordinance to regulate smoking in all (first chart) or some (second chart) types of multi-unit housing. # = Law will require all multi-unit buildings to be 100% smokefree as of a future date, but currently the law provides partial coverage.

Minimum Percent of Units Currently Smokefree :

The percent of specified multi-unit housing that is currently required to be smokefree:
100%: All units in specified multi-unit housing must be smokefree.

Another stated %: The stated percent of units in specified multi-unit housing must be smokefree.

N/S = Not Specified: The law does not specify the percent of units currently required to be smokefree or the percent of units currently required to be smokefree cannot determined by how the law is written, such as: applying only to new multi-unit buildings but not to existing multi-un it buildings or designating at

certain percentage of units as nonsmoking or limiting smoking to certain buildings or permitting current residents to continue to smoke indefinitely.

Initial Effective Date:

The date when some multi-unit housing must be 100% smokefree. For example, Baldwin Park, CA (marked as Some for All Units Currently Smokefree) requires that all newly occupied buildings must be 100% smokefree as of 6/21/2012, which is the Initial Effective Date. Baldwin Park also requires that at least 80% of units in all existing buildings be smokefree . Because existing buildings may never be fully smokefree, the Final Effective Date is "Not Specified."
Final Effective Date:

For communities marked as Yes or Some for All Units Currently Smokefree, the Final Effective Date is when all buildings must be 100% smokefree. For communit ies marked as No for All Units Currently Smokefree, the Final Effective Date is when the strongest provisions of the law goes into effect.

Not Specified:

The law does not specify when all multi-unit buildings must be completely smokefree, due to provisions such as: law permits current residents to continue smoking indefinitely or law applies only to newly constructed buildings or law applies only to a certain percent of existing units.

ANR Foundation is actively collecting additional laws. If you know of local laws that you think should be included on the list, or want to inquire about additional information on particular laws, please contact the ANR Foundation at info@no -smoke .org or 510-841-3032.

May be reprinted with appropriate credit to the American Nonsmokers' Rights Foundation. © Copyright 1998 - 2023 American Nonsmokers' Rights Foundation. All rights reserved. [LS-41)