TO: HONORABLE MAYOR FROM: Christopher Burton
AND CITY COUNCIL
SUBJECT: SEE BELOW DATE: March 7, 2022
Approved Date
3/10/22
SUBJECT: AMENDMENT TO CHAPTER 9.44 OF TITLE 9 OF THE SAN JOSE
MUNICIPAL CODE - IN ALIGNMENT WITH CITY COUNCIL POLICY
PRIORITY #18: SMOKE-FREE HOUSING
RECOMMENDATION
As recommended by the Neighborhood Services and Education (NSE) Committee, approve an ordinance amending Chapter 9.44 - Regulation of Smoking of Title 9, Health and Safety, of the San José Municipal Code (SJMC) to prohibit smoking inside multifamily housing units, except for smoking and vaping of cannabis, and to reduce the exposure to secondhand smoke in alignment with and in completion of City Council Policy Priority #18: Smoke-Free Housing.
OUTCOME
Adoption of the proposed ordinance will amend Title 9, Chapter 9.44 of the SJMC and establish provisions to:
1. Prohibit smoking, including cigarettes, cigars, cigarillos, hookahs and pipes, and electronic smoking devices (such as e-cigarettes and vape pens), but will not prohibit cannabis smoking or vaping, inside multifamily housing units subject to the Residential Occupancy Permit regulations (SJMC Title 17, Chapter 17.20, Part 8 Residential Occupancy Permit) including the interior of each unit, private and shared balconies, patios, and courtyards;
2. Reduce exposure to secondhand smoke; and
3. Complete City Council Policy Priority #18: Smoke-Free Housing and remove it from the 2020-2021 City Council Policy Priority List.
COUNCIL AGENDA: 3/22/22
FILE: 22-361
ITEM: 7.1
HONORABLE MAYOR AND CITY COUNCIL
March 7, 2022
Subject: Amendment to Chapter 9.44 of Title 9 of the San José Municipal Code in Alignment with City Council Policy Priority #18: Smoke-free Housing
EXECUTIVE SUMMARY
On October 17, 2017, the City Council voted to add the Smoke-Free Housing Council Policy Priority to the 2017-2018 Council Policy Priority List with a ranking of #22. The Smoke-Free Housing Council Policy Priority was again ranked by City Council as priority #23 in 2019 and #18 in 2020. The Council Policy Priority directed staff to explore a prohibition of smoking in multifamily housing units.
In 2020, the Department of Planning, Building and Code Enforcement’s Code Enforcement Division (Code Enforcement) received $64,266 in Tobacco-Free Communities funding and in- kind County of Santa Clara (County) policy consultant support from the Santa Clara County Public Health Department (SCCPHD) Healthy Cities Program for a term beginning on February 2, 2020, through June 30, 2021. The purpose of the funding was to explore options and policy recommendations regarding a citywide strategy to reduce exposure to secondhand smoke in multifamily housing complexes and to reimburse staff costs and resources expended to carry out the Council Priority #18 Smoke-Free Housing work plan through the end of the 2020-2021 fiscal year. On June 15, 2021, the grant duration was extended to September 2021.
In August 2020, staff began work on the Smoke-Free Housing work plan including research and benchmarking, outreach, and policy development to accomplish the following goals:
1. Explore a policy to prohibit smoking in multifamily housing;
2. Reduce exposure to secondhand smoke and associated health risks;
3. Align with County/local initiatives for smoke-free housing; and
4. Provide support to property owners, managers, tenants, and key stakeholders.
Staff presented a status report of the Council Policy Priority #18: Smoke-Free Housing to the NSE Committee on December 10, 2020 and April 8, 2021, and was directed by the NSE Committee to return to Council in 2021 with a proposed ordinance.
Between January and August 2021, staff continued to conduct community and stakeholder outreach and developed the final proposed ordinance and implementation and enforcement plan.
Feedback from the stakeholder outreach including lobbyists, community organizations, property owners, property managers, and tenants ranged from general support of the proposed ordinance to objections and proposed alternatives, specifically removing cannabis from the list of prohibited substances or allowing vaping of cannabis. Stakeholders also proposed to expand the smoking prohibition to include duplexes and condominiums and expressed concern for potential smoking-related evictions.
At the September 28, 2021 City Council meeting, City Council deferred the item and referred it back to the NSE Committee for more discussion regarding the proposed inclusion of cannabis and material lease violation provisions.
HONORABLE MAYOR AND CITY COUNCIL
March 7, 2022
Subject: Amendment to Chapter 9.44 of Title 9 of the San José Municipal Code in Alignment with City Council Policy Priority #18: Smoke-free Housing
On December 9, 2021, staff presented the Council Policy Priority #18: Smoke-Free Housing to the NSE Committee including policy alternatives regarding the inclusion of cannabis and enforcement, specifically exempting cannabis smoking or vaping, reducing fine amounts, and removing smoking as a material lease violation. The NSE Committee unanimously voted to cross reference the item to the full Council and accept staff recommendation with the inclusion of policy alternatives #1 and #2 to exempt cannabis smoking/vaping and inclusion of policy alternative #1 to remove the requirement to include smoking as a material lease violation.
The proposed ordinance amendment will prohibit smoking including cigarettes, cigars, cigarillos, hookahs, pipes, and electronic smoking devices (such as e-cigarettes and vape pens), inside multifamily housing units including private and shared balconies, patios, and courtyards in buildings subject to the Residential Occupancy Permit pursuant to the SJMC, except for hotels and motels. The proposed ordinance, however, will not prohibit cannabis smoking or vaping.
Staff recommends that City Council approve an ordinance amending SJMC Chapter 9.44- Regulation of Smoking of Title 9, Health and Safety to prohibit smoking inside multifamily housing units, except for smoking or vaping of cannabis, as described above, and to reduce the exposure to secondhand smoke in alignment with the NSE Committee recommendation and completion of Council Policy Priority #18: Smoke-Free Housing.
BACKGROUND
Rules and Open Government Committee- September 20, 2017
On September 20, 2017, former Councilmember Rocha brought forward a memorandum to the Rules and Open Government Committee, dated September 14, 2017, recommending his proposed Smoke-Free Housing item be considered as part of the October 17, 2017 Council Policy Priority Setting Session. The proposal directed staff “to explore a prohibition on smoking in multifamily housing units”. The Rules and Open Government Committee voted to accept his recommendation and placed the proposed item on priority setting.
Council Policy Priority Setting Sessions
On October 17, 2017, the City Council held a Council Policy Priority Setting session to approve new items and rank items for the Council Policy Priority list. The Smoke-Free Housing Council Policy Priority proposal received one vote and was added to the 2017-2018 Council Policy Priority List with a ranking of #22.
On March 5, 2019, City Council held a Council Policy Priority Setting session to remove completed priorities, approve new items, and rank items on the Council Policy Priority list. The Smoke-Free Housing Policy Priority received one vote and was ranked as priority #23.
HONORABLE MAYOR AND CITY COUNCIL
March 7, 2022
Subject: Amendment to Chapter 9.44 of Title 9 of the San José Municipal Code in Alignment with City Council Policy Priority #18: Smoke-free Housing
On February 25, 2020, City Council conducted the 2020-2021 Council Policy Priority Setting Session adding and ranking seven new priority items. The Smoke-Free Council Policy Priority received three votes and moved up from #23 to #18 on the 2020-2021 Council Policy Priority List.
Santa Clara County Public Health Department Funding
Code Enforcement applied for the Healthy Cities Program--Tobacco-Free Communities funding on October 26, 2018, to explore options and policy recommendations regarding a citywide strategy to reduce exposure to secondhand smoke in multifamily housing. On November 5, 2018, Code Enforcement was notified of an award of funding by the SCCPHD’s Healthy Cities Program. Code Enforcement was awarded $64,266 in funding and in-kind consultant support for a term beginning on February 2, 2020 through June 30, 2021, to reimburse staff costs and resources expended to carry out the Smoke-Free Housing work plan through the end of fiscal year 2020-2021. SCCPHD notified staff on September 30, 2020, of the option to extend the grant funding term from June 30, 2021 to mid-September 2021 to offset delays due to the COVID-19 pandemic. On June 15, 2021, the grant duration was extended to September 2021.
Neighborhood Services and Education Committee
On December 10, 2020, staff presented the City Council Policy Priority #18: Smoke-Free Housing status report to the NSE Committee including work plan scope, actions completed, and next steps.1 The NSE Committee accepted staff’s status report and recommended that staff continue to complete the steps outlined in the work plan and return to the NSE Committee in spring 2021 with policy recommendations.
Staff returned to the NSE Committee on April 8, 2021,2 and presented a second status report including the final policy recommendations. The NSE Committee accepted the status report and directed staff to return to City Council with the proposed ordinance amendment to SJMC Title 9, Chapter 9.44 Regulation of Smoking in 2021.
At the September 28, 2021 City Council meeting, City Council deferred the item and referred it back to the NSE Committee to further examine the proposed inclusion of cannabis and the requirement to include smoking as a material lease violation.
On December 9, 20213, staff presented the Council Policy Priority #18: Smoke-Free Housing to the NSE Committee including policy alternatives regarding the inclusion of cannabis and enforcement, specifically exempting smoking and vaping of cannabis, reducing fine amounts, and removing smoking as a material lease violation. The NSE Committee unanimously voted to
1 Neighborhood Services and Education Committee Meeting, December 10, 2020, Item d.4 2 Neighborhood Services and Education Committee Meeting, April 8, 2021 Item d.4 3Neighborhood Services and Education Committee Meeting, December 9, 2021 Item 3.
HONORABLE MAYOR AND CITY COUNCIL
March 7, 2022
Subject: Amendment to Chapter 9.44 of Title 9 of the San José Municipal Code in Alignment with City Council Policy Priority #18: Smoke-free Housing
cross reference the item to the full Council and accept staff recommendation with the inclusion of policy alternatives #1 and #2 exempting cannabis smoking and vaping and inclusion of enforcement policy alternative #1 removing the requirement to include smoking as a material lease violation.
Current Municipal Code Regulations
The SJMC Title 9, Chapter 9.44, Regulation of Smoking, currently prohibits smoking in publicly accessible and common areas of multifamily housing, including enclosed and unenclosed areas of apartments, condominiums, and mobile home parks which are open to public access or unrestricted common access by residents. However, the Municipal Code does not prohibit smoking inside multifamily housing units, such as apartments and condominiums.
ANALYSIS
Research and Benchmarking
Staff conducted research of existing ordinances, policies, and best practices for reducing exposure to secondhand smoke or prohibiting smoking in multifamily housing. Research included benchmarking of several cities within the San Francisco Bay Area and Santa Clara County to gather information on existing regulations and enforcement of smoking in multifamily housing. Staff found that between November 2019 and July 2020, several jurisdictions within Santa Clara County adopted Smoke-Free Housing ordinances that prohibit smoking inside multifamily units. The County and eight cities within the county have adopted laws requiring multifamily housing to be 100% smoke-free. These cities include Cupertino, Los Gatos, Milpitas, Monte Sereno, Mountain View, Palo Alto, Santa Clara, and Sunnyvale. These cities included cannabis in their Smoke-Free Housing policies.
Stakeholder Outreach and Community Engagement
Between August 6, 2020 and October 21, 2021, staff conducted outreach and engagement with a variety of key stakeholders and the public including meetings, a community survey, webinars, mailings, and web postings, to provide information regarding the proposed Smoke-Free Housing ordinance and to receive input. Staff also consulted local jurisdictions to gain insights about implementation strategies, impacts on residents, and outcomes of their Smoke-Free Housing policies. Staff met with First Community Housing to learn about its Smoke-Free Housing policy that has been implemented for over ten years at its affordable housing developments. Staff also met with the Law Foundation of Silicon Valley (Law Foundation) and several community organizations and local agencies recommended by the City’s Office of Racial Equity. The following summarizes the result of staff’s outreach and engagement.
HONORABLE MAYOR AND CITY COUNCIL
March 7, 2022
Subject: Amendment to Chapter 9.44 of Title 9 of the San José Municipal Code in Alignment with City Council Policy Priority #18: Smoke-free Housing
Community Survey on Smoke-Free Housing
A community survey was conducted by the County and Code Enforcement to receive feedback on the proposed Smoke-Free Housing ordinance. The survey was posted from August 6, 2020 through October 31, 2020, on the SCCPHD website and the Code Enforcement website and was published on various social media platforms including the NextDoor app and Planning, Building, and Code Enforcement’s Facebook page. The survey was also included in the October 2020 Code Connection Newsletter mailed to 6,700+ multifamily property owners.
A total of 1,442 people responded to the online survey. The results of the survey indicated that:
• 69% agreed that smoking should be prohibited inside apartments, duplexes, condominiums, and townhouses and that they had been exposed to secondhand smoke within the last 30 days.
• 65% had been exposed to secondhand smoke that drifted from the outside into their units through windows, balconies, and doors.
• 26% reported that smoke drifted from another unit (through the walls or ventilation system).
• 34% reported that their housing complexes already had a policy in effect to prohibit smoking.
Of the total respondents, 63.62% identified as female, 50.21% identified as white, and 41.34% reported earnings of 100k or more annually (see Table 1 below).
Table 1: Smoking in Multi-Unit Housing Survey Respondents by Identified Race and Income Level
Data from City of San José Multi-Unit Housing (MUH) Survey – Dashboard
50%
17.11%
20.39%
3.07%
9.22%
Survey Respondents by
Identified Race
White Hispanic/Latino
Asian Black
Other
41.34%
14.27%
10.93%
4.24%
11.82%
17.40%
Survey Respondents Income Level
100k+ 75-99k
50-74k 35-49k
34k or less/Other Prefer not to answer
HONORABLE MAYOR AND CITY COUNCIL
March 7, 2022
Subject: Amendment to Chapter 9.44 of Title 9 of the San José Municipal Code in Alignment with City Council Policy Priority #18: Smoke-free Housing
Local Jurisdictions
Staff consulted the cities of Berkeley and Sunnyvale to gather insights and guidance regarding their instituted Smoke-Free Housing policies. The City of Berkeley, which implemented a Smoke-Free Housing policy in 2014, advised staff to use clear and direct policy language and conveyed the importance of conducting ongoing education efforts. Berkeley staff also provided an overview of its enforcement process including a provision that the complaining party filing the smoking complaint must be a resident of the same complex. Lastly, Berkeley provided staff with a sample letter issued to the property owners and sample language that could be incorporated into the leases executed with the residents. The City of Sunnyvale provided staff with copies of its outreach letter issued to the property owners and/or managers and a timeline of its outreach efforts. Specific recommendations, such as the requirement that the complaining party must reside in the same complex to initiate a complaint, and suggestions, such as the outreach letter language used by the City of Sunnyvale, will be incorporated into San Jose’s implementation and enforcement strategy.
First Community Housing
Staff met with First Community Housing, which owns and manages 1,400 affordable housing units and has a Smoke-Free Housing policy. First Community Housing shared that it has had a Smoke-Free Housing policy in place at its properties for over ten years with much success. First Community Housing’s representative expressed that implementation of its Smoke-Free Housing Policy has been positively received by residents. The representative also emphasized the importance of applying smoke-free housing policies to a building or complex universally and not piecemeal, as it creates challenges and becomes difficult to monitor and manage each smoking versus nonsmoking unit of the building. Although considered a lease violation, First Community Housing, did not have data on smoking-related evictions.
Smoke-Free Housing Advocates
Staff met with the Tobacco-Free Coalition of Santa Clara County to hear comments, concerns, and feedback. The group shared concerns about not including smoking prohibitions for condos and duplexes and felt that the provision should be universally applied.
Cannabis Industry Representatives
Staff met with cannabis industry representatives and lobbyists including the Silicon Valley Cannabis Alliance, California Cannabis Industry Association, Americans for Safe Access, Legal Cannabis for Consumer Safety, CAL NORML, and CannaSafe Testing Lab and with a cannabis lobbyist and other cannabis industry representatives and heard their concerns about the inclusion of cannabis in the proposed ordinance. The lobbyist and representatives expressed that the proposed ordinance would be a violation of California’s Compassionate Use Act for residents that use cannabis for medical purposes. The representatives also conveyed that vapes are safer than the combustion of cannabis, that the proposed ordinance would target people of color, and
HONORABLE MAYOR AND CITY COUNCIL
March 7, 2022
Subject: Amendment to Chapter 9.44 of Title 9 of the San José Municipal Code in Alignment with City Council Policy Priority #18: Smoke-free Housing
impact lower-income residents or otherwise disadvantaged communities who cannot afford homeownership and that prohibiting the smoking of cannabis in multifamily units would increase public intoxication. The attendees expressed that, unlike tobacco products, cannabis cannot be smoked outdoors and thus prohibition would create disparity among cannabis users. Proposed policy alternatives raised by the representatives included:
1. Explore allowing cannabis in outdoor designated smoking areas
2. Revise ordinance to allow vaping of cannabis
3. Enact policies to allow smoke lounges in the community as a permitted use
Smoke-Free Multiple Housing Webinars
Staff conducted three Smoke-Free Housing webinars held on May 19, 2021, July 21, 2021, and August 18, 2021, for property owners, property managers, and tenants to give an overview of the proposed ordinance amendment and implementation and enforcement strategy and provide an opportunity to express concerns and provide feedback. Staff also presented the proposed ordinance in Spanish to the Santee Neighborhood Organization on April 15, 2021.
Overall, the participants were supportive of the proposed ordinance, but they did have questions and concerns regarding enforcement. Some of the concerns expressed by the attendees included a desire for a more expedited enforcement process rather than a gradual, phased approach. Others thought the enforcement plan was not robust enough to deter smoking. Some attendees requested guidance be provided regarding adding language and modifying leases to include the Smoke- Free Housing Ordinance regulations. Santee residents were generally overall supportive of the proposed ordinance.
Information gathered by the SCCPHD showed that landlords are increasingly choosing to adopt smoking restrictions in properties they own or manage for a variety of reasons including to reduce cleaning costs from a unit with a smoker; to lower the fire risk and related insurance costs; and in response to tenants’ demands.
Racial and Health Equity Analysis
In January 2021, staff met with the City’s Office of Racial Equity and, upon its recommendations, conducted outreach with the following local agencies: Path (People Assisting the Homeless), Adobe Services, the Law Foundation, Indian Health Center, and Oakland Roots Clinic. Staff engaged with each agency to inform them of the proposed Smoke-Free Housing Ordinance and to solicit feedback. In general, the primary concern from the agencies was the potential negative impact on the hard-to-house population. Agencies also expressed concern about possible evictions and did not support the issuance of fines or citations. The Law Foundation recommended a gradual approach for enforcement and objected to the incorporation of smoking as a material lease violation given the inherent risk of eviction of vulnerable, hard-to- house populations. Staff emphasized that the intent of the ordinance is to reduce secondhand smoke exposure to all residents and not to require individuals to stop smoking. Staff also
HONORABLE MAYOR AND CITY COUNCIL
March 7, 2022
Subject: Amendment to Chapter 9.44 of Title 9 of the San José Municipal Code in Alignment with City Council Policy Priority #18: Smoke-free Housing
discussed disparities and racial equity-related components with SCCPHD for consideration in developing this policy. Preliminary analysis conducted by the County of median income levels along with general demographics and other geographical information, such as the number of retailers within given zip codes, indicated lower-income residents within Council Districts 3, 5, and 7 may be disproportionately impacted by second-hand smoke issues within multifamily housing.
Proposed Ordinance Amendment
The proposed ordinance amendment to SJMC Title 9, Chapter 9.44 - Regulation of Smoking to prohibit smoking in multifamily housing and implement City Council Policy Priority #18 includes but is not limited to:
1. Prohibition of smoking, including cigarettes, cigars, cigarillos, hookahs, pipes, and electronic smoking devices, such as e-cigarettes and vape pens, in multifamily housing of three units or more, including private and shared balconies, patios, and courtyards.
2. Cannabis smoking or vaping exemption.
3. Exemption for hotels and motels that meet state and local law requirements.
4. Establishment of guidelines for enforcement.
The proposed ordinance would apply to all multifamily housing properties that are required to maintain a Residential Occupancy Permit and be enrolled in the Multiple Housing Program. The proposed ordinance would not apply to duplexes or condominiums at this time. Pursuant to the SJMC, properties required to obtain Residential Occupancy Permits as part of the Multiple Housing Program include properties with three units or more such as single-room occupancy units, triplexes, apartments, hotels, motels, sororities, and fraternities. Hotels and motels, however, will be exempt from the proposed Smoke-Free ordinance regulations. There are currently 6,747 buildings and over 103,000 units (including hotels and motels) enrolled in the Multiple Housing Program.
The proposed ordinance also incorporates policy alternatives to the originally proposed ordinance amendment, as recommended by the NSE Committee on December 9, 2021, to exclude cannabis smoking/vaping from the prohibited smoking provisions (Cannabis Smoking Policy Alternatives #1 and #2) and eliminate the requirement to include smoking as a material lease violation (Enforcement Policy Alternative #1). A summary of potential benefits and risks associated with these policy alternatives is captured in Table 2 below.
HONORABLE MAYOR AND CITY COUNCIL
March 7, 2022
Subject: Amendment to Chapter 9.44 of Title 9 of the San José Municipal Code in Alignment with City Council Policy Priority #18: Smoke-free Housing
Table 2: Proposed Ordinance Policy Alternatives Pros and Cons
Cannabis Smoking Policy Alternatives #1 and #2:
#1-Exempt cannabis smoking; and
#2-Exempt vaping of cannabis only
Pros
• Would allow occupants to continue to smoke and/or vape cannabis Cons
• Not in alignment with state law
• Would allow for potential exposure to cannabis secondhand smoke • Creates challenges in enforcement
• May disproportionately impact low income and people of color • Does not meet goals of CPP#18
• Secondhand cannabis smoke contains carcinogens like cadmium, chromium, benzene, and other ingredients in Prop 65 list of toxins
Enforcement Policy Alternative #1: Remove proposed requirement to include smoking as a material lease violation
Pros
• Reduces risk of eviction due to smoking violations
Cons
• Would limit property owner/manager ability to bring about compliance with smoking regulations
• Creates challenges in enforcement- more onerous on City to enforce; highly transient/difficult to gather evidence
• Property owners may have difficulty evicting serious violators due to a lease violation • Would require additional outreach to property owners/managers Enforcement Policy Alternative #2: Adopt reduced fine amounts for smoking in multifamily units (currently $250, $500, $1000)
Pros
• Reduces the financial burden of violation
Cons
• May not be sufficient to deter behavior/bring about compliance
Implementation and Enforcement Strategy
Pending City Council adoption of the ordinance amendment, staff will work to complete the ordinance implementation strategy to educate stakeholders and the public of the requirements of the ordinance and timeline for compliance. (see Table 3).
HONORABLE MAYOR AND CITY COUNCIL
March 7, 2022
Subject: Amendment to Chapter 9.44 of Title 9 of the San José Municipal Code in Alignment with City Council Policy Priority #18: Smoke-free Housing
Implementation Plan - Phased Approach
Using a phased approach to implement the Smoke-Free Housing ordinance would allow the City ample time to notify and educate residents, property owners, and property managers of the new requirements before enforcement begins. The City will conduct additional outreach through mailings, informational brochures, and online meetings and will respond to questions and concerns.
Throughout each phase, staff will conduct outreach and education to tenants and property owners and managers, providing awareness of the effects of second-hand smoke as well as information on classes, seminars, and treatments at cessation centers for individuals who want to quit smoking. Referrals to the Law Foundation will be made for individuals who may be impacted due to non-compliance with the smoking restrictions. Materials such as “no smoking” signs and informational brochures in English, Spanish, and Vietnamese will be made available to multiple housing properties. In coordination with the Department of Planning Building and Code Enforcement’s Communications Team, staff will update Code Enforcement’s Smoke-Free Housing webpage, as appropriate, to provide ongoing online resources and information for stakeholders and the public.
Table 3: Proposed Phased Implementation Strategy
Timeline
Activity
March 23, 2022
– June 30, 2022
Create and distribute Smoke-free Housing brochure.
Update Code Enforcement website to include a Frequently Asked Questions (FAQ) document to educate stakeholders.
July 1, 2022 –
Aug. 31, 2022
Implementation of Phase 1: New construction receiving a Residential Occupancy Permit on or before July 1, 2022. Staff will work with the property owners and managers to enroll them in the Multiple Housing Program, educate them about the new ordinance, and ensure that smoking prohibitions are included in leases prior to tenant occupancy.
Sept. 1, 2022-
Oct. 31, 2022
Implementation of Phase 2: Existing multiple housing stock and new construction receiving a Residential Occupancy Permit after July 1, 2022.
Hotels or motels that meet state and local law requirements would be exempt.
Property owners would be required to provide notice to all existing tenants of the new ordinance requirements by March 1, 2022
Jan. 1, 2023 Enforcement of all multifamily buildings begins Ongoing Continue to update the website, promote cessations centers, and voluntary compliance. Provide continued education during proactive Multiple Housing Program routine and complaint inspections.
HONORABLE MAYOR AND CITY COUNCIL
March 7, 2022
Subject: Amendment to Chapter 9.44 of Title 9 of the San José Municipal Code in Alignment with City Council Policy Priority #18: Smoke-free Housing
HONORABLE MAYOR AND CITY COUNCIL
March 7, 2022
Subject: Amendment to Chapter 9.44 of Title 9 of the San José Municipal Code in Alignment with City Council Policy Priority #18: Smoke-free Housing
Enforcement of Smoke-Free Housing Ordinance
Following the phased implementation, smoke-free housing ordinance enforcement for all multifamily buildings would begin January 1, 2023. Enforcement would primarily be complaint- driven and self-enforcing or in partnership with multifamily property owners and managers.
When a complaint is received, the initial outreach would take place between the property owner or manager and the tenant(s). In alignment with the proposed ordinance amendment, the complaining party must reside within the property. After two verified complaints within a 12- month period, the complaint would be escalated and referred to Code Enforcement by the property owner or manager for follow-up and enforcement. Code Enforcement would then proceed with the following enforcement process:
1) Warning Notice: Once the City receives a referral from the property owner or manager that a multifamily housing tenant has repeatedly violated the smoking ordinance, staff will issue a Warning Notice to the tenant. The tenant would be responsible for occupants, including visitors, who smoke in the unit. The notice would include information about the ordinance and compliance requirements and the health impacts of exposure to secondhand smoke. The notice would also include smoking cessation resources available to residents.
2) Citation: If at least two residents in two separate units of the multiple housing property files a complaint with the City within twelve months of the notice issuance, the tenant may be issued an administrative citation.
In general, communities that have adopted smoke-free multifamily housing ordinances have not been overwhelmed by complaints following the initial phases. Per staff research and benchmarking, the adoption of smoke-free housing ordinances typically generates a high volume of complaints in the initial implementation phase but declines gradually in the months and years that follow. Staff anticipates the Smoke-Free Housing ordinance will become self-enforcing over time as seen with prior smoking laws such as outdoor smoking and smoking in restaurants prohibitions. Code Enforcement will focus its enforcement efforts by leveraging opportunities for education and outreach while conducting proactive Multiple Housing Program annual routine inspections and/or complaint inspections.
CONCLUSION
The proposed ordinance amendment to SJMC Title 9, Chapter 9.44 Regulation of Smoking will prohibit smoking inside multifamily housing units, except for condominiums, duplexes, and hotels/motels, but will not prohibit cannabis smoking/vaping. Staff received a varied response from smoke-free advocates and the cannabis industry regarding the proposed ordinance amendment. Smoke-free advocates desired more strict ordinance requirements including adding condominiums and duplexes to the ordinance and prohibiting cannabis smoking. Opponents argued the inclusion of cannabis would have a substantial, disproportionate impact on cannabis
HONORABLE MAYOR AND CITY COUNCIL
March 7, 2022
Subject: Amendment to Chapter 9.44 of Title 9 of the San José Municipal Code in Alignment with City Council Policy Priority #18: Smoke-free Housing
users including people of color, low-income residents, and other disadvantaged communities.
Pending ordinance adoption, staff will continue to complete the Council Policy Priority #18:
Smoke-Free Housing work plan including the proposed implementation and enforcement strategy. The proposed ordinance incorporates several policy alternatives as recommended by the NSE Committee and will meet the primary goals of City Council Policy Priority #18.
EVALUATION AND FOLLOW UP
Pending adoption of the ordinance amendment, staff will carry out the implementation and enforcement strategy (outlined in Table 3 above) and continue to engage with stakeholders, non- profits, and the public to provide outreach, education, and support through the transition and implementation of the new ordinance. Staff will proactively check for compliance while conducting Multiple Housing Program routine inspections or complaint inspections, ensuring properties are meeting requirements. Staff will also continue to coordinate with SCCPHD to promote education, provide resources, and inform the community about cessation centers.
CLIMATE SMART SAN JOSE
The recommendation in this memorandum has no effect on Climate Smart San José energy, water, or mobility goals.
PUBLIC OUTREACH
Staff conducted outreach and engagement with a variety of community organizations and key stakeholders, such as multifamily property owners and managers, tobacco-free advocates, cannabis advocates and industry representatives, and the public including three Smoke-Free webinars between January and August 2021. This memorandum and draft ordinance will be posted on the City’s website for the March 22, 2022 City Council meeting agenda.
COORDINATION
This memorandum has been coordinated with the City Attorney’s Office and the City Manager’s Budget Office. Staff also consulted with the Office of Racial Equity, SCCPHD, and the County policy consultant.
HONORABLE MAYOR AND CITY COUNCIL
March 7, 2022
Subject: Amendment to Chapter 9.44 of Title 9 of the San José Municipal Code in Alignment with City Council Policy Priority #18: Smoke-free Housing
COMMISSION RECOMMENDATION/INPUT
Although this item was not presented to a City Commission, staff presented a status report of the Council Policy Priority #18: Smoke-free Housing to NSE Committee on December 10, 2020 and April 8, 2021, and was directed by NSE Committee to return to Council in 2021 with a proposed ordinance.
On September 28, 2021, City Council deferred the item during Orders of the Day and referred it back to the NSE Committee for more discussion regarding the proposed inclusion of cannabis and material lease violation provisions.
Staff presented the City Council Policy Priority #18 Smoke-Free Housing including the proposed ordinance amendment key elements, policy alternatives regarding cannabis and enforcement, the enforcement process, and the implementation plan to the NSE Committee on December 9, 2021.
The NSE Committee unanimously voted to cross reference the item to the full Council and accept staff recommendation with the inclusion of policy alternatives #1 and #2 to exempt cannabis smoking/vaping and inclusion of policy alternative #1 to remove the requirement to include smoking as a material lease violation as it relates to enforcement.
FISCAL/POLICY ALIGNMENT
This action is consistent with the City’s Proposed 2021-2022 Operating Budget and Adopted 2020-2021 Operating Budget City Service Areas Delivery Framework for Performance-Driven Government for Operational Services.
COST SUMMARY/IMPLICATIONS
While much of the work will be absorbed by current Muliple Housing Program staff, the Department of Planning, Building, and Code Enforcement will assess and develop budget and fee proposals as appropriate for additional resources needed to support policy implementation as part of the annual budget process for the fiscal year 2022-2023.
HONORABLE MAYOR AND CITY COUNCIL
March 7, 2022
Subject: Amendment to Chapter 9.44 of Title 9 of the San José Municipal Code in Alignment with City Council Policy Priority #18: Smoke-free Housing
CEQA
Not a Project, File No. PP17-009, Staff Reports, Assessments, Annual Reports, and Information Memos that involve no approvals of any City action.
/s/
CHRISTOPHER BURTON, Director
Planning, Building, and Code Enforcement
For questions, please contact Rachel Roberts, Deputy Director, at [email protected].