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Presentation, NSE

San Jose City Council
March 22, 2022

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Presentation, NSE
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March 22, 2022
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Smoke-Free Housing Ordinance
City Council Policy Priority#18
Neighborhood Services and Education Committee
Item d.3
December 9, 2021
Presenter: Rachel Roberts, Deputy Director, PBCE

Background
Smoke-Free Housing Ranked as Council Policy Priority #18 in 2020 Received Santa Clara County Public Health Department (SCCPHD) Grant Funding to implement a smoke-free housing policy
Began policy work in August 2020
Council and Committees
• Reported to NSE December 10, 2020 and April 8, 2021 on completed work plan items and proposed ordinance
• September 28, 2021 Council Meeting- Item deferred
• October 26, 2021 Council Meeting- Item dropped and cross-referenced back to NSE to evaluate components of the proposed ordinance including the inclusion of cannabis, material breach lease violation, and enforcement. www.sanjoseca.gov/CodeEnforcement

Background
In Santa Clara County, 1 in 8 deaths each year due to smoking-related disease such as cancer, heart disease, and respiratory diseases
There is no safe level of exposure to secondhand smoke. Exposure to secondhand smoke is a leading cause of preventable death in the United States (CDC) Federal EPA has found secondhand smoke to be a risk to public health, and has classified secondhand smoke as a group A carcinogen
The California Air Resources Board has determined that secondhand smoke is a toxic air contaminant with serious health effects
Comprehensive smoke-free policies are the only way to fully protect nonsmokers (US Surgeon General)
www.sanjoseca.gov/CodeEnforcement

CPP #18 Smoke-free Housing Goals
www.sanjoseca.gov/CodeEnforcement
Explore policy
to prohibit
smoking in
Multifamily
housing
Reduce
exposure to
second-hand
smoke and
associated
health risks
Align with
County/local
initiatives for
smoke-free
housing
Provide support
to property
owners,
managers,
tenants, and
key
stakeholders
Smoke-free Housing Work Plan Recap
www.sanjoseca.gov/CodeEnforcement
Research and Benchmarking
• City of Sunnyvale
• City of Berkeley
• Other Local
Jurisdictions/County
• State Law
• First Community
Housing
Community Engagement
• Online Survey in
English, Spanish, and
Vietnamese
• 3 Stakeholder Zoom
Webinars
• Interest Group
Meetings
• Racial and Health
Equity Discussions
• Code Enforcement
Website/Information
Policy Development
• City Council Priority
Goals and NSE
direction
• Stakeholder and
Community Feedback
• Collaboration with
Santa Clara County
Public Health
Department (SCCPHD)
• Align with local
jurisdictions policies
• Coordinate with CAO

Stakeholder and Community Feedback
www.sanjoseca.gov/CodeEnforcement
Inclusion of Cannabis Feedback
Cannabis should be exempt
Vaping of cannabis should be allowed
Smoke lounges and designated cannabis
smoking areas should be explored
Policy may have disproportionate impact
to people of color, vulnerable populations
Other Policy Feedback
69% Surveyed supported the
proposed policy
Importance of gradual enforcement
and ongoing education
Smoking related fines and eviction
concerns
Condos and duplexes should be
included
Proposed Smoke-Free Housing Ordinance
Key Components
Prohibits smoking inside multifamily properties of 3 units or more (excluding condos)
Includes cigarettes, cigars, cigarillos, hookahs and pipes; electronic smoking devices (such as e-cigarettes and vape pens); and cannabis
Exemption for hotels/motels
Requires smoking prohibitions as part of the rental lease agreement
Provides variety of enforcement tools that allow flexibility www.sanjoseca.gov/CodeEnforcement

Inclusion of Cannabis: Proposed
Pros
• In alignment with State law
• In alignment with smoke-free housing policies
throughout California and Santa Clara County
including 8 cities within Santa Clara County
• Meets overall objective of CPP #18 to reduce
health risks/exposure to secondhand smoke
• Minimizes enforcement challenges
Cons
• May disproportionately impact some low income
and people of color
• Limits private use of cannabis
Prohibits Cannabis
Smoking in
Multifamily Housing
units
www.sanjoseca.gov/CodeEnforcement

Inclusion of Cannabis: State Laws
• Prop 215- Compassionate Use Act, 1996 (Health and Safety (H&S) Code 11352.5) • Exempted certain patients and primary caregivers from criminal liability under state law for possession and cultivation of cannabis for medical purposes
• Prop 64-Adult Use of Marijuana Act, 2016
• Established regulatory and licensing scheme for commercial recreational cannabis operations, and also legalized limited personal recreational cannabis use, possession, and cultivation. • Prohibited smoking and vaping of cannabis in all public places and wherever tobacco smoking is not allowed
• Does Prop 215 and 64 Prohibit Localities from Prohibiting Patients from Inhaling/smoking at home? No • The California Constitution recognizes the authority of cities and counties to make and enforce, within their borders, “all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.”
• Per case law, the authorization of medical cannabis use did not preempt or limit local land use regulation related to cannabis activities. [City of Riverside v. Inland Empire Patients Health & Wellness Ctr., Inc., 56 Cal.4th 729 (2013) (unanimously upholding localban on medical cannabis dispensaries); County of Los Angeles v. Hill, 192 Cal.App.4th 861 (2011); City of Claremont v. Kruse, 177Cal.App.4th 1153 (2009).] www.sanjoseca.gov/CodeEnforcement

Inclusion of Cannabis: Policy Alternatives
#1 and 2
• Would allow occupants to continue to smoke
and/or vape cannabis in multifamily units
• 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.

Policy Alternative #1:

Exempt Cannabis
Smoking
www.sanjoseca.gov/CodeEnforcement
Policy Alternative #2:

Exempt Vaping of
Cannabis only
Enforcement: Proposed
• Foster compliance through education and outreach
• Self- and Complaint- Driven Enforcement
• Phased enforcement process- Property owner/manager and City partnership
• Lease Requirements Prohibiting Smoking
• Administrative Citation* for non-compliance
• Enforcement would begin 9-months after ordinance adoption *Proposed ordinance language amended from an infraction to an administrative citation as a result of stakeholder feedback and staff review
www.sanjoseca.gov/CodeEnforcement

Enforcement: Proposed Administrative
Remedy Process
www.sanjoseca.gov/CodeEnforcement
Resident complaint
received by Property
Owner/Manager
Property Owner/Manager
notifies tenant of report
and works with tenant to
reach compliance
After 3 confirmed reports
in 12 months, complaint is
referred by Property
Owner/Manager to Code
Enforcement
Code Enforcement Warning
Notice issued to tenant
If two confirmed
complaints by at least two
separate residents in 12
months- a Citation may be
issued ($250, $500, $1000)
Compliance Order
issued after 3 citations
Fines and Penalties
recommended for non-
compliance with
Compliance Order (Apeals
Hearing Board)
Enforcement: Policy Alternative #1
Policy Alternative #1:

Remove requirement to
include smoking as a
material lease violation
• Limits property owner/manager’s ability to
bring about compliance with smoking
regulations
• Creates challenges in enforcement:
• Places more onerous on City to enforce
despite limited resources
• Highly transient/difficult to gather evidence
• Property owners may have difficulty
evicting serious violators due to lease
• Would require additional outreach to
property owners/managers
www.sanjoseca.gov/CodeEnforcement

Enforcement: Policy Alternative #2
Policy Alternative #2:

Adopt reduced fine
amounts for smoking in
Multifamily units (currently
$250, $500, $1000)
• Reduces financial burden of violation
• May not be sufficient to deter
behavior/bring about compliance
• Would require Council Resolution
www.sanjoseca.gov/CodeEnforcement

Proposed Implementation Plan: Ongoing
Continued outreach and education to foster
compliance
Smoke-free Housing Brochure in English, Spanish, and
Vietnamese
Code Enforcement Webpage Information and Various
Collateral
Proactive outreach during MH Routine Inspections
Increased awareness of SCCPHD Cessation and
Voluntary Mediation Services
www.sanjoseca.gov/CodeEnforcement

Staff Recommendation
1) Accept amended proposed ordinance language replacing an infraction with and administrative citation;
2) Provide feedback on the inclusion of cannabis and smoking as a material lease violation and related policy alternatives; and
3) Direct staff to return to Council with a final proposed ordinance amendment of Chapter 9.44, Regulation of Smoking of Title 9 Health and Safety of the SJMC to prohibit smoking inside multifamily housing of three units or more, reducing the exposure to secondhand smoke, in alignment with and in completion of City Council Policy Priority #18, Smoke-free Housing.
www.sanjoseca.gov/CodeEnforcement

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