CITY OF SIGNAL HILL
STAFF REPORT
2175 Cherry Avenue • Signal
Hill, California 90755-3799
5/24/2022
AGENDA ITEM
TO:
HONORABLE MAYOR
AND MEMBERS OF THE CITY COUNCIL
FROM: MATTHEW E. RICHARDSON
CITY ATTORNEY
SUBJECT:
CONSIDERATION OF REGULATING SMOKING IN MULTIFAMILY HOUSING Summary:
At a regular meeting held March 8, 2022, City Council directed the City Attorney to report on the issues associated with regulating smoking in multifamily housing. This report analyzes laws regulating smoking in different types of properties, including legal limitations pertinent to multifamily housing. This report also includes a brief survey of smoke-free multifamily ordinances adopted by selected Los Angeles County cities, and presents the City Council with options related to regulating smoking in multifamily housing.
Recommendations:
1. Receive and file the staff report.
2. Provide staff with direction regarding possible regulation of smoking in multifamily housing.
Fiscal Impact:
There is no fiscal impact associated with the recommended action.
Strategic Plan Objective:
N/A
Background and Analysis:
Municipal Police Power
Regulation of tobacco to protect local residents is a valid exercise of a city’s police power under Article XI, section 7 of the California Constitution (City of San Jose v. Dept. of Health Services, 66 Cal. App. 4th 35, 42 (1998)), which provides that a “city may make and enforce within its limits all CITY OF SIGNAL HILL Page 1 of 6 Printed on 5/19/2022
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Cal. App. 4th 35, 42 (1998)), which provides that a “city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.” To be a proper exercise of a city’s police power, a regulation must be:
· Reasonably related to a legitimate governmental purpose (Birkenfeld v City of Berkeley, 17 Cal. 3d 129, 140 (1976)); and
· Have a reasonable tendency to promote the public health, morals, safety, or general welfare of the community (Carlin v. City of Palm Springs, 14 Cal.App.3d 706, 711 (1971)).
An ordinance banning smoking in multifamily housing would almost certainly meet this test, as it is reasonably related to and tends to promote the City’s purpose of protecting non-smoking residents from the health risks associated with second-hand smoke. Numerous California cities have enacted laws that ban smoking in multifamily buildings pursuant to their police power.
To be a proper exercise of the police power, the proposed ordinance must not be inconsistent with, conflict with, or be duplicative of state law. That is, the proposed ordinance cannot be preempted by state law.
California Law and Federal Law
There is no state law that prevents the City from regulating smoking in multifamily housing. In fact, cities have express authority to regulate or completely ban smoking, including the use of electronic smoking devices, in any manner not inconsistent with state law (Health & Safety Code (“HSC”) §118910). The below discussion of relevant state laws regulating smoking shows the proposed ordinance would not be preempted.
City May Ban Smoking in Areas Other than a Place of Employment State law allows cities to regulate or ban smoking of tobacco products in any area that is not a place of employment (Labor Code § 6404.5(a) & (h). Though Labor Code § 6404.5 prohibits smoking in enclosed spaces at places of employment (and would therefore make any similar local ordinance unlawfully duplicative), cities may locally enforce Section 6404.5’s workplace smoking ban (Labor Code § 6404.5(i)). Signal Hill Municipal Code (“SHMC”) Chapter 8.52 incorporates Labor Code § 6404.5 and grants the City a mechanism for such local enforcement.
More relevant to the City’s ability to ban smoking in multifamily housing, Section 6404.5 expressly excludes private residences, except for those licensed as family day care homes where smoking is prohibited pursuant to HSC § 1596.795 (Labor Code § 6404.5(e)(6)). This means cities may regulate smoking in most private residences.
On the other hand, if an enclosed common area, such as a hallway, stairwell, or waiting area, that is a structural part of a multifamily dwelling is also a place of employment, the City may not ban smoking on those portions of the building because it is already prohibited under state law (See Cal.
Atty. Gen. Op. No. 12-901 (Dec. 20, 2013) (enclosed area is place of employment if the property has any individual, such as security guard or maintenance worker, who works on the property at any time even if not direct employee of operator)). However, the City may still enforce the state prohibition against smoking in these common areas through SHMC Chapter 8.52.
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Landlord Authority to Prohibit Smoking in Housing Does Not Preempt a Local Ordinance Under Civil Code § 1947.5, a landlord of a residential dwelling unit may prohibit smoking of tobacco products, including the use of electronic smoking devices, on the property or in any building or portion of the building “including any dwelling unit, other interior or exterior area, or the premises on which it is located” (Civ. Code § 1947.5(a)).
State law authorizing landlords to prohibit smoking in residences does not preempt local ordinances in effect on or after January 1, 2012 that restrict smoking in residential dwellings (Civ. Code § 1947.5 (d)). Therefore, the City may adopt an ordinance that bans smoking in multifamily housing so long as it does not interfere with landlord rights to prohibit smoking in accordance with Civil Code § 1947.5.
Federal Law and Public Housing
In general, smoking is prohibited on the premises of federally-assisted public housing operated or developed by public housing agencies (See 24 Code Fed. Reg. (“C.F.R.”) §§965.651-965.655, 966.4 (f)(12)). Public housing means any low-income housing assisted under the Housing Act of 1937 (42 U.S.C. § 1437 et seq.), as amended (“Act”), other than under Section 8 of the Act (24 C.F.R. § 965.651). Public housing does not include mixed-finance projects (24 C.F.R. § 965.651). A public housing agency is any municipality or government entity or public body, or agency or instrumentality of these entities that is authorized to engage in or assist in the development or operation of lowincome housing under the Act (24 C.F.R. § 5.100). Under federal rules, public housing agencies must include in their leases no-smoking policies prohibiting the smoking of tobacco products in all units, indoor common areas, and outdoor common areas within 25 feet of housing and administrative offices (See 24 C.F.R. § 966.4(f)(12)(i)(B)).
Therefore, if the City, or any of its agencies, is a public housing agency, the City and these entities not only may, but are required to prohibit smoking in multifamily public housing, but not if those projects receive Section 8 subsidies or were developed using a mix of public and private funds.
California Jurisdictions that Banned Smoking in Multi-Family Buildings According to an April 1, 2022 report prepared by the American Nonsmokers’ Rights Foundation, at least 96 California cities have enacted laws that prohibit smoking in all or some areas in multifamily dwellings (the accuracy of the report has not been fully verified and is provided for potential informational value). Included below is a summary table of three representative Los Angeles County cities’ regulations listed in the report.
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Standard Ordinance and Restriction Options
As noted above, the City appears to have broad authority to regulate smoking in multifamily housing.
Should the City elect to exercise this authority it may choose from several key components in crafting a multifamily smoking ordinance, including the following. (These components are derived from a 2012 annotated model ordinance funded by the California Department of Health prepared by the nonprofit organization ChangeLab Solutions. See <https://www.changelabsolutions.org/sites/default/files/Smokefree_Housing_Ordinance_FINAL_upda ted_rebranded_130102.pdf>. The 2012 model ordinance appears to be the template used by the cities discussed in this report. A revised 2018 version that includes cannabis smoke regulations is available at
<https://www.changelabsolutions.org/sites/default/files/SFMUH_REVISED_Ordinance_FINAL_20180 917.doc>)
1. No Smoking in Common Areas. The City may impose a total ban in common areas (e.g.
Manhattan Beach) or allow the landlord or HOA to designate smoking areas in common areas subject to distancing and other criteria (e.g. El Monte and Culver City).
2. Nonsmoking Buffer Zones. The City may specify distance requirements (most commonly 25 feet) for persons smoking in unenclosed areas to avoid smoke drifting into nonsmoking areas.
3. Smoking Restrictions in New Units. The City may ban smoking in all new units of multi-unit residences. Alternatively, the City may allow for some units in a multi-unit residence to be designated smoking (e.g. require up to 100% but not less than 90% of units in a multifamily residence to be nonsmoking).
4. Nonsmoking Designation of Existing Units. The City can prohibit smoking in common interest complexes and rental complexes. If the City is only concerned about multifamily rental housing, it can exclude common interest complexes from its ordinance. a. Common Interest Complex. The City may prohibit smoking in all existing units of a common interest complex or allow the HOA to hold an election to allow smoking in some existing units.
b. Rental Complex. The City may prohibit smoking in all existing units of a rental CITY OF SIGNAL HILL Page 5 of 6 Printed on 5/19/2022
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b. Rental Complex. The City may prohibit smoking in all existing units of a rental complex or permit the landlord to allow smoking in some existing units by following a procedure. To allow for a reasonable transition period and sufficient time for landlords to give minimum legal notice, it is recommended that smoking restrictions imposed on existing units be implemented over a minimum of 12 months.
5. Lease Terms for New and Existing Units in Rental Complexes. The City may require its smoking restrictions to be included in new leases or in existing leases at the first opportunity to amend (e.g. at time of renewal or before new term, if month-to-month). This gives landlords a means to enforce the restrictions. And if a clause is added that permits other tenants to enforce the smoking restrictions, then tenants in the same building can also enforce the restrictions as a breach of contract. Language should be included that disclaims any legal liability on landlords for failure to enforce no-smoking lease terms.
6. Exceptions from Smoking Restrictions. The City may wish to allow in-unit use of products approved by the FDA to treat nicotine or tobacco dependence.
7. Penalties and Enforcement. The City may have the City Attorney and/or code enforcement officials enforce the ordinance. Each violation may be punishable as an infraction or misdemeanor. Making a violation of the ordinance punishable as an infraction is a simple way to authorize law enforcement to issue tickets. The City may also file a civil action subjecting each violation to a civil fine or seek injunctive relief. Finally, the City may choose to declare that violating the ordinance is a nuisance (as opposed to the smoke itself) so that it can use its administrative nuisance abatement procedures.
8. Private Enforcement. The City may create a right for a private person, government organization, or other legal entity to sue violators of the ordinance. These suits can be brought on behalf of the general public, meaning exposure to smoke or other harm need not be shown; it is enough that the ordinance was violated.
Approved:
_________________________
Hannah Shin-Heydorn
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