In October, 2012, the City of Santa Monica, a city with rent control, adopted a housing ordinance which requires all new vacancies in apartments and condominiums to be non-smoking. In addition, all new residential buildings are required to open as non-smoking.  (ExistingSanta Monica law already bans smoking in outdoor and indoor common areas and balconies and patios.)  The new law does not require enforcement by landlords, but does require a series of actions by landlords, condominium boards and property management companies which will take time and effort. 

First, anyone moving into an apartment or condo after November 22, 2012, needs to be informed that smoking is not permitted in the unit. By January 21, 2013, management is required to begin a survey of current occupants who must be asked whether they wish to designate their units as smoking-permitted or non-smoking.  The survey needs to be completed by February 20, 2013 and by March 22, 2013 occupants will need to be notified about the results of the survey. The units of occupants who fail to respond are to be listed as “un-designated” on the list or chart prepared by landlords, managers, or condo boards.

Occupants can make corrections or changes to their designations until April 21, 2013, but by May 21, 2013, the final list or chart must be distributed to all occupants and prospective occupants along with an information page about the law.  The information page is available at the city’s website, smconsumer.org.  In addition, the list or chart must be kept updated and given to all prospective renters and buyers along with a copy of the city’s information page.

More than 20Californiacities have adopted ordinances regulating tobacco use in units of apartments and condos. However, this is the first smoke-free housing ordinance adopted by a city with rent control inCaliforniaand perhaps even the nation.  The question is, why was it adopted and what are the benefits, if any, to landlords? Also, is it likely to be adopted by other rent controlled cities?

Benefits to Landlords:

Research has shown that tobacco smoke can move from unit to unit in an apartment or condo building. It can also enter a unit when there is smoking in outdoor common areas or on balconies and patios. In November, 2011, the Los Angeles County Department of Public Health held a news conference to provide information on the newest research and to congratulate those cities that had adopted policies to protect residents of multi-unit housing from drifting tobacco smoke.

The research, from Stanford University scientist Dr. Neil Klepeis, showed that in residential buildings where smoking is permitted,  “tobacco smoke particles In units of non-smokers can reach significant levels equal to and exceeding those of a smoky bar or casino. Both new and old buildings are affected.” 

It is common knowledge that tobacco smoke can cause major illnesses and even death. What is not common knowledge is that liability policies will not protect apartment owners or condo boards in the event that a resident develops a serious illness caused by tobacco smoke and decides to take legal action. Tobacco smoke is considered a pollutant and liability policies contain a pollution exclusion.

As apartment and condominium buildings move toward becoming totally non-smoking inSanta Monica, landlords will be protected from lawsuits having to do with secondhand smoke exposure. In addition, the charts or lists showing smoking-permitted and non-smoking units will help families whose members suffer from chronic illness to avoid moving into a unit adjacent to a smoking-permitted unit.

Other benefits include a 10% insurance discount from CIG (Capital Insurance Group) for buildings that are non-smoking, and for landlords there will be a saving in maintenance costs when units are kept free of tobacco smoke.

State and local surveys of residents of multi-unit housing show that most prefer to live in a smoke-free environment. Fewer than 12% ofCaliforniaadults are still smoking, and according to the American Lung Association, most of those would like to quit. So the newSanta Monicaordinance, at the very least, will limit and eventually eliminate the smell of tobacco from apartment and condominium buildings. Over time it will help to save lives.

Last thoughts: Tenants cannot be evicted for violating theSanta Monica ordinance. But the tenant can be evicted if the lease prohibits smoking. On the other hand, if existing tenants are complaining that a neighbor’s tobacco smoke is making them sick, landlords do have the option of releasing them from their lease and/or allowing them to move to another unit which is not being exposed to tobacco smoke with rent remaining the same. This could be considered a “reasonable accommodation” under fair housing laws. Condominium boards, faced with the same complaints could strengthen their rules or CC & R’s in order to provide protection.

Is an ordinance like the Santa Monica Smoke-Free Housing Ordinance an indication of future laws in otherCaliforniacities with rent control?  Based on the percentage of residents who want to be protected from tobacco smoke and the advantages to landlords, that seems a good possibility.

Esther Schiller is director of the Smokefree Apartment House Registry, www.smokefreeapartments.org  This material was made possible by funds received from the California Department of Public Health under contract 10-10206-10.        

 

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