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2023-08-22; City Council; ; Housing Element Program: Options to Develop a Smoke-Free Multifamily Housing Ordinance
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 mike.strong@carlsbad.gov, 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-Free Ordinance for Multifamily Housing To reduce secondhand and thirdhand smoke death and disability, consider the adoption of 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. (Due: December 2023) Smoking 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. Over 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, the 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 Senate 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 that 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 laws 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 file in the Office of the City Clerk) 3. Ordinance No. CS-188 (on file 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: Scott Chadwick City Manager FROM: Wilma J. Wooten, M.D., M.P.H., Public Health Officer & Director, Public Health Services RE: Smoke-Free Housing 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 secondhand 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, entitled 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 Parke.Troutman@sdcounty.ca.gov. 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 Page 2 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 I HHRIA 1 1} ,:~ 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 children 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 metabolism.” (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. One 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 elsewhere 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 contribute 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 Parke.Troutman@sdcounty.ca.gov. 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 pneumonia1 • Ear infections1 • Asthma attacks1 Adults exposed to SHS are more likely to develop: • Lung cancer1 • Heart disease & stroke1 • Breathing problems1 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? 1 in 32in5 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 ~ • c~crH 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 | info@no-smoke.org 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 Page 2 of 5 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 Page 3 of 5 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 Page 4 of 5 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 Page 5 of 5 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 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] 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 throughwalls. 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 COUNCILDate: 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 todraft 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 multifamilyhousing 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 notalready 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, andpremature 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 inprivate 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-unithousing 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 bedifficult. I have attached references about ordinances as well as information that can be used to educatethe public - including this brief informative video. https://www.youtube.com/watch?v=j21hKUAex7A Thank you for your considerationVanessa Vanessa Forsythe RN MSN2177 Vista La Nisa Carlsbad CA 92009She/Her California Nurses for Environmental Health & JusticeLeadership Council CleanEarth4KidsBoard 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 PETS-TA@no-smoke.org. © 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 Gu i d e t o A s t h m a P o l i c y f o r Ho u s i n g an d S c h o o l s www.phlpnet.org • talc@phlpnet.org • (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. T AMERICAN LUNG ASSOCIATION@ I I ~ public health law & policy P 'l I~ I technical assistance legal center www.lung.org 1-800-LUNG-USA Gu i d e t o A s t h m a P o l i c y f o r Ho u s i n g an d S c h o o l s 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. T AMERICAN LUNG ASSOCIATION@ www.lung.org 1-800-LUNG-USA Gu i d e t o A s t h m a P o l i c y f o r Ho u s i n g an d S c h o o l s 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. T AMERICAN LUNG ASSOCIATION@ www.lung.org 1-800-LUNG-USA Gu i d e t o A s t h m a P o l i c y f o r Ho u s i n g an d S c h o o l s 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. T AMERICAN LUNG ASSOCIATION@ www.lung.org 1-800-LUNG-USA Gu i d e t o A s t h m a P o l i c y f o r Ho u s i n g an d S c h o o l s 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. T AMERICAN LUNG ASSOCIATION@ www.lung.org 1-800-LUNG-USA Gu i d e t o A s t h m a P o l i c y f o r Ho u s i n g an d S c h o o l s 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. T AMERICAN LUNG ASSOCIATION@ www.lung.org 1-800-LUNG-USA Gu i d e t o A s t h m a P o l i c y f o r Ho u s i n g an d S c h o o l s 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). T AMERICAN LUNG ASSOCIATION@ www.lung.org 1-800-LUNG-USA Gu i d e t o A s t h m a P o l i c y f o r Ho u s i n g an d S c h o o l s 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). T AMERICAN LUNG ASSOCIATION@ www.lung.org 1-800-LUNG-USA Gu i d e t o A s t h m a P o l i c y f o r Ho u s i n g an d S c h o o l s 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@ www.lung.org 1-800-LUNG-USA Gu i d e t o A s t h m a P o l i c y f o r Ho u s i n g an d S c h o o l s 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: T AMERICAN LUNG ASSOCIATION@ www.lung.org 1-800-LUNG-USA Gu i d e t o A s t h m a P o l i c y f o r Ho u s i n g an d S c h o o l s 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@ www.lung.org 1-800-LUNG-USA Gu i d e t o A s t h m a P o l i c y f o r Ho u s i n g an d S c h o o l s Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 12 Technical Assistance Legal Center—revised December 2009 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@ www.lung.org 1-800-LUNG-USA Gu i d e t o A s t h m a P o l i c y f o r Ho u s i n g an d S c h o o l s 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- T AMERICAN LUNG ASSOCIATION@ www.lung.org 1-800-LUNG-USA Gu i d e t o A s t h m a P o l i c y f o r Ho u s i n g an d S c h o o l s Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 14 Technical Assistance Legal Center—revised December 2009 Unit Residence for which it is designated. (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@ www.lung.org 1-800-LUNG-USA Gu i d e t o A s t h m a P o l i c y f o r Ho u s i n g an d S c h o o l s 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. T AMERICAN LUNG ASSOCIATION@ www.lung.org 1-800-LUNG-USA Gu i d e t o A s t h m a P o l i c y f o r Ho u s i n g an d S c h o o l s Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 16 Technical Assistance Legal Center—revised December 2009 (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@ www.lung.org 1-800-LUNG-USA Gu i d e t o A s t h m a P o l i c y f o r Ho u s i n g an d S c h o o l s 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@ www.lung.org 1-800-LUNG-USA Gu i d e t o A s t h m a P o l i c y f o r Ho u s i n g an d S c h o o l s 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 www.lung.org 1-800-LUNG-USA Gu i d e t o A s t h m a P o l i c y f o r Ho u s i n g an d S c h o o l s Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 19 Technical Assistance Legal Center—revised December 2009 nonsmoking Units. These could include conducting a tenant survey to determine who would like to live in a nonsmoking Unit, holding a house meeting to discuss the new policy, and/or hosting cessation classes for tenants. 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. T AMERICAN LUNG ASSOCIATION@ www.lung.org 1-800-LUNG-USA Gu i d e t o A s t h m a P o l i c y f o r Ho u s i n g an d S c h o o l s Model California Ordinance Regulating Smoking in Multi-Unit Residences—page 20 Technical Assistance Legal Center—revised December 2009 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@ www.lung.org 1-800-LUNG-USA Gu i d e t o A s t h m a P o l i c y f o r Ho u s i n g an d S c h o o l s 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@ www.lung.org 1-800-LUNG-USA Gu i d e t o A s t h m a P o l i c y f o r Ho u s i n g an d S c h o o l s 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 Gu i d e t o A s t h m a P o l i c y f o r Ho u s i n g an d S c h o o l s 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 Gu i d e t o A s t h m a P o l i c y f o r Ho u s i n g an d S c h o o l s 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 Gu i d e t o A s t h m a P o l i c y f o r Ho u s i n g an d S c h o o l s 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 Gu i d e t o A s t h m a P o l i c y f o r Ho u s i n g an d S c h o o l s 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 Gu i d e t o A s t h m a P o l i c y f o r Ho u s i n g an d S c h o o l s 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 Gu i d e t o A s t h m a P o l i c y f o r Ho u s i n g an d S c h o o l s 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 Gu i d e t o A s t h m a P o l i c y f o r Ho u s i n g an d S c h o o l s 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 Gu i d e t o A s t h m a P o l i c y f o r Ho u s i n g an d S c h o o l s 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 Tobacco 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. Customizing 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 / TAmerican 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 to 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. Tips 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 Tobacco 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 _______ ] PROHIBITING 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 follows: 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 [ City/County 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 govern unless the context clearly requires otherwise: (A) “Common 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) “Common interest development” means: (1) A community apartment project as defined in California Civil Code section 4105, or any successor legislation; (2) A condominium project as defined in California Civil Code section 4125, or any successor legislation; (3) A planned development as defined in California Civil Code section 4175, or any successor legislation; and (4) A stock cooperative as defined in California Civil Code section 4190, or any successor legislation. (C) “Electronic 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 owners’ 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) “Landlord” 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 hotel or motel that meets the requirements of 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, 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 lfJt.. PUBLIC HEALTH ~LAWCENTER at Mitchell Hamline School of Law / f American Lung Association. California .,.,,,..,. _____________________________________ _ Smoke-free Multiunit Housing Model Ordinance 6 www.publichealthlawcenter.org/caltobacco (G) “Nonsmoking Area” means any area in which smoking is prohibited by (1) this [ article/chapter ] or other law; (2) binding agreement relating to the ownership, occupancy, or use of real property; or (3) a person with legal control over the area. (H) “Person” 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, exhaling, or burning, any tobacco, nicotine, cannabis, or plant product, whether natural or synthetic; (2) carrying any 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 personal 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 ~LAWCENTER 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) Effective 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 person 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) Notwithstanding subsection (a), smoking is permitted in designated smoking areas if they meet the following conditions: (1) Must not be an enclosed area; (2) Must be at least twenty-five (25) feet from any: (a) outdoor recreation area such as a tennis court, swimming pool, and picnic area; or (b) outdoor area primarily used by children such as a playground; (3) Must have a clearly marked perimeter; and (4) Must be identified by conspicuous signs. (C) No person 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 area” 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 person 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 MULTIUNIT 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) After [ 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 providing 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 exclusive-use areas such as balconies, porches, or patios; and (b) in any 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. “Tenant 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 ~LAWCENTER 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 any guests under control of the tenant will not smoke anywhere: (A) In the unit rented by tenant, including any associated balconies, decks, or patios; (B) In the common 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 outdoor grounds of the property, [ other than a designated smoking area, ] including, but not limited to, entryways, playgrounds, pool areas, walking paths, or sitting areas. “Tenant 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. “Tenant will inform tenant’s guests of the smoke-free policy. Tenant 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 providing 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 expressly 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 “Tenant 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 landlord 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 tenant 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) 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. 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 before [ 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 are 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 common 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 prohibited 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) Landlords 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. The following requirements apply to common interest developments: (A) On or before [ 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 prohibited 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 prohibited 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) HOAs 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 ~LAWCENTER 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) The 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) Any 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) Nonconsensual exposure to smoke from smoking occurring on or drifting into [ residential ] property is a nuisance. July 2020 lfJt.. PUBLIC HEALTH ~LAWCENTER 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)]. PENALTIES 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) The remedies provided by this [ article/chapter ] are cumulative and in addition to any other remedies available at law or in equity. (B) Any 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) Enforcement 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) Landlords 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 ~LAWCENTER at Mitchell Hamline School of Law / f American Lung Association. California .,.,,,..,. _____________________________________ _ Smoke-free Multiunit Housing Model Ordinance 17 www.publichealthlawcenter.org/caltobacco (E) No person 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 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 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. 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. 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) Any 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 [ ________ ] 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. 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 {Tobacco 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; and2 WHEREAS, tobacco use is the number one cause of preventable death in California2 and continues to be an urgent public health issue, as evidenced by the following: July 2020 lfJt.. PUBLIC HEALTH ~LAWCENTER 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 lfJt.. PUBLIC HEALTH ~LAWCENTER 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 July 2020 lfJt.. PUBLIC HEALTH ~LAWCENTER at Mitchell Hamline School of Law / f American Lung Association. California .,.,,,..,. _____________________________________ _ Smoke-free Multiunit Housing Model Ordinance 21 www.publichealthlawcenter.org/caltobacco {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 Tobacco 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 {Twelve studies have found between 26% and 64% of residents of multiunit housing report secondhand smoke drifting into their home;36 July 2020 lfJt.. PUBLIC HEALTH ~LAWCENTER at Mitchell Hamline School of Law / f American Lung Association. California .,.,,,..,. _____________________________________ _ Smoke-free Multiunit Housing Model Ordinance 22 www.publichealthlawcenter.org/caltobacco {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 lfJt.. PUBLIC HEALTH ~LAWCENTER at Mitchell Hamline School of Law / f American Lung Association. California .,.,,,..,. _____________________________________ _ Smoke-free Multiunit Housing Model Ordinance 23 www.publichealthlawcenter.org/caltobacco {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 lfJt.. PUBLIC HEALTH ~LAWCENTER at Mitchell Hamline School of Law / f American Lung Association. California .,.,,,..,. _____________________________________ _ Smoke-free Multiunit Housing Model Ordinance 24 www.publichealthlawcenter.org/caltobacco {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 July 2020 lfJt.. PUBLIC HEALTH ~LAWCENTER at Mitchell Hamline School of Law / f American Lung Association. California .,.,,,..,. _____________________________________ _ Smoke-free Multiunit Housing Model Ordinance 25 www.publichealthlawcenter.org/caltobacco 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 ordinance, 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 World Health Organization. WHO Report on the Global Tobacco Epidemic, 2019: Offer Help to Quit Tobacco Use. 2019. Available at: https://apps.who.int/iris/handle/10665/326043. 2 U.S. Department 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 for Tobacco-Free Kids. The Toll of Tobacco in California. Available at: www.tobaccofreekids.org/problem/toll- us/california. Accessed June 2, 2020. 4 Lortet-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 Cancer Institute. A Socioecological Approach to Addressing Tobacco-Related Health Disparities. National Cancer Institute Tobacco 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 California Tobacco Control Program, California Department of Public Health. California Tobacco Facts and Figures 2019. Available at: https://www.cdph.ca.gov/Programs/CCDPHP/DCDIC/CTCB/CDPH%20Document%20Library/Re- searchandEvaluation/FactsandFigures/CATobaccoFactsandFigures2019.pdf. Accessed June 2, 2020. July 2020 lfJt.. PUBLIC HEALTH ~LAWCENTER at Mitchell Hamline School of Law / f American Lung Association. California .,.,,,..,. _____________________________________ _ Smoke-free Multiunit Housing Model Ordinance 26 www.publichealthlawcenter.org/caltobacco 7 U.S. Department 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 Resources Board, California Environmental Protection Agency. Frequently Asked Questions — Environmental Tobac- 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 California Identifies Secondhand Smoke as a “Toxic Air Contaminant” [press release]. January 26, 2006. Available at: www.arb.ca.gov/newsrel/nr012606.htm. Accessed June 2, 2020. 10 Office of Environmental Health Hazard Assessment, California Environmental Protection Agency. The Proposition 65 list. https://oehha.ca.gov/proposition-65/proposition-65-list. Accessed June 19, 2020. 11 American Society of Heating Refrigerating and Air Conditioning Engineers (ASHRAE). 2015 Addenda Supplement to ANSI/ASHRAE Standard 62.1-2013, Ventilation for Acceptable Indoor Air Quality. Atlanta, GA: ASHRAE. 2015. Available at: https://www.ashrae.org/file%20library/technical%20resources/standards%20and%20guidelines/standards%20 addenda/62_1_2013_2015supplement_20150203.pdf. 12 American Heart 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 Association. Public Policy Position — Healthy Air. Chicago, IL: American Lung Association. 2019. Available at: https://www.lung.org/policy-advocacy/public-policy-agenda/public-policy-position-healthy-air. Accessed June 2, 2020. 14 DiGiacomo SI, Jazayeri MA, Barua RS, Ambrose JA. Environmental Tobacco Smoke and Cardiovascular Disease. Int J Environ Res Public Health. 2018;16(1):96. doi: 10.3390/ijerph16010096. 15 Centers for Disease Control and Prevention (CDC). CDC Vital Signs — Secondhand Smoke: An Unequal Danger. February 2015. Available at: www.cdc.gov/vitalsigns/pdf/2015-02-vitalsigns.pdf. Accessed June 3, 2020. 16 California Tobacco Control Program, California Department of Public Health. State Health Officer’s Report on E-Cigarettes: 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 Academies of Sciences, Engineering, and Medicine. Public Health Consequences of E-Cigarettes. 2018. Washing- ton, DC: The National Academies Press. Available at: https://www.nap.edu/catalog/24952/public-health-consequenc- es-of-e-cigarettes. 18 Fowles J, Barreau T, Wu N. Cancer and Non-Cancer Risk Concerns from Metals in Electronic Cigarette Liquids and Aerosols. Int J Environ Res Public Health. 2020;17(6):2146. doi: 10.3390/ijerph17062146. 19 U.S. Department of Health and Human Services. E-Cigarette Use Among Youth and Young Adults: 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. 2016. Available at: https://www-ncbi-nlm-nih-gov.ezp1.lib.umn.edu/books/NBK538680/pdf/Bookshelf_NBK538680.pdf. 20 Romberg AR, Miller Lo EJ, Cuccia AF, et al. Patterns of nicotine concentrations in electronic cigarettes sold in the United States, 2013-2018. Drug Alcohol Depend. 2019:201:1-7. doi: 10.1016/j.drugalcdep.2019.05.029. 21 Cao DJ, Aldy K, Hsu S, et al. Review of Health Consequences of Electronic Cigarettes and the Outbreak of Electronic Cigarette, or Vaping, Product Use-Associated Lung Injury. J Med Toxicol. 2020 Apr 16. Doi: 10.1007/s13181-020-00772-w. July 2020 lfJt.. PUBLIC HEALTH ~LAWCENTER at Mitchell Hamline School of Law / f American Lung Association. California .,.,,,..,. _____________________________________ _ Smoke-free Multiunit Housing Model Ordinance 27 www.publichealthlawcenter.org/caltobacco 22 Staudt MR, Salit J, Kaner RJ, Hollmann C, Crystal RG. Altered lung biology of healthy never smokers following acute inhalation of E-cigarettes. Respiratory Research. 2018;19:78. doi:10.1186/s12931-018-0778-z. 23 Tzortzi A, Teloniatis SI, Matiampa G. et al. Passive exposure to e-cigarette emissions: Immediate respiratory effects. Tob. Prev. Cessation. 2018;4(May):18. doi.org/10.18332/tpc/89977. 24 Shields PG, Berman M, Brasky TM, et al. A Review of Pulmonary Toxicity of Electronic Cigarettes In The Context of Smoking: A Focus On Inflammation. Cancer Epidemiol Biomarkers Prev. 2017;26(8):1175-1191. doi:10.1158/1055-9965. EPI-17-0358. 25 Visser WF, Klerx WN, Cremers HWJM, et al. The Health Risks of Electronic Cigarette Use to Bystanders. Int J Environ Res Public Health. 2019;16(9):1525. doi: 10.3390/ijerph16091525. 26 Bayly JE, Bernat D, Porter L, Choi K. Secondhand Exposure to Aerosols From Electronic Nicotine Delivery Systems and Asthma Exacerbations Among Youth With Asthma. Chest. 2019;155(1)88-93. doi: 10.1016/j.chest.2018.10.005. 27 Tzortzi A, Teloniatis S, Matiampa G, et al. Passive Exposure of Non-Smokers to E-Cigarette Aerosols: Sensory Irrita- tion, Timing and Association With Volatile Organic Compounds. Environ Res. 2020;182:108963. doi: 10.1016/j.en- vres.2019.108963.28 Cullen KA, Ambrose BK, Genztke AS, et al. Notes from the field: use of electronic cigarettes and any tobacco product among middle and high school students—United States, 2011-2018. MMWR Morb Mortal Wkly Rep. 2018;67(45):1276-1277. doi: 10.15585/mmwr.mm6745a5. 29 Lin C, Baiocchi M, Halpern-Felsher B. Longitudinal trends in e-cigarette devices used by Californian youth, 2014–2018. Addict Behav. 2020;108:106459. doi: 10.1016/j.addbeh.2020.106459. 30 American Society of Heating Refrigerating and Air Conditioning Engineers (ASHRAE). ASHRAE Position Document on Environmental Tobacco Smoke. Atlanta, GA: ASHRAE. 2019. Available at: https://www.ashrae.org/file%20library/about/ position%20documents/ashrae_pd_environmental_tobacco_smoke_2019.pdf. 31 State of California Tobacco Education and Research Oversight Committee (TEROC). Position on Electronic Smoking Devices (AKA E-cigarettes). 2015. Available at: www.cdph.ca.gov/Programs/CCDPHP/DCDIC/CTCB/CDPH%20Docu- ment%20Library/TEROC/InfoGraphicReportsLetters/TEROCECigarettePositionStatement122215.pdf. 32 California Environmental Protection Agency. Evidence on the Carcinogenicity of Cannabis Smoke. Sacramento, CA: Cali- fornia Environmental Protection Agency, Office of Environmental Health Hazard Assessment, Reproductive and Cancer Hazard Branch. 2009. Available at: https://oehha.ca.gov/media/downloads/proposition-65/chemicals/finalmjsmoke- hid.pdf. 33 Herrmann, ES, Cone, EJ, Mitchell, JM, et al. Non-Smoker Exposure to Secondhand Cannabis Smoke II: Effect of Room Ventilation on the Physiological, Subjective, and Behavioral/Cognitive Effects. Drug Alcohol Depend. 2015;151:194–202. doi: 10.1016/j.drugalcdep.2015.03.019. 34 Holitzki H, Dowsett LE, Spackman E, Noseworthy T, Clement F. Health effects of exposure to second- and third-hand marijuana smoke: a systematic review. CMAJ Open. 2017;5(4):E814-E822. doi:10.9778/cmajo.20170112. 35 King BA, Travers MJ, Cummings KM, Mahoney MC, Hyland AJ. Secondhand smoke transfer in multiunit housing. Nico- tine Tob Res. 2010;12:1133-1141. doi:10.1093/ntr/ntq162. 36 Snyder K, Vick JH, King BA. Smoke-free multiunit housing: a review of the scientific literature. Tob Control. 2016;25:9-20. doi:10.1136/tobaccocontrol-2014-051849. 37 Wilson KM, Klein JD, Blumkin AK, Gottlieb M, Winickoff JP. Tobacco smoke exposure in children who live in multiunit housing. Pediatrics. 2011;127(1):85-92. doi: 10.1542/peds.2010-2046. July 2020 lfJt.. PUBLIC HEALTH ~LAWCENTER at Mitchell Hamline School of Law / f American Lung Association. California .,.,,,..,. _____________________________________ _ Smoke-free Multiunit Housing Model Ordinance 28 www.publichealthlawcenter.org/caltobacco 38 Toy P, Yount C, Meng YY, et al. Health at Risk: Policies Are Needed to End Cigarette, Marijuana, and E-Cigarette Secondhand Smoke in Multi-Unit Housing in Los Angeles. Los Angeles, Calif.: UCLA Center for Health Policy Research. 2020. Available at: http://healthpolicy.ucla.edu/publications/Documents/PDF/2020/Health-at-Risk-policybrief-may2020.pdf. 39 King BA, Babb SD, Tynan MA, Gerzoff RB. National and state estimates of secondhand smoke infiltration among U.S. multiunit housing residents. Nicotine Tob Res. 2013; 15(7):1316–1321. doi:10.1093/ntr/nts254. 40 Kuschner WG, Reddy S, Mehrotra N, Paintal HS. Electronic cigarettes and thirdhand tobacco smoke: two emerging health care challenges for the primary care provider. Int J Gen Med. 2011;4:115–20. doi:10.2147/IJGM.S16908. 41 Whitlatch A, Schick S. Thirdhand Smoke at Philip Morris. Nicotine Tob Res. 2019;21(12):1680-1688. doi: 10.1093/ntr/ nty153. 42 Matt GE, Quintana PJE, Zakarian JM, et al. When smokers move out and non-smokers move in: residential thirdhand smoke pollution and exposure. Tob Control. 2011;20(1):e1. doi:10.1136/tc.2010.037382. 43 Matt GE, Quintana PJE, Hoh E, et al. Persistent Tobacco Smoke Residue in Multiunit Housing: Legacy of Permissive Indoor Smoking Policies and Challenges in the Implementation of Smoking Bans. Prev Med Rep. 2020;18:101088. doi: 10.1016/j.pmedr.2020.101088. 44 Sleiman M, Gundel LA, Pankow JF, Jacob P, Singer BC, Destaillats H. Formation of carcinogens indoors by surface-me- diated reactions of nicotine with nitrous acid, leading to potential thirdhand smoke hazards. Proc Natl Acad Sci U S A. 2010;107(15):6576–81. doi:10.1073/pnas.0912820107. 45 Hang B, Sarker AH, Havel C, et al. Thirdhand smoke causes DNA damage in human cells. Mutagenesis. 2013;28(4):381– 91. doi:10.1093/mutage/get013. 46 Hang B, Wang P, Zhao Y, et al. Thirdhand Smoke: Genotoxicity and Carcinogenic Potential. Chronic Dis Transl Med. 2019;6(1):27-34. doi: 10.1016/j.cdtm.2019.08.002. 47 U.S. Fire Administration. Fire in the United States 2008–2017. Emmitsburg, MD: Department of Homeland Security, Fed- eral Emergency Management Agency, U.S. Fire Administration. 2019. Available at: https://www.usfa.fema.gov/down- loads/pdf/publications/fius20th.pdf. 48 National Fire Protection Association. Home Fires Started by Smoking. Quincy, MA: National Fire Protection Association. 2019. Available at: https://www.nfpa.org/-/media/Files/News-and-Research/Fire-statistics-and-reports/US-Fire- Problem/Fire-causes/ossmoking.ashx. 49 Chambers C, Sung H, Max W. Home Exposure to Secondhand Smoke among People Living in Multiunit Housing and Single Family Housing: A Study of California Adults, 2003–2012. J Urban Heal. 2015;92(2):279-90. doi:10.1007/s11524- 014-9919-y. 50 Hollar TL, Cook N, Quinn D, Phillips T, DeLucca M. Smoke-free multiunit housing policies show promise in reduc- ing secondhand smoke exposure among racially and ethnically diverse, low-income seniors. J Immigr Minor Health. 2017;19(6):1281–1289. doi.org/10.1007/s10903-016-0430-2. 51 Gentzke AS, Hyland A, Kiviniemi M, Travers MJ. Attitudes and Experiences with Secondhand Smoke and Smoke-Free Policies Among Subsidised and Market-Rate Multiunit Housing Residents Living in Six Diverse Communities in the USA. Tob Control. 2018;27(2):194-202. doi: 10.1136/tobaccocontrol-2016-053374. 52 Young W, Karp S, Bialick P, et al. Health, Secondhand Smoke Exposure, and Smoking Behavior Impacts of No-Smoking Policies in Public Housing, Colorado, 2014-2015. Prev Chronic Dis. 2016;13:E148. doi: 10.5888/pcd13.160008. 53 Nguyen KH, Gomez Y, Homa DM, King BA. Tobacco Use, Secondhand Smoke, and Smoke-Free Home Rules in Multiunit Housing. Am J Prev Med. 2016;51(5):682-692. doi: 10.1016/j.amepre.2016.05.009. July 2020 lfJt.. PUBLIC HEALTH ~LAWCENTER at Mitchell Hamline School of Law / f American Lung Association. California .,.,,,..,. _____________________________________ _ Smoke-free Multiunit Housing Model Ordinance 29 www.publichealthlawcenter.org/caltobacco 54 Holmes LM, Llamas JD, Smith D, Ling PM. Drifting Tobacco Smoke Exposure Among Young Adults in Multiunit Housing. J Community Health. 2020;45(2):319-328. doi: 10.1007/s10900-019-00743-5. 55 Delgado-Rendon A, Cruz TB, Soto D, Baezconde-Garbanati L, Unger JB. Second and Thirdhand Smoke Exposure, Atti- tudes and Protective Practices: Results from a Survey of Hispanic Residents in Multiunit Housing. J Immigrant Minority Health. 2017;19(5):1148–1155. doi.org/10.1007/s10903-016-0540-x. 56 Wilson KM, Torok MR, McMillen RC, et al. Tobacco-Smoke Incursions and Satisfaction Among Residents With Children in Multiunit Housing, United States, 2013. Public Health Rep. 2017;132(6):637-645. doi: 10.1177/0033354917732767. 57 Wang TW, Lemos PR, McNabb S, King BA. Attitudes toward Smoke-Free Public Housing among US Adults, 2016. Am J Prev Med. 2018 Jan;54(1):113–118. doi: 10.1016/j.amepre.2017.08.026. 58 American Lung Association of California. California Voter and Rural Voter Attitudes About Secondhand Smoke in Multi-Unit Housing: Public Opinion Survey. 2018. 59 McFarlane A, Djoko Y, Woodward A. Instituting Smoke-Free Public Housing: An Economic Analysis. Cityscape. 2017;19(3):435-448. Available at: https://www.huduser.gov/portal/periodicals/cityscpe/vol19num3/ch24.pdf. 60 King BA, Peck 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, Park 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 Smoke-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 Vijayaraghavan 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 Hafez AY, 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. Civ. Code § 1947.5. 66 Public Health Law Center. There Is No Constitutional Right to Smoke or Toke. Saint Paul, MN: Public Health Law Center. 2019. Available at: https://publichealthlawcenter.org/sites/default/files/resources/No-Constitution- al-Right-Smoke-Toke-2019.pdf. 67 Cal. Civ. Code § 3479. 68 In Re 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 CAUTION: Do not open attachments or click on links unless you recognize the sender and know the content is safe. Tammy Cloud-McMinn From: Sent: To: Subject: Diana A <dra805@gmail.com> Monday, August 21, 2023 11 :22 AM City Clerk Agenda Item #9 MUH Non-Smoking Ordinance Dear Mayor & City 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 District 3 Resident CAUTION: Do not open attachments or click on links unless you recognize the sender and know the content i safe. 1 Tammy Cloud-McMinn From: Sent: To: Cc: Subject: Attachments: 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 Rental Housing Associ ation 5675 Ruffin Road, Suite 310 I San Diego, CA 92123 Office: 858.278.8070 I Direct: 858.751.2200 mkirkland@socalrha.org I www.socalrha.org en attachments or click on links unless you recognize 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 #: 02083544 760-715-7103 Direct 2653 Roosevelt St., Suite 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. Connect with us on your favorite Social Media channel! ml19 CAUTION: Do not open attachments or click on links unless you recognize the sender and know the content i 2 Tammy Cloud -McMinn From: Sent: To: Cc: Subject: Attachments: Lynda Barbour < lynda.barbour@cancer.org > 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 11 1) 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 Network's mission is to advocate for evidence- based public policies to reduce the cancer burden for everyone and we are committed to advancing t hat 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 condominiums 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 cance r pat ients 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 complet ely prohibit smoking in their homes but cannot control this when they live in attached housing without 100% smoke-free 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 lynda.barbour@cancer.org 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. 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 lynda.barbour@cancer.org Tammy Cloud-McMinn From: Sent: To: Subject: August 22, 2023 maryoren < maryoren@aol.com > 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 fo r 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 matters, 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. Th ere 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 vulnerable 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 ai r 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 <dra805@gmail.com> 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 <dra805@gmail.com> 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, interior 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 thir_~~and sm<:>_~~-_ Than k you, Diana Aguirre, MBA, PMP®, LSS BB Distric t 3 Re side 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 <j@cleanearth4kids.org > 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 J@CleanEarth4Kids.org CAUTION: Do not open attachments or click on links unless ou recognize the sender and know the content i safe. 1 CleanEarth4Kids.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.20 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. 21 Secondhand srrioke also exposes 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 Control24 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/02Qyear%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-effects.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 absences43 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/thirdhand-smoke/ 31 https://www.cdph.ca.gov/Programs/CCDPHP/DCDIC/CTCB/CDPH%20Document 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/releases /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 https: / /jamanetwork.com/journals/iamanetworkopen/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 infancy54 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 problems64 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 Flav ored Tobacco Addic t 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-is-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 tobacco-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/ tobacco 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/ nicotine-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/ publications / 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 item92 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 communities 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 prioritize 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 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. % 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. 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 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 Page 2 of 5 % 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 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. 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 Page 3 of 5 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. Glendale 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-unit buildings or designating at Page 4 of 5 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 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 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) Page 5 of 5 August 18, 2023 The Honorable Keith Blackburn Mayor, City of Carlsbad 1200 Carlsbad Village Dr. Carlsbad, CA 92008 • American Cancer Society 11]) 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 Network'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 council's interest in protecting your residents from the dangers of secondhand smoke 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 condominiums and townhomes (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 completely prohibit smoking in their homes but cannot control this when they live in attached housing without 100% smoke-free 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 lynda.barbour@cancer.org 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, :t::':~ Senior Government Relations Director, Southern California American Cancer Society Cancer Action Network 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 lynda.barbour@cancer.org A PUBLIC HEALTH ~LAW CENTER at Mitchell Hamlin@ School of Law / f American Lung Association. California / Joly2020 Law and Policy Partnership to End the Commercial Tobacco Epidemic HOUSING MODEL ORDINANCE .,., Introduction This Smoke-free Multiunit Housing Model Ordinance was prepared for California cities and counties interested in creating smoke-free multi unit 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 Tobacco 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. www.publichealthlawcenter.org/caltobacco .,., Customizing 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. l!lt.. PUBLIC HEALTH ~LAW CENTER ■t Mltch•tl l-t•mllne School of Uw / T American Lung Association. / Califomla In some instances, blanks (such as ) prompt you to customize the language to fit your community's needs. In other instances, the ordinance offers you a choice of options (such as 11 , )'1P ::i _ 1 " ). 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. """" Tips 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 Tobacco Control Program, and the American Lung Association in California. July 2020 www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 2 July 2020 AN ORDINANCE OF THE PROHIBITING SMOKING IN AND AROUND MULTIUNIT RESIDENCES AND AMENDING THE MUNICIPAL CODE The r·ty council/county board of supervisorc; of the rity/county of __ _ does ordain as follows: SECTION I. 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. lf 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 11. of the Municipal/ County Code is hereby amended to read as follows: Sec. 1. DEFINITIONS. For the purposes of this ::i rl :hapter the following definitions shall govern unless the context clearly requires otherwise: (A) "Common 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. www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 3 '1Jt. PUBLIC HEALTH ~LAW CENTER •t Mllc;hell H•mlin• Sdlo<>l of L,w / r American / Lung Association. California (B) "Common interest development" means: (1) A community apartment project as defined in California Civil Code section 4105, or any successor legislation; (2) A condominium project as defined in California Civil Code section 4125, or any successor legislation; (3) A planned development as defined in California Civil Code section 4175, or any successor legislation; and (4) A stock cooperative as defined in California Civil Code section 4190, or any successor legislation. (C) "Electronic 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, ore-hookah. (D) "Home owners' 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) "landlord" 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) "Multi unit 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. ; 1 I • J I ne., ➔~ 1ces er n rnc. i.. Jt:: 1 "I a hotel or 'llotel that meets the requirements of California Civil Code section 1940(b)(2)· (2) a mobile home park, campground; a marina or por~: a single-family home, <=:Xcep~ i used as a liealth care fac. l1ty suo1ect to l1c.ensing requ rernents, and July 2020 ,#.I'.' __________________________________________ _ www.publichealthlawcenter.org/caltob acco Smoke-free Multiunit Housing Model Ordinance 4 ~ PUBLIC HEALTH / ~LAW CENTER •t Mltchell H•mnn• Sehool of uiw / f American Lung Association. Califomla a single~family home with an accessorv 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 pi..rsuant to those sections, except where the accessory dwelling unit or second unit 1s rented or is used as a health care facility subject to licensing requirements. Note July 2020 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 multi unit 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 . .,~.---------------------------------------.a www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 5 ~ PUBLIC HEALTH ~LAW CENTER •l Mitc:h•II Hi!mlln• S.c;hool of Law / TAmerican Lung Association. Califomia (G) "Nonsmoking Area" means any area in which smoking is prohibited by (1) this rt Ue/chapte r or other law; (2) binding agreement relating to the ownership, occupancy, or use of real property; or (3) a person with legal control over the area. (H) "Person" means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity, including government agencies. (1) "Smoking" means: (1) inhaling, exhaling, or burning, any tobacco, nicotine, cannabis, or plant product, whether natural or synthetic; (2) carrying any 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 personal 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 motet; 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 ,,.,,,,_'L-----------------~---------------============i www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 6 1JJa PUBLIC HEALTH / T American ~ LAW CENTER Lung Association. ,n Mlkh•l1 Hamlin• School of llW / California Sec. 2. SMOKING RESTRICTIONS (A) Effective 90 days from ,,f, _ 1ve j c1te , smoking is prohibited anywhere on the premises of a multiunit residence, including units, common areas, and other outdoor areas. (8) No person with legal control over any multiunit residence shall permit smoking anywhere on the premises of the multi unit residence. Note July 2020 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(8) with the following new subsections: (b) Notwithstanding subsection (a), smoking is permitted in designated smoking areas if they meet the following conditions: (1) Must not be an enclosed area; (2) Must be at least twenty-five (25) feet from any: (a) outdoor recreation area such as a tennis court, swimming pool, and picnic area; or (b) outdoor area primarily used by children such as a playground; (3) Must have a clearly marked perimeter; and (4) Must be identified by conspicuous signs. (C) No person 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) 1 1.'..a ______________________________________ _ www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 1 ~ PUBLIC HEALTH / f American ~ ~,i~H~1~t{!~~ Lung Association. California July 2020 Note (continued) Insert as new subsection (d) in Sec. 1 (Definitions): (D) "Enclosed area" 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.S 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 tat1on to local ,ricorporabon of Sec. 6404 5(E)(E 11.:..--------------------------------------.i www.publichealthlawcenter.org /caltobacco Smoke-free Multiunit Housing Model Ordinance 8 l!Ja. PUBLIC HEALTH ~LAW CENTER at Mite hall Ha~I,..• School of l.aw / T American / Lung Association. California (C) No person with legal control over a common area in which smoking is prohibited by this arr1Lle. nc: p er 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 MULTIUNIT RESIDENCES. Note July 2020 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) After _ 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 providing that as of -e feL i 1e date+ 90 days], it is a material breach of the agreement to smoke or allow smoking: (a) in the unit, including exclusive-use areas such as balconies, porches, or patios; and (b) in any common area of the multiunit residence other than a designated smokmg 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. "Tenant 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) www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 9 ~ PUBLIC HEALTH ~LAW CENTER •t Mit(holl HamliM School of Law / T American / Lung Association. California Sample Language (continued) environment. As of _,. "-· 11,, ~~ t , tenant, members of tenant's household, and any guests under control of the tenant will not smoke anywhere: July 2020 (A) In the unit rented by tenant, including any associated balconies, decks, or patios; (B) In the common areas of the property, including, but not limited to, lobbies, hallways, stairwells, elevators, laundry rooms, community rooms, community bathrooms, or offices; or (C) Ontheoutdoorgroundsoftheproperty, tl1, ·1 .:1 J "'~ ,,· Jsr ~ 1g r _a including, but not limited to, entryways, playgrounds, pool areas, walking paths, or sitting areas. "Tenant 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. "Tenant will inform tenant's guests of the smoke-free policy. Tenant 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 providing 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." ,,,,,,,.,. ________________________________________ iii www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 10 ~ PUBLIC HEALTH ~LAW CENTER •t Mltchell liamlln• School of Uw / f American Lung Association. Califomia (3) A clause expressly conveying third-party beneficiary status to all occupants of the multi unit residence as to the smoking provisions of the lease or other rental agreement. Sample Language July 2020 "Tenant 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 landlord 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 [ ef+ectiv1:; date+ 90 days . (C) A tenant 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) Failure to enforce any smoking provision required by this _ article, hapter 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. Sec. 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. . 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 before ffec v J;, , ..,-i '> , every landlord shall deliver to each unit a copy of this -"' ,_ 1 -Jpte, and a written notice clearly stating: .,,,,,. ... ______________________________________ _ www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 11 '111;;, PUBLIC HEALTH t':;;;J LAWCEN TER •t Mitchell Hamlin• 5<:hool of Law / TAmerican Lung Association. Califomia (1) All units are designated nonsmoking units and smoking is prohibited in a unit, including any associated private balcony, porch, deck, or patio, as of etfec, 111:.. date+ q, ,M " ; and (2) Smoking in all common areas or outdoor areas e~ ~e.., f0 specif ,cally ctes,gnated ,, 1r,~ ~ _ 1 : s is a violation of r .it. ,..; _h.; p er as of "' fect,ve date 1-90 days (B) As of 1-;ec v J~ e , every landlord shall provide prospective tenants with written notice clearly stating that: (1) Smoking is prohibited in units, including any associated private balcony, porch, deck, or patio, as of i> 'ec.· rve late C lay., ; and (2) Smoking is prohibited in all common areas and outdoor areas except for specifically OPS.Zr ,i>L sr,c , 1:; d Pa:. as of · e''" ,ive <.ate 90 da., (C) As of effect, ve 1"1 e + ,o dayc: , 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 Pt t \ P rL " '-9r -1 ) , , 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 a -t ~1"' chc pter . "No Smoking" signs are not required inside or on doorways of units F-t.ept for hotels or moteh th~ t "et the c.r ,e a ted n :,. ,tor ~ -i ✓ Cc,d sectio 11940, subdivision (b)(2) ). Note July 2020 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) Landlords 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. f ..,f 1tb m ot ne dependence SJC 11 a~ referrals to qu,tli ,e or onlrne resources ] www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 12 e PUBLIC HEALTH / T American ~~~H9i!~~'!~~ Lung Association. Ca!ifomia Sec. . REQUIREMENTS FOR COMMON INTEREST DEVELOPMENTS. The following requirements apply to common interest developments: (A) On or before effective date+ ,C', ays , the HOA shall provide to all owners of units a copy of this Jrticle/chapte and written notice clearly stating that: (1) Smoking is prohibited in units, including any associated private balcony, porch, deck, or patio, as of eftect,ve d,ne + 90 day::. ; and (2) Smoking is prohibited in all common areas and outdoor areas except for spec1f1cally d,5ig 1ated sm.:>k ni!'> a eas, as of effect ve daLe -r ::IL da/.:, . (8) As of e fe-~ive date every seller of a unit shall provide prospective buyers or renters, a copy of this article1chapter and written notice clearly stating that: (1) Smoking is prohibited in units, including any associated private balcony, porch, deck, or patio, as of " ef ecnve ,face -t 41) da:i,s ~; and (2) Smoking is prohibited in all common areas and outdoor areas , except for specifically desig12te-:J smoking areas ~ as of _ effeci, e -:I te ...-~ J :la,:, . (C) As of " effective dat~ + 90 davs ], 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) HOAs 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. ThP HOA s~al a S<' drstr ,, 1 e "'SvL r~e'-~r \ 1 Jad to, r ·ee by ~h .. r L t11 ;;our /: o ;:issrst Ml ,1 nicotine dependence, such as referrals to quitline or on line resources. July 2020 ,,,,_,_ ______________________________________ _ www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 13 ~ PUBLIC HEALTH ~LAWCENTER at Ml\ch•N H•mllfl♦ School of uiw / !American Lung Association. / California Sec. . NUISANCE; OTHER (A) The provisions of this a e/ ~hdJ er shall be liberally construed to protect the public health to the maximum effect possible. Notwithstanding (1) any provision of this If', l c'f ~ or of this code, (2) any failure by any person to restrict smoking under this dr • "t 'i-h..ir:.,t» , 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) Any violation of this _ rticle/chapte1 is hereby declared to be a public nuisance. Note By expressly declaring that a violation of this ordinance is a nuisance, this provision July 2020 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) Nonconsensual exposure to smoke from smoking occurring on or drifting into " , 1 , property is a nuisance. ,,,,. ________________________________________ liill www.publichealthlawcenter.org/cattobacco Smoke-free Multiunit Housing Model Ordinance 14 IJlt. PUBLIC HEALTH ~LAW CENTER el Mil'c:hell Harnllf"I• School of Uw Note / T American / / Lung Association. California July 2020 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. __ (•o) . PENALTIES AND ENFORCEMENT. Note Enforcement of smoke-free multi unit 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) .,,,,,..,__. ______________________________________ _ www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 15 #!It;. PUBLIC HEALTH ~LAW CENTER at Mitc:heff H•mlin• School of Law / Note (continued) rAmerican Lung Association. California risks should be carefully weighed by the municipality as policymakers consider whether to include criminal and monetary penalties and how to structure those penalties. July 2020 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) The remedies provided by this a 1 ·c e rf-, Jp p are cumulative and in addition to any other remedies available at law or in equity. (B) Any person exposed to secondhand smoke as a result of a violation of this arlic'e :. dpte1 may initiate enforcement of this a le _ apter by registering a complaint with the cit ~.. t, r ,c.r ag , or his or her designee. (C) Enforcement of this chapter shall be the responsibility of r dPpar' ne'l 'J' housing n~pen 1s/1 L b 1 ., t 1 /c 'hPt . In addition, any code enforcement official may enforce this chapter. (D) Landlords or HOAs found to have violated this -,rt c e/cha..,~e are subject to a civil fine not less than "', i.. n l e h, Ju a :, ... s:) and not exceeding 11e ti L ~ -=in 1 ..1~11a ~ :pt,CO 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.) www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 16 IJlt. PUBLIC HEALTH / ~LAW CENTER et Mltc-h•II Hamlrn• School of law / f American Lung Association. California (E) No person shall intimidate, harass, or otherwise retaliate against any person who seeks compliance with this art " <>/chapte . Any person in violation of this subsection is subject to a civil fine not less than , ,v v 1 fl c:J !i d0 lars $[01 and not exceeding o 1e 101 san, ,JI a" ti OOv per violation. Note July 2020 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 to other remedies provided by this -article, ',:hapte _ or otherwise available at law or in equity, any violation of this arr le/c.hapte may be remedied by a civil action brought by the r ci,11 1t+orr ey/c:oum cc1_1se· ,, 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. 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. ,,,,, _______________________________________ !!m!l!!!l!I www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 17 l!Jlta PUBLIC HEALTH ~LAW C EN TER •l Mltch•ll H~m~n• Schoof or Uw / TAmerican / Lung Association. California (G) Any person may bring a civil action to enforce this IP 'chapt"' to prevent future violations and may sue to recover actual or statutory damages, including court costs, and attorney fees. SECTION Ill. CONSTRUCTION, SEVERABILITY. It is the intent of the r , co ~~ I b lj Jc/ s ,..e ,, , J of the L 0'v 'r... it~ 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 11 1 '-._ ricd/ooard of supe v1s0 c; of the c 1ty' JL r 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, subsections, subdivisions, paragraphs, 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 • Tobacco 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; and2 WHEREAS, tobacco use is the number one cause of preventable death in California2 and continues to be an urgent public health issue, as evidenced by the following: July 2020 www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 18 l!Jt. PUBLIC HEALTH ~LAW CENTER •t Mltch•II H•mlln• $c~ Qf L.tw / TAmerican Lung Association. / California • 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 multi unit 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 l 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 ,1..----------------------------------------,; www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 19 • 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;11-19•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 July 2020 ,,,,_ ________________________________________ _ www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 20 ~ PUBLIC HEALTH ~LAWCENTER ~t Mitchell t-lunlin• School o, Law / T American / Lung Association. California • 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 Tobacco 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 multi unit housing can and does transfer between units, seeping into smoke-free areas from areas where smoking occurs;35 • Residents of multi unit 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 multi unit housing have 45% higher cotinine levels than children who live in detached houses;36•37 • Twelve studies have found between 26% and 64% of residents of multiunit housing report secondhand smoke drifting into their home;36 July 2020 .,,,,.,_ ________________________________________ In www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 21 ~ PUBLIC HEALTH / r American ~ LAW CENTER ' Lung Association. al Mitc:h•II H•mlin• School or Uw / 1 California • 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 multi unit 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 multi unit 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;40A1 • 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 multi unit 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 www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 22 ~ PUBLIC HEALTH / f American ~ LAW CENTER / Lung Association. •t MltcMII Homllno School of uw California • 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 multi unit 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 multi unit 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 multi unit housing (25.2%) are under the age of 18;39 July 2020 www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 23 l!Ja. PUBLIC HEALTH ~LAW CENTER •t Mltch•II Ha,NiM School of Law / T American / Lung Association. California • 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 1f 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 July 2020 II'..---------------------------------------- www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 24 l!IJ.. PUBLIC HEALTH ~LAW CENTER at Mitch.ti H•mlln• Seho<il ot Lew / T American / Lung Association. Califomia 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 uty council/coun v 1:10;:1 c: I)' supervisors in enacting this ordinance, 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 World Health Organization. WHO Report on the Global Tobacco Epidemic, 2019: Offer Help to Quit Tobacco Use. 2019. Available at: https://apps.who.int/iris/handle/10665/326043. 2 U.S. Department 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/Bookshe1f_NBK179276.pdf. 3 Campaign for Tobacco-Free Kids. The Toll of Tobacco in California. Available at: www.tobaccofreekids.org/problem/toll- us/california. Accessed June 2, 2020. 4 Lortet-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 Cancer Institute. A Socioecological Approach to Addressing Tobacco-Related Health Disparities. National Cancer Institute Tobacco Control Monograph 22. NIH Publication No. 17-CA-803SA. 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 California Tobacco Cont rol Program, California Department of Public Health. California Tobacco Facts and Figures 2019. Available at: https://www.cdph.ca.gov/Programs/CCDPHP/DCDIC/CTCB/CDPH%20Document%20Library/Re- searchandEvaluation/FactsandFigures/CATobaccoFactsandFigures2019.pdf. Accessed June 2, 2020. July 2020 www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 25 1!11;;. PUBLIC HEALTH ~LAW CENTER ■t Mltch-'I H•mllne School of t..w / / TAmerican Lung Association. California 7 U.S. Department 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 Resources Board, California Environmental Protection Agency. Frequently Asked Questions -Environmental Tobac- 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 California Identifies Secondhand Smoke as a 'Toxic Air Contaminant" [press release]. January 26, 2006. Available at: www.arb.ca.gov/newsrel/nr012606.htm. Accessed June 2, 2020. 10 Office of Environmental Health Hazard Assessment, California Environmental Protection Agency. The Proposition 65 list. https://oehha.ca.gov/proposition-65/proposition-65-list. Accessed June 19, 2020. 11 American Society of Heating Refrigerating and Air Conditioning Engineers (ASH RAE). 2015 Addenda Supplement to ANSI/ASHRAE Standard 62.1-2013, Ventilation for Acceptable Indoor Air Quality. Atlanta, GA: ASHRAE. 2015. Available at: https//www.ashrae.org/file%20library/technical%20resources/standards%20and%20guidelines/standards%20 addenda/62 1 2013 2015supplement 20150203.pdf. 12 American Heart 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 Association. Public Policy Position -Healthy Air. Chicago, IL: American Lung Association. 2019. Available at: https://www.lung.org/policy-advocacy/public-policy-agenda/public-policy-position-healthy-air. Accessed June 2, 2020. 14 DiGiacomo SI, Jazayeri MA, Barua RS, Ambrose JA. Environmental Tobacco Smoke and Cardiovascular Disease. Int J Environ Res Public Health. 2018;16(1):96. doi: 10.3390/ijerph16010096. 15 Centers for Disease Control and Prevention (CDC). CDC Vital Signs -Secondhand Smoke: An Unequal Danger. February 2015. Available at: www.cdc.gov/vitalsigns/pdf/2015-02-vitalsigns.pdf. Accessed June 3, 2020. 16 California Tobacco Control Program, California Department of Public Health. State Health Officer's Report on £-Cigarettes: 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 Academies of Sciences, Engineering, and Medicine. Public Health Consequences of £-Cigarettes. 2018. Washing- ton, DC: The National Academies Press. Available at: https://www.nap.edu/catalog/24952/public-health-consequenc- es-of-e-cigarettes. 18 Fowles J, Barreau T, Wu N. Cancer and Non-Cancer Risk Concerns from Metals in Electronic Cigarette Liquids and Aerosols. Int J Environ Res Public Health. 2020;17(6):2146 doi: 10.3390/ijerph17062146. 19 U.S. Department of Health and Human Services. E-Cigarette Use Among Youth and Young Adults: 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. 2016. Available at: https://www-ncbi-nlm-nih-gov.ezp1.lib.umn.edu/books/NBK538680/pdf/Bookshelf NBK538680.pdf. 20 Romberg AR, Miller Lo EJ, Cuccia AF, et al. Patterns of nicotine concentrations in electronic cigarettes sold in the United States, 2013-2018. Drug Alcohol Depend. 2019:201:1-7. doi: 10.1016/j.drugalcdep.2019.05.029. 21 Cao DJ, Aldy K, Hsu S, et al. Review of Health Consequences of Electronic Cigarettes and the Outbreak of Electronic Cigarette, or Vaping, Product Use-Associated Lung Injury. J Med Toxico/. 2020 Apr 16. Doi: 10.1007/sl3181-020-00772-w. July 2020 www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 26 IJlt. PUBLIC HEALTH ~ LAW CENTER at. MJtch•II H•mlln• school or Yw / rAmerican Lung Association. California 22 Staudt MR, Sal it J, Kaner RJ, Hollmann C, Crystal RG. Altered lung biology of healthy never smokers following acute inhalation of E-cigarettes. Respiratory Research. 2018;19:78. doi:10.1186/s12931-018-0778-z. 23 Tzortzi A, Teloniatis SI, Matiampa G. et al. Passive exposure toe-cigarette emissions: Immediate respiratory effects. Tob. Prev. Cessation. 2018;4(May):18. doi.org/10.18332/tpc/89977. 24 Shields PG, Berman M, Brasky TM, et al. A Review ot Pulmonary Toxicity of Electronic Cigarettes In The Context of Smoking: A Focus On Inflammation. Cancer Epidemiol Biomarkers Prev. 2017;26(8):1175-1191. doi:10.1158/1055-9965. EPl-17-0358. 25 Visser WF, Klerx W N, Cremers HWJM, et al. The Health Risks of Electronic Cigarette Use to Bystanders. Int J Environ Res Public Health. 2019;16(9):1525. doi: 10.3390/ijerph16091525. 26 Bayly J E, Bernat D, Porter L. Choi K. Secondhand Exposure to Aerosols From Electronic Nicotine Delivery Systems and Asthma Exacerbations Among Youth With Asthma. Chest. 2019;155(7)88-93. doi: 10.1016/j.chest.2018.10.005. 27 Tzortzi A, Teloniatis S, Matiampa G, et al. Passive Exposure of Non-Smokers to E-Cigarette Aerosols: Sensory Irrita- tion, Timing and Association With Volatile Organic Compounds. Environ Res. 2020;182:108963. doi: 10.1016/j.en- vres.2019.108963.28 Cullen KA, Ambrose BK, Genztke AS, et al. Notes from the field: use of electronic cigarettes and any tobacco product among middle and high school students-United States, 2011-2018. MMWR Morb Mortal Wkly Rep. 2018;67(45):1276-1277. doi: 10.15585/mmwr.mm6745a5. 29 Lin C. Baiocchi M. Halpern-Felsher B. Longitudinal trends in e-cigarette devices used by Californian youth, 2014-2018. Addict Behav. 2020;108:106459. doi: 70.1016/j.addbeh.2020.106459. 30 American Society of Heating Refrigerating and Air Conditioning Engineers (ASH RAE). ASHRAE Position Document on Environmental Tobacco Smoke. Atlanta, GA: ASH RAE. 2019. Available at: https://www.ashrae.org/file%20library/about/ position%20documents/ashrae pd_environmental_tobacco smoke 2019.pdf. 31 State of California Tobacco Education and Research Oversight Committee (TEROC). Position on Electronic Smoking Devices (AKA £-cigarettes). 2015. Available at: www.cdph.ca.gov/Programs/CCDPHP/DCDIC/CTCB/CDPH%20Docu- ment%20Library/TER0C/lnfoGraphicReportsLetters/TEROCECigarettePositionStatement122215.pdt. 32 California Environmental Protection Agency. Evidence on the Carcinogenicity of Cannabis Smoke. Sacramento, CA: Cali- fornia Environmental Protection Agency, Office ot Environmental Health Hazard Assessment, Reproductive and Cancer Hazard Branch. 2009. Available at: https://oehha.ca.gov/media/downloads/proposition-65/chemicals/tinalmjsmoke- hid.pdf. 33 Herrmann, ES, Cone, EJ, Mitchell, JM, et al. Non-Smoker Exposure to Secondhand Cannabis Smoke II: Effect of Room Ventilation on the Physiological, Subjective, and Behavioral/Cognitive Effects. Drug Alcohol Depend. 2015;151:194-202. doi: 10.1016/j.drugalcdep.2015.03.019. 34 Holitzki H, Dowsett LE, Spackman E, Noseworthy T, Clement F. Health effects of exposure to second-and third-hand marijuana smoke: a systematic review. CMAJ Open. 2017;5(4):E814-E822. doi:10.9778/cmajo.20170112. 35 King BA, Travers MJ, Cummings KM, Mahoney MC, Hyland AJ. Secondhand smoke transfer in multiunit housing. Nico- tine Tab Res. 2010;12:1133-1141. doi:10.1093/ntr/ntq162. 36 Snyder K, Vick JH, King BA. Smoke-free multiunit housing: a review of the scientific literature. Tob Control. 2016;25:9-20. doi: 10.1136/tobaccocontrol-2 014-051849. 37 Wilson KM, Klein JD, Blumkin AK, Gottlieb M, Winickoff JP. Tobacco smoke exposure in children who live in multiunit housing. Pediatrics. 2011;127(1):85-92. doi: 10.1542/peds.2010-2046. July 2020 w ww.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 27 ~ PUBLIC HEALTH ~LAW CENTER a, Mltch•H ~•mUn• School of Law TAmerican Lung Association. California 38 Toy P, Yount C, Meng YY, et al. Health at Risk: Policies Are Needed to End Cigarette, Marijuana, and E-Cigarette Secondhand Smoke in Multi-Unit Housing in Los Angeles. Los Angeles, Calif.: UCLA Center for Health Policy Research. 2020. Available at: http://healthpolicy.ucla.edu/publications/Documents/PDF/2020/Hea1th-at-Risk-policybrief-may2020.pdf. 39 King BA, Babb SD, Tynan MA, Gerzoff RB. National and state estimates of secondhand smoke infiltration among U.S. multiunit housing residents. Nicotine Tob Res. 2013; 15(7):1316-1321. doi:10.1093/ntr/nts254. 40Kuschner WG, Reddy S, Mehrotra N, Paintal HS. Electronic cigarettes and thirdhand tobacco smoke: two emerging health care challenges for the primary care provider. Int J Gen Med. 2011;4:115-20. doi:10.2147/IJGM.S16908. 41 Whitlatch A, Schick S. Thirdhand Smoke at Philip Morris. Nicotine Tob Res. 2019;21(12):1680-1688. doi: 10.1093/ntr/ nty153. 42 Matt GE, Quintana PJE, Zakarian JM, et al. When smokers move out and non-smokers move in: residential thirdhand smoke pollution and exposure. Tob Control. 2011;20(1):el . doi:10.1136/tc.2010.037382. 43 Matt GE, Quintana PJE, Hoh E, et al. Persistent Tobacco Smoke Residue in Multiunit Housing: l egacy of Permissive Indoor Smoking Policies and Challenges in the Implementation of Smoking Bans. Prev Med Rep. 2020;18:101088. doi: 10.1016/j.pmedr.2020.101088. 44Sleiman M, Gundel LA, Pankow JF, Jacob P, Singer BC, Destaillats H. Formation of carcinogens indoors by surface-me- diated reactions of nicotine with nitrous acid, leading to potential thirdhand smoke hazards. Proc Natl Acad Sci US A. 2010;107(15):6576-81. doi:10.1073/pnas.0912820107. 45 Hang B, Sarker AH, Havel C, et al. Thirdhand smoke causes DNA damage in human cells. Mutagenesis. 2013;28(4):381- 91. doi:10.1093/mutage/get013. 46 Hang B, Wang P, Zhao Y, et al. Thirdhand Smoke: Genotoxicity and Carcinogenic Potential. Chronic Dis Transl Med. 2019;6(1):27-34. doi: 10.1016/j.cdtm.2019.08.002. 47 U.S. Fire Administration. Fire in the United States 2008-2017. Emmitsburg, MD: Department of Homeland Security, Fed- eral Emergency Management Agency, U.S. Fire Administration. 2019. Available at: https://www.usfa.fema.gov/down- loads/pdf/publicatio11s/fius20th.pdf. 48 National Fire Protection Association. Home Fires Started by Smoking. Quincy, MA: National Fire Protection Association. 2019. Available at: https;//www.nfpa.org/-/media/Files/News-and-Research/Fire-statistics-and-reports/US-Fire- Problem/Fire-causes/ossmoking.ashx. 49 Chambers C, Sung H, Max W. Home Exposure to Secondhand Smoke among People Living in Multiunit Housing and Single Family Housing: A Study of California Adults, 2003-2012. J Urban Heal. 2015;92(2):279-90. doi:10.1007/s11524- 014-9919-y. 50 Hollar TL, Cook N, Quinn D, Phillips T, Delucca M. Smoke-free multiunit housing policies show promise in reduc- ing secondhand smoke exposure among racially and ethnically diverse, low-income seniors. J lmmigr Minor Health. 2017;19(6):1281-1289. doi.org/10.1007/sl0903-016-0430-2. 51 Gentzke AS, Hyland A, Kiviniemi M, Travers M J. Attitudes and Experiences with Secondhand Smoke and Smoke-Free Policies Among Subsidised and Market-Rate Mult iunit Housing Residents Living in Six Diverse Communities in the USA. Tob Control. 2018;27(2):194-202. doi: 10.1136/tobaccocontrol-2016-053374. 52 Young W, Karp S, Bialick P, et al. Health, Secondhand Smoke Exposure, and Smoking Behavior Impacts of No-Smoking Policies in Public Housing, Colorado, 2014-2015. Prev Chronic Dis. 2016;13:E148. doi: 10.5888/pcd13.160008. 53 Nguyen KH, Gomez Y, Homa DM, King BA. Tobacco Use, Secondhand Smoke, and Smoke-Free Home Rules in Multiunit Housing. Am J Prev Med. 2016;51(5):682-692. doi: 10.1016/j.amepre.2016.05.009. July 2020 www.publichealthlawcenter.org/caltobacco Smoke-free Multiunit Housing Model Ordinance 28 ~ PUBLIC HEALTH ~LAWCENTER at Mltch•II Hamlin• School of Law / TAmerican Lung Association. California 54 Holmes LM, Llamas JD, Smith D, Ling PM. Drifting Tobacco Smoke Exposure Among Young Adults in Multiunit Housing. J Community Health. 2020;45(2):319-328. doi: 10.1007/s10900-019-00743-5. 55 Delgado-Rendon A, Cruz TB, Soto D, Baezconde-Garbanati L, Unger JB. Second and Thirdhand Smoke Exposure, Atti- tudes and Protective Practices: Results from a Survey of Hispanic Residents in Multi unit Housing. J Immigrant Minority Health. 2017;19(5):1148-1155. doi.org/10.1007/sl0903-016-0540-x. 56 Wilson KM, Torok MR, McMillen RC, et al. Tobacco-Smoke Incursions and Satisfaction Among Residents W ith Children in Multiunit Housing, United States, 2013. Public Health Rep. 2017;132(6):637-645. doi: 10.1177/0033354917732767. 57 Wang TW, Lemos PR, McNabb S, King BA. Attitudes toward Smoke-Free Public Housing among US Adults, 2016. Am J Prev Med. 2018 Jan;54(1):113-118. doi: 10.1016/j.amepre.2017.08.026. 58 American Lung Association of California. California Voter and Rural Voter Attitudes About Secondhand Smoke in Multi-Unit Housing: Public Opinion Survey. 2018. 59 McFarlane A, Djoko Y, Woodward A. Instituting Smoke-Free Public Housing: An Economic Analysis. Cityscape. 2017;19(3):435-448. Available at: https://www.huduser.gov/portal/periodica1s/cityscpe/voll9num3/ch24.pdf. 60 King BA, Peck 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/pcdll.140222. 61 Ong M K, Diamant AL, Zhou Q, Park 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 Smoke-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 Vijayaraghavan 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 Hafez AY, 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. Civ. Code§ 1947.5. 66 Public Health Law Center. There Is No Constitutional Right lo Smoke or Toke. Saint Paul, MN: Public Health Law Center. 2019. Available at: https://publichealthlawcenter.org/sites/default/files/resources/No-Constitution- al-Right-Smoke-Toke-2019.pdf. 67 Cal. Civ. Code§ 3479. 68 In Re Jones, 56 Cal.App.2d 658, 663 (1943); See also Cal. Const., art. XI, § 7 and Cal. Gov. Code § 38771. July 2020 www.publichealthlawcenter.org/caltobacco Smoke-free Mult iunit Housing Model Ordinance 29 A PUBLIC HEALTH ~LAW CENTER at Mitchell Hamllne School of Law / f American Lung Association. California / Sep<embe, 2022 Law and Policy Partnership to End the Commercial Tobacco Epidemic SMOKE-FREE MULTI-UNIT HO-USING ENFORCEMENT GUIDE ,,,, Overview This guide is designed to help decisionmakers and stakeholders enacting or modifying smoke- free multi-unit housing policies in determining the best options for equitable enforcement. It is meant to be used as a companion to the Partnership's model ordinance, which contains more detailed language and explanation of various enforcement choices. For further information on topics relevant to multi-unit housing ordinances, such as content on cannabis regulation or tenant resources, see our California resource page. Not all jurisdictions have the same resources or community preferences, so we have included a range of enforcement options and provided context for the benefits and cautions of each from an equity perspective. We have provided recommendations as to which enforcement options are considered best practices and more equitable (coded green~), which options might require some more caution or consideration ( ), and the options that the Partnership recommends against (coded red 0 ). Some of these options THIS IS A SMOKE FREE BUILDING have been used across many jurisdictions, while others are emerging strategies. Having access to safe, affordable, stable housing is a key to both physical and mental health outcomes. But allowing smoking in shared housing makes safe and stable housing difficult to achieve health for all residents. Exposure to secondhand smoke in multi-unit housing can lead to poor health, including asthma and other lung problems, particularly among pregnant women, children, and the elderly. The health impacts of secondhand ,_,_ ________________________________________ _ www.publichealthlawcenter.org/caltobacco ~ PUBLIC HEALTH ~LAW CENTER •l Mltc:hell Hamllna, School ot Law / TAmerican Lung Association. California NO SMOKING WITIIIN IIOCICREEI HOA PROPERTY September 2022 smoke are also felt most by communities of color, and other vulnerable groups. For instance, Hispanic/Latinx residents and African American children have some of the highest secondhand smoke exposure levels. Thirdhand smoke -residual nicotine and other chemicals left on furniture, walls, and other surfaces by commercial tobacco1 smoke -is also toxic, particularly to children. Enforcement is important to ensure effective compliance and implementation of smoke-free multi- unit housing policies. Enforcement can and should achieve the dual goals of protecting residents from secondhand smoke exposure and ensuring housing stability for all residents whenever possible. Several factors should be considered in pursuing these goals, 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 such as racial profiling posed by different enforcement mechanisms); and the process of enforcement. Part of the consideration for equitable enforcement should involve determining which entity (e.g., code enforcement, landlord, city or county attorneys, the public, police) is best positioned to effectively enforce and will result in the fewest potential negative collateral consequences. In addition to the enforcement options discussed below, engaging in an education campaign such as providing educational materials or presentations for residents, staff training, and signage or notices to residents could reduce the number of tenants in violation of any policy. Further, including cessation information in an education campaign can promote behavior change and support people in quitting. See our model ordinance for more information. We acknowledge that in the context of the current housing crisis, particularly concerns around COVID-19 and expiring eviction moratoriums, there is an understandably heightened concern around the best options for enforcement in this area. The Partnership stands ready to provide legal technical assistance on questions related to a particular jurisdiction or enforcement strategy. ,,,_.,. ______________________________________ _ www.publichealthlawcenter.org/caltobacco Smoke-Free Multi-Unit Housing Enforcement Guide 2 ~ PUBLIC HEALTH / ~LAWCENTER •t Milch•U Homffn• School ol Law / TAmerican Lung Association. Califomla September 2022 0 Most preferred/most equitable 0 Not recommended by the Partnership _,_, Enforcement Options 0 Graduated enforcement by landlord Benefits • Taking tiered steps to violations such as providing cessation materials, verbal or written warnings to tenants, informal conferences, or requiring written acknowledgment of the policy can improve compliance (see NYC Housing Authority example, MN model lease addendum, or other examples) • Providing cessation materials can help support smokers affected by smoke-free policies to quit • Using steps like "resetting the clock" if there has been no violation for a certain period, or if a tenant has completed cessation support counseling, can give residents second chances and incentivizes compliance • Can prohibit eviction as a penalty Cautions • These tiered steps may not be sufficient to obtain compliance, so there may need to be a stronger penalty as a last resort 0 Civil fines against landlords/HOAs Benefits • Civil fines for landlords for violations of smoke-free ordinances can be effective at incentivizing enforcement by landlords, and can also be graduated • Can be an effective incentivize for HOAs, as they have fiduciary responsibility for their owners' money • Can limit the potential negative consequences of direct enforcement against tenants, such as civil fines www.publichealthlawcenter.org/caltobacco Smoke-Free Multi-Unit Housing Enforcement Guide 3 ~ PUBLIC HEALTH / f American ~ ~,i~ H9,~~:E~~ Lung Association. Califomla September 2022 • Can allow tenants to initiate enforcement by registering a complaint with a designated local government employee Cautions • Landlords or HOAs may be motivated to take stronger steps against tenants than they otherwise would, potentially including actions like eviction 9 Community service Benefits • As an alternative to civil fines, community service can limit the financial hardship on residents • Can be tailored to assist tobacco cessation or tobacco waste cleanup efforts Cautions • Community service may still pose a financial hardship to some individuals, such as if they are required to miss work or arrange for childcare • If enforced by police, may open the door to other collateral consequences • May require community to invest in new resources or programs 9 Restorative justice2 Benefits • Restorative justice, if all impacted parties agree to participate as an alternative to other enforcement, can be a very effective way to repair harm and potentially transform behavior Cautions • Requires involvement of individuals trained in restorative justice practices, so may have some budget impacts • Since it requires willing participation from all parties, it may not always be possible to use this approach 9 Nuisance3 Benefits • Permits a range of nuisance abatement tools commonly used by city or county attorneys, such as restraining orders, or preliminary or permanent injunctions ,,,,.,_ ______________________________________ _ www.publichealthlawcenter.org/caltobacco Smoke-Free Multi-Unit Housing Enforcement Guide 4 ~ PUBLIC HEALTH ~ LAW CENTER at Mitchell Hamlln• School of law / TAmerican Lung Association. California September 2022 Cautions • May require too many local government resources to be widely used • May expose marginalized communities to unnecessary involvement with law enforcement • May result in escalated consequences or misdemeanor charges in some jurisdictions ti Enforcement through lease Benefits • Including smoke-free requirements in lease terms (with appropriate language translations) creates clear expectations for new and existing tenants Cautions • Depending on how drafted, could allow for evictions, which can impact health outcomes and worsen existing economic disparities (see full discussion below) Benefits • Enforcement by housing inspectors, health departments, or other civil employees removes the potential collateral consequences from police/criminal enforcement • Could act as a deterrent in some circumstances Cautions • May be a budget impact on a jurisdiction to add new duties to city or county workers • Administrative fines may cause financial hardship depending on a resident's financial circumstances • Risk of discriminatory/unequal enforcement Benefits • Allowing private civil actions can help ensure there is adequate enforcement of smoke- free policies • Gives some agency to tenants to act on their own behalf www.publichealthlawcenter.org/caltobacco Smoke-Free Multi-Unit Housing Enforcement Guide s TAmerican Lung Association. California September 2022 Cautions • When directed against other tenants, there is a risk of discriminatory/unequal enforcement • Can foster distrust and hostility between tenants • May burden the judicial system • Litigants may struggle to prove smoking occurred Benefits • Could be used as a last resort for repeat violations of no-smoking policy to protect the health of other tenants • Could specify a certain number of warnings/violations before an eviction could proceed to allow for multiple chances to comply (see example, page 30) • Could allow for no lease renewal instead of immediate eviction as alternative Cautions • Can impact health outcomes and worsen existing economic disparities, particularly for Black, Indigenous, or other people of color who are disproportionately renters (63% in CA, compared to 50% if homeowners) • Can make it more difficult for individuals to obtain other housing • Could be used as pretext to remove tenant when a landlord or another resident wants to evict for a reason unrelated to smoking • If can be applied to smoking by guests, can penalize tenants for others' actions • Knowing that eviction could be an outcome for a neighbor might discourage residents from reporting smoking policy violations • Elderly residents could lose housing as a result of another family member's smoking 0 Eviction as a first response Cautions • In addition to the cautions listed above, using a "one strike" approach to eviction risks housing instability for tenants without giving them an opportunity to correct or, even better, the opportunity to pursue cessation with the CA Smokers' Helpline or through local treatment programs ,1#,:,,C:.==========--========:::==:=:==:::::==::::::==============================:::i www.publichealthlawcenter.org/caltobacco Smoke-Free Multi-Unit Housing Enforcement Guide 6 IJlt. PUBLIC HEALTH ~LAWCENTER .at Mltc:hell l-lamlln• School of Ulw / / TAmerican Lung Association. California September 2022 0 Criminal enforcement Cautions • Criminal sanctions have been shown to have negative public health consequences and engender inequities. • Often disproportionately targets individuals of color and can lead t o collateral consequences including impact on immigration status, triggering a probation or parole violation, a summons leading to a criminal record or a warrant, or increased distrust of law enforcement. • If an enforcement action triggers more severe criminal sanctions, could potentially jeopardize housing, benefits, education, and employment. This publicat ion was prepared by the American Lung Association in California and 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 publication was made possible by funds received from Grant Number 19-10229 w ith the California Department of Public Health, California Tobacco Control Program, and the American Lung Association in California. Endnotes The Public Health Law Center recognizes that traditional and commercial tobacco are different in the ways they are planted, grown, harvested, and used. Traditional tobacco is and has been used in sacred ways by Indigenous communi- ties and tribes for centuries. Comparatively, commercial tobacco is manufactured with chemical additives for recre- ational use and profit, resulting in disease and death. For more information, visit: http://www.keepitsacred.itcmi.org. When the word "tobacco" is used throughout this document, a commercial context is implied and intended. 2 Restorative justice focuses on repairing harm caused by crime and reducing future harm through crime prevention. It often involves a cooperative process where willing stakeholders meet to discuss the harm and how to bring about a resolution. See www.restorativejustice.org. 3 A public nuisance is a legal doctrine that applies when a person unreasonably interferes with a right that the general public shares in common. Loca l ordinances can declare violations of the smoke-free ordinance to be a public nuisance, opening up this enforcement option. 4 NOTE: Even in jurisdictions that have included eviction as an enforcement option, the majority have not evicted residents for violating smoke-free policies. Given the understandable and growing concern around eviction and housing stability, though, increasingly jurisdictions are pursuing smoke-free multi-unit housing policies that prohibit eviction as an enforcement option. The Partnership is available to provide legal technical assistance tailored to the preferences of local jurisdictions. www.publichealthlaw center.org/caltobacco Smoke-Free Mult i-Unit Housing Enforcement Guide 7 Enforcement of smoke-free multi-family housing policies should balance the goal of protecting residents from secondhand smoke exposure with the goal of ensuring housing stability for all residents. ENFORCEMENT AGENCY • City Manager • Code Enforcement ---VIOLA Tl ON DEFINITION • Resident., guest of resident., service provider or other visitor smoking or vaping in a prohibited area • Smoking-related damage to inside of unit • Evidence of smoking inside of unit such as smells, ashes or other debris, lighted or burning product • No posted signage throughout property • Manager/Landlord/HOA not taking action against violations Who to be cited: • Resident in violation COMPLAINT WORKFLOW I Step 1: Individual issuing complaint fills out web-based form on City website, City app if available or call to Code Enforcement Information to include: o Address of violation o Witness accounts o Photos, if possible o Date and time of violation o Location of violation (i.e. smoke drifting from downstairs unit through bathroom vent, neighbor smoking on outdoor patio and drifting through sliding glass door to family room, etc.). Step 2: Code Enforcement records complaint to central database and collects any supporting evidence. Issues Notice of Concern to resident in violation and property manager/ owner of residence. Step 3: Code Enforcement receives second complaint from different complainant within 3-month period from first complaint Code Enforcement opens a case, records complaint to central database and collects any supporting evidence. Step 4: Code Enforcement inspects complaints to establish presence of violation. If violation is present, issues second Notice of Concern to resident in violation and property manager/ owner of residence. Confinns compliance within 30 business days from second complaint 1bis can be follow-up phone calls and/ or in-person inspection. Step 5: If compliance not confirmed, Code Enforcement follows appropriate Violation Schedule outlined below. Step 6: Code Enforcement follows up as needed with individual issuing complaint COMPLAINT PROCESSING PROCEDURE First complaint received: Code Enforcement issues Notice of Concern to resident in viohtion and property manager/ owner of property of residence with details of complaint received. o Notice of Concern is a courtesy and not a formal action. It includes information about the ordinance and provides the opportunity for resident to remedy the situation before formal action is taken. o Cessation resources included with Notice. Second complaint received: If a complaint is received within a 3-month period from a different source as the first complaint received, Code Enforcement issues second Notice of Concern to resident in violation and property manager/ owner of property of residence with details of violation. o Second Notice of Concern is a courtesy and not a formal action. It includes information about the ordinance and provides the opportunity for resident to remedy the situation before formal action is taken. o Cessation resources included with Notice. Third complaint received: If a complaint is received within a 6-month period from the second Notice of Concern, Code Enforcement issues Notice of Citation to resident in viohtion with details of viohtion. o Notice of Citation is a formal complaint recorded as a viohtion for the resident o An administrative fine not exceeding $100 for the third complaint within a 6-month period from the second Notice of Concern. o The city may, at its discretion, issue community service as an alternative to a fine. o Cessation resources included with Notice. o Code E nforcement follows-up on compliance confirmation within 30-business days. o If compliance is confinned, no action taken and case is closed. o If compliance not confinned, a Notice of Citation is issued to resident in viohtion and property manager/ owner of property of residence with details of violation. ■ Notice of Citation is an administrative citation recorded as a viohtion for the resident with an administrative fine not exceeding $200. ■ The city may, at its discretion, issue community service as an alternative to a fine. ■ Cessation resources included with Notice. o Code Enforcement follows-up on compliance confinnation within 30-business days. o If compliance is confinned, no action taken and case is closed. o If compliance not confinned, a Notice of Citation is issued to resident in violation and property manager/ owner of property of residence with details of violation. ■ Notice of Citation is an administrative citation recorded as a viohtion for the resident with an administrative fine not exceeding $500. ■ The city may, at its discretion, issue community service as an alternative to a fine. ■ Cessation resources included with Notice. ■ Administrative fees can accumulate at a rate of $500 per day, per citation, if the violation is not corrected. -i I I Any person receiving an administrative citation for violation of this article shall have the right to appeal pursuant to City's appeal process. In addition, the City Attorney may institute a civil action to ensure compliance with this Ordinance, including an action for injunctive relief and/ or to recover damages and attorney fees and costs incurred as a result of any violation. Any person may bring a civil action to enforce this Ordinance to prevent future violations and may sue to recover actual or statutory damages, including court costs, and attorney's fees. However, this Ordinance does not create a private right of action for a tenant against a landlord for any damages the tenant may suffer due to another tenant's breach of any smoking provision in a lease or other rental a reement, so lon as the landlord has full com lied with the terms of this Ordinance. Costs associated with investigating complaints can vary based on several factors such as timeliness of response of violator, correction of violation, Code Enforcement Officer salary and/ or hourly rate, etc. Based on other California cities with city-wide smoke-free multi-family policies, the enforcing agency may field 1-10 per month in the initial 6-12 month period after the policy goes into effect However, with proper education and outreach prior to the policy going into effect, and consistent education when complaints are received, that number decreases over tune. • Staff resources (number of staff, hourly wage and/ or salary, etc.) • Software for complaint tracking • Resident/Manager appeal process SMOKE-FREE MUL Tl-UNIT HOUSING POLICY IMPLEMENTATION CHECKLIST D Determine who will be carrying out implementation plan D Identify partner agencies that can help with implementation -consider one-time and ongoing budget needs □ Staffing D Overhead D Printing □ Advertising □ Signage Identify Stakeholders • Chamber of Commerce • Housing authorities/commissions/agencies with properties in the jurisdiction • Rental or Property Management Associations • Property Management Companies • Law Enforcement • Residents Identify Outreach Efforts • In-person visits to properties • Host public education workshops • Mailings Identify Media Needs • Press releases in local publications • Radio, lV, digital ads • Website • Mailers • Billboards D Draft timeline □ Draft budget Develop Message • Municipal Code • Effective date • Enforcement and compliance methods o How to make a complaint o How violations are handled • Tobacco cessation support Talking Points Identify Needed Collateral • Flyers • Banners • Letters • Content for City website • Educational Presentation deck • FAQ Property Owners, Managers and Staff Residents • Sample notification letters to be sent to residents • Information on how to file a compliant • Encourage properties to host educational workshops • Tobacco cessation resources with residents to ensure understanding of new policy, including • Sample signage and recommendations on where to print • Sample lease addendums and/or new lease agreements or CCRs • Sample warning letters 0-2022-5 ORDINANCE NO. ______ _ AN ORDINANCE ADDING CHAPTER 6.74 TO TITLE 6 OF THE ALAMEDA COUNTY ORDINANCE CODE TO PROHIBIT SMOKING IN AND AROUND MUL Tl-UNIT RESIDENCES WITHIN THE URBAN GROWTH BOUNDARY IN UNINCORPORATED AREAS OF THE COUNTY OF ALAMEDA IT IS HEREBY ORDAINED BY THE BOARD OF SUPERVISORS OF THE COUNTY OF ALAMEDA THAT THE ALAMEDA COUNTY ORDINANCE CODE IS AMENDED AS FOLLOWS: SECTION I Chapter 6. 7 4 is added to Title 6 of the General Code of the County of Alameda, to read as follows: Chapter 6.74-Prohibition on Smoking In and Around Multi-Unit Residences Section 6.74.005. Findings and Declaration The Board of Supervisors of the County of Alameda finds and declares that: A. Secondhand smoke has repeatedly been identified as a health hazard. 1. The U.S. Surgeon General concluded there is no risk-free level of exposure to secondhand smoke. 2. The California Air Resources Board categorized secondhand smoke as a toxic air contaminant, along with most toxic automotive and industrial air pollutants, for which there is no safe level of exposure. 3. The California Environmental Protection Agency (EPA) 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. 4. The American Society of Heating, ,Refrigerating, and Air Conditioning Engineers (ASHRAE) recommends that multiunit housing be free from secondhand smoke, cannabis smoke, and aerosol from electronic smoking devices. 5. The American Heart Association has recommended all adults and children be protected from smoking in multiunit housing. B. Exposure to secondhand smoke causes death and disease. 1. 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. 3. 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%. 1 SMOKE-FREE HOUSING ORDINANCE 1/11/22 4. Secondhand smoke kills more than 400 infants every year. C. Electronic smoking device aerosol may be considered a health hazard. 1. Research has found at least ten chemicals known to the State of California to cause cancer, birth defects, or other reproductive harm, such as formaldehyde, acetaldehyde, lead, nickel, and toluene. 2. 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. 3. 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 thus likely poses a risk to human health. 4. 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. 5. A number of health authorities, including the U.S. surgeon general, ASHRAE, and State of California's Tobacco Education and Research Oversight Committee (TEROC) all support inclusion of electronic smoking devices in regulations of smoking and other tobacco product use. D. Secondhand cannabis smoke is a health hazard. 1. The California EPA included cannabis smoke on the Proposition 65 list of chemicals known to the State of California to cause cancer; 2. Cannabis smoke contains at least 33 known carcinogens; 3. In one study, exposure to cannabis smoke in an unventilated setting resulted in detectible levels of cannabinoids in nonsmoker participants' blood and urine, and participants experienced minor increases in heart rate and impaired cognitive performance; and 4. 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. E. Nonsmokers who live in multiunit dwellings can be exposed to neighbors' secondhand smoke. 1. Several peer-reviewed studies on drifting secondhand smoke in multiunit housing have confirmed that secondhand smoke transfers between units, seeping into smoke-free areas from areas where smoking occurs. 2. Residents of multi unit housing have higher levels of cotinine (a biomarker for nicotine) in their blood and saliva than those living in detached houses. SMOKE-FREE HOUSING ORDINANCE 1/11/22 2 3. Twelve peer-reviewed journal articles have found that between 26% and 64% of residents of multiunit housing report secondhand smoke drifting into their home. 4. Between 44% and 46.2% of Californians living in multiunit housing with personal smoke-free home policies are exposed to secondhand smoke in their home. 5. Surveys have found that 65% to 90% of multiunit housing residents who experience secondhand smoke in their home are bothered by it. F 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. 1. Thirdhand smoke contains carcinogenic materials that accumulate over time, presenting a health hazard long after the initial smoke is gone. 2. A study found that thirdhand smoke remains months after nonsmokers have moved into units where smokers previously lived. 3. Human exposure to these thirdhand smoke carcinogens can occur through inhalation, ingestion, or skin absorption through contact with carpeting, furnishings, or clothing. 4. Thirdhand smoke potentially poses the greatest danger to infants and toddlers, who crawl on rugs and furnishings and place household items in their mouths. 5. Nonsmoking people who are exposed to thirdhand smoke have significantly higher nicotine and cotinine levels than those who have not been exposed to third hand smoke. 6. Research has shown that thirdhand smoke damages human cellular DNA. G. 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. H. Secondhand smoke exposure in multiunit housing contributes to tobacco-related health inequities. For example, in California, when compared with adults who live in single family homes, adults who live in multiunit housing are more likely to be: 1. People of color (63% of residents of multiunit homes versus 49.6% of residents of single-family homes); 2. Lower-income or below the poverty line (46.8% versus 27%); 3. Lacking a high school diploma (21.4% versus 14.8%); 4. Current smokers (17.5% versus 13.2%); 5. Uninsured (23.4% versus 14.2%). I. Secondhand smoke in multiunit housing is a significant threat to the health and safety of California children. 3 SMOKE-FREE HOUSING ORDINANCE 1/11/22 1. About a quarter of those who live in multiunit housing (25.2%) are under the age of 18. 2. The home is the primary source of secondhand smoke for children. 3. Fifty-six percent of 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. 4. Children who live in apartments have mean cotinine levels that are 45% higher than cotinine levels in children who live in detached homes. J. A majority of multiunit housing residents, including a large portion of smokers, support smoke-free policies in multiunit residences. 1. Seventy-four percent of United States adults surveyed favor smoke-free public housing. 2. Sixty-one percent of Californians surveyed favor limiting smoking inside apartment units and 69% would support limiting smoking in outdoor common areas of apartment buildings. 3. Almost three out of four (72%) Eden area residents strongly support or support a smoke-free policy for where they live. Section 6.74.010. Purpose and Intent It is the purpose and intent of the Board of Supervisors, in enacting this Chapter, to prohibit smoking in and around Multi-Unit Residences to protect the health, safety, and general welfare of residents within certain unincorporated areas of the County of Alameda. Section 6.74.020. Definitions The following capitalized words and phrases, whenever used in this Chapter, shall be construed as defined in this section: "Adjacent Unenclosed Property" means any Unenclosed Area of property, publicly or privately owned, that abuts a Multi-Unit Residence, but does not include a Lot containing a single-family home. "Cannabis" has the meaning set forth in California Business and Professions Code section 26001, as that section may be amended from time to time. "Common Area" means every Enclosed Area and every Unenclosed Area of a Multi-Unit Residence that residents of more than one Unit are entitled to enter or use, including, but not limited to, halls, pathways, lobbies, courtyards, balconies, 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. "Department" means the Planning Department of the Community Development Agency of the County of Alameda and its authorized representatives, designees, or agents. SMOKE-FREE HOUSING ORDINANCE 1/11/22 4 "Enclosed Area" means an area in which outside air cannot circulate freely to all parts of the area, and includes an area that has: A. Any type of overhead cover, whether or not that cover includes vents or other openings, and at least three (3) walls or other vertical constraints to airflow, including, but not limited to, vegetation of any height, whether or not those boundaries include vents or other openings; or B. Four (4) walls or other vertical constraints to airflow, regardless of composition, including, but not limited to, vegetation, that exceed six (6) feet in height, whether or not those boundaries include vents or other openings. "Landlord" means any Person or agent of a Person who owns, manages, or is otherwise legally responsible for a Unit in a Multi-Unit Residence that is leased to a residential tenant, except this term does not apply to a tenant who sublets their Unit. "Lot" means a separate parcel of land shown and identified as such on the records of the county recorder or on the final map of an approved and recorded subdivision. "Multi-Unit Residence" means a Lot with two or more Units, including, but not limited to, apartments, townhomes, condominium complexes, senior and assisted living facilities, and long- term health care facilities; or a Lot with a Unit attached to another Unit on an adjacent Lot, including but not limited to attached townhomes. For the purpose of determining whether a property is a Multi-Un it Residence, the following do not constitute "Units": secondary { or accessory dwelling} units, as defined by Ordinance Code section 17.04.010 (including junior accessory dwelling units); and mobilehomes in a mobilehome park, as defined by Ordinance Code section 3.32.020. "Nonsmoking Area" means any Enclosed Area or Unenclosed Area in which Smoking is prohibited by this Chapter or other law. "Person" means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity. "Smoking" means inhaling, exhaling, burning, or carrying any lighted, heated, or ignited cigar, cigarette, cigarillo, pipe, hookah, electronic smoking device, or any other device that delivers to a Person nicotine or other substances, including substances derived from Cannabis. "Smoking" includes using an electronic device that creates an aerosol or vapor, in any manner or in any form, or the use of any oral device for the purpose of circumventing the prohibition of Smoking. "Unenclosed Area" means any area that is not an Enclosed Area. "Unit" means a personal dwelling space, even one lacking cooking facilities or private plumbing facilities, and includes any associated exclusive-use Enclosed Area or Unenclosed Area, such as a private balcony, porch, deck, or patio. "Unit" includes, without limitation, an apartment unit; a condominium unit; a townhouse; a room in a senior facility; a room in a long-term health care facility, assisted living facility, or hospital; a room in a hotel or motel; a dormitory room; a room in a single-room occupancy ("SRO") facility; a room in a homeless shelter. This definition does not include a room in an unlicensed group living facility with 6 or fewer residents. This definition does not include: secondary (or accessory dwelling) units, as defined by Ordinance Code section 5 SMOKE-FREE HOUSING ORDINANCE 1/11/22 17.04.010 (including junior accessory dwelling units); and mobilehomes in a mobilehome park, as defined by Ordinance Code section 3.32.020. Section 6.74.030. Scope The requirements in this Chapter shall apply only with respect to Lots within the Urban Growth Boundary, set forth in the Alameda County General Plan. Section 6.74.040. Smoking Prohibition in Multi-Unit Residence Units Beginning July 1, 2022, Smoking is prohibited in all Units of a Multi-Unit Residence, including any associated exclusive-use Enclosed Areas or Unenclosed Areas, such as a private balcony, porch, deck, or patio. Section 6.74.050. Smoking Prohibition in Multi-Unit Residence Common Areas Except in Designated Smoking Areas A. Beginning July 1, 2022, Smoking is prohibited in Common Areas of a Multi-Unit Residence, except within a designated Smoking area meeting the following requirements: 1. The designated Smoking area is established by a Person with legal control over a Common Area, such as a Landlord or homeowners' association. 2. The designated Smoking area is: a. An Unenclosed Area; b. At least twenty-five (25) feet from Unenclosed Areas primarily used by children, Unenclosed Areas of K-12 school campuses, and Unenclosed Areas with improvements that facilitate physical activity including, for example, playgrounds, tennis courts, and swimming pools, including any accessory features (e.g., seating, water fountains} but not including parking facilities; c. At least twenty-five (25) feet from any Nonsmoking Area; d. At least twenty-five (25) feet from any doorway, window, opening, or other vent into an Enclosed Area, including an Enclosed Area not regulated by this Chapter. e. No more than ten percent (10%) of the total Unenclosed Area of the Multi-Unit Residence for which it is designated; f. Clearly marked with a perimeter; g. Identified by conspicuous signs; and h. Not within any Enclosed or Unenclosed Area where Smoking is otherwise prohibited by this Chapter or other law. B. Notwithstanding Section 6.74.050(A), on Lots one (1) acre or larger, a designated Smoking area need not comply with Section 6.74.050(A)(2}(f} and (g) (need not be clearly marked with a perimeter or identified with conspicuous signs). C. No Person with legal control over a Common Area in which Smoking is prohibited by this Chapter or other law shall permit the presence of ashtrays, ashcans, or other receptacles primarily used for disposal of Smoking waste within the area. 6 SMOKE-FREE HOUSING ORDINANCE 1/11/22 Section 6.74.060. Smoking Prohibition Within Buffer Zones A. Beginning July 1, 2022, Smoking is prohibited in Adjacent Unenclosed Property located within twenty-five (25) feet of any doorway, window, opening, or other vent into an Enclosed Area of a Multi-Unit Residence. This area shall be known as a "Buffer Zone." B. Section 6.74.060(A) above does not apply to a Person who is Smoking in a Buffer Zone while actively passing on the way to another destination where Smoking is permitted. Section 6.74.070. Responsibility of Persons with Legal Control of Nonsmoking Areas No Person with legal control over any Nonsmoking Area, including property owners, tenants, and subtenants, shall permit or suffer Smoking in a Nonsmoking Area in violation of this Chapter. For property subject to a lease agreement, a Landlord shall not be held responsible, and will not be liable, for a tenant's violation of this Chapter. Section 6.74.080. Notice and Signage Requirements A. No later than June 1, 2022, every Landlord or Person responsible for establishing rules in a Multi-Unit Residence shall deliver to each Unit of a Multi-Unit Residence a written notice meeting the requirements of Section 6.74.080(D). B. Beginning June 1, 2022, prior to the signing of a lease agreement every Landlord shall provide prospective tenants written notice meeting the requirements of Section 6.74.080(0). C. Beginning June 1, 2022, prior to any sale every seller of a Multi-Unit Residence or Unit within shall provide the buyer a written notice meeting the requirements of Section 6.74.080(0). D. Written notice must provide the following information: 1. Beginning July 1, 2022, Smoking is prohibited in all Units, including any associated exclusive-use Enclosed Area or Unenclosed Area, such as a private balcony, porch, deck, or patio; and 2. Beginning July 1, 2022, Smoking is prohibited in all Common Areas except within specifically designated Smoking areas, if applicable. E. Beginning July 1, 2022, Persons with legal control over Common Areas shall post and maintain clear and unambiguous "No Smoking" signs in sufficient numbers and locations in Common Areas where Smoking is prohibited by this Chapter or other law. Section 6.74.090. Exception for Drug, Device, or Combination Product Authorized by United States Food and Drug Administration Notwithstanding any provision to the contrary, nothing in this Chapter shall be interpreted to restrict or otherwise regulate the use of a drug, device, or combination product authorized for sale by the United States Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act. This exception does not apply to tobacco products regulated by the United States Food and Drug Administration. SMOKE-FREE HOUSING ORDINANCE 1/11/22 7 Section 6. 7 4.100. Public Health Department Education A. The Public Health Department shall educate community members about the requirements in this Chapter. B. The Public Health Department shall establish and implement a process for issuing warnings. Each warning shall be accompanied by educational materials explaining the requirements of this Chapter. Section 6.74.110. Administrative Enforcement A. Upon a finding that a Person has violated any provision of this Chapter, the enforcement officer designated by the Department shall give written notice of the violation to the Person in possession of the Unit; or to an owner, Landlord, or homeowners' association for a violation of Sections 6.74.080. Such notice shall be provided in person or by pre-paid certified mail, return receipt requested and shall include a copy of this Chapter and a statement describing the section(s) found to be violated. B. The enforcement officer designated by the Department may impose the following administrative penalties, which penalties may be assessed at the time of the notice of violation: 1. A $100 (one hundred dollars) fine upon a finding of a first violation of this Chapter within any three-year period. 2. A $200 (two hundred dollars) fine upon a finding of a second violation of this Chapter within any three-year period. 3. A $500 (five hundred dollars) fine upon a finding of a third or subsequent violation of this Chapter within any three-year period. C. The Department shall not issue any written notice of violation for or impose any administrative penalties upon a Person unless the Public Health Department has issued at least three warnings to the Person. D. Penalties must be paid directly to the County to the address indicated in the notice. Unpaid penalties may be collected via the County's central collections agency or may be added to the lien on the subject property under the process set forth in Chapter 6.65. E. Any Person receiving an administrative penalty under this section may appeal the violation to the Planning Director within 10 (ten) calendar days of the date the notice of penalty is sent to the Person. The appeal must contain: 1. Specific identification of the address of the Multi-Unit Residence; 2. The names and addresses of all appellants, including unit number, if any; 3. A statement of the appellant's relationship to the property at issue (e.g., tenant, owner); SMOKE-FREE HOUSING ORDINANCE 1/11/22 8 4. A statement in ordinary and concise language of the grounds for appeal, stating the facts supporting appellant's contention that they did not violate this Chapter or that the violation has been corrected; 5. If the appellant is seeking a hearing before the Planning Director, a statement that a hearing is requested; 6. The date and signatures of all appellants; and 7. The verification (by declaration under penalty of perjury) of at least one appellant as to the truth of the matters stated in the appeal. F. Late appeals and appeals based on financial hardship will not be considered. G. The Planning Director will consider the appellant's written appeal and will issue a decision based on the written appeal unless the appellant requests a hearing. 1. If the Planning Director determines, based on the facts in the record, that the appellant violated this Chapter, the Planning Director shall uphold the declaration of violation, unless the appellant presents clear and convincing evidence that the violation has been corrected. If the Planning Director upholds the appeal, the notice of violation and administrative penalty will be rescinded. 2. The Planning Director's decision shall be in writing. The decision will be provided in person or by pre-paid certified mail, return receipt requested. The decision shall be final. H. Planning Director appeal hearings shall not be conducted unless timely requested by the appellant and shall follow the following procedures. 1. The Planning Director shall set the matter for hearing at least 10 (ten) and not more than 60 (sixty) days from the date of the appeal. The Planning Director may hear additional evidence and may sustain, modify, or overrule the finding of violation. 2. All hearings shall be electronically tape recorded. 3. Hearings need not be conducted according to the California Code of Evidence. 4. Any relevant evidence shall be admitted if it is the type of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions in courts of competent jurisdiction in the state. 5. Irrelevant and unduly repetitious evidence shall be excluded. I. An appellant whose appeal is denied may seek review by filing an appeal to be heard by the superior court under Government Code section 53069.4. Such appeal must be filed within 20 days after service of the final decision. Section 6.74.120. Enforcement SMOKE-FREE HOUSING ORDINANCE 1/11/22 9 A. The remedies provided by this Chapter are cumulative and in addition to any other remedies available at law or in equity. B. Violations of this Chapter are subject to a civil action brought by the District Attorney, punishable by a civil fine not less than two hundred fifty dollars ($250) and not exceeding one thousand dollars ($1 ,000) per violation. C. Causing, permitting, aiding, abetting, or concealing a violation of any provision of this Chapter shall also constitute a violation of this Chapter and shall be subject to enforcement as described in Section 6.74.110. D. In addition to other remedies provided by this Chapter or by other law, any violation of this Chapter may be remedied by a civil action brought by the County, including, for example, civil or criminal Code enforcement proceedings, and suits for injunctive relief. Section 6.74.130. Termination of Tenancy; Requirements No Landlord may terminate a tenancy for a Multi-Unit Residence regulated by this Chapter on the basis of a tenant's violation of this Chapter unless the Department has issued at least three written notices of violation to the tenant. Section 6.74.140. Authority to Adopt Regulations to Implement this Chapter A. The Department may adopt rules and regulations that are necessary or appropriate to implement, administer, and enforce the provisions of this Chapter. Section 6. 7 4.150. Severability A. 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 Board of Supervisors 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, subsections, subdivisions, paragraphs, sentences, clauses or phrases hereof be declared invalid or unenforceable. SMOKE-FREE HOUSING ORDINANCE 1/11/22 10 SECTION II A. This ordinance shall take effect thirty {30) days from and after the date of passage. B. Before the expiration of fifteen (15) days after its passage, it shall be published once with the names of the members voting for and against the same in the Inter-City Express, a newspaper published in the County of Alameda. SMOKE-FREE HOUSING ORDINANCE 1/11/22 11 . . . January Adopted by the Board of Supervisors of the County of Alameda, State of California, on __ _ 25, 2022 , by the following called vote: AYES: Supervisors Brown, Haubert, Miley, Valle and President Carson - 5 None NOES: None EXCUSED: ATTEST: Clerk of the Board of Supervisors County of Alameda Keith Carson Keith Carson President of the Board of Supervisors County of Alameda, State of California Cheryl Perkins By: _____________ _ APPROVED AS TO FORM: DONNA R. ZIEGLER, COUNTY COUNSEL County of Alameda G ........ ~, By: ~~3L~bl3\. .. Raymond Leung, Deputy County Counsel SMOKE-FREE HOUSING ORDINANCE 1/11/22 12 A PUBLIC HEALTH ~LAWCENTER at Mitchell Hamlin• School of Law / ,=American Lung Association. California / ,,,,2021 Law and Policy Partnership to End the Commercial Tobacco Epidemic CANNABIS SMOKING in Multi-Unit Housing ,,,,,,,,,, Under California law, it is illegal to smoke cannabis in public places, including anywhere that smoking tobacco1 is prohibited.2 In many communities throughout the state, however, as in the growing number of states that legalize medical and recreational cannabis, questions continue to arise about the smoking of cannabis in multi-unit housing. This fact sheet answers common questions for California property owners and tenants about the possible health risks of cannabis smoke, the "right" to smoke cannabis, various options for regulating the smoking and vaping of cannabis in multi-unit residences, and similarities between smoke-free tobacco and cannabis policies. ,11.:....;;;;====================================:::::::::===========================i www.publichealthlaw center.org/caltobacco ~ PUBLIC HEALTH ~LAW CENTER •t Mltch•II H•mlin♦ Sehool of Uw TAmerican Lung Association. California .,., Q: What are the health risks of secondhand cannabis smoke? A : Limited research has been done on the risks of exposure to secondhand cannabis smoke, in contrast to the decades of scientific studies on secondhand tobacco smoke.3 Recent studies, however, have shown that emissions from burning cannabis and tobacco cigarettes contain many of the same toxins, irritants, and carcinogens.4 Among the thirty-three known carcinogens present in cannabis smoke are acetaldehyde, arsenic, benzene, chromium, formaldehyde, isoprene, lead, mercury, nickel, and quinoline.5 As most Californians have learned in recent years, smoke inhalation is a health risk, whether from a cigarette, a joint, a campfire, or a wildfire. Both tobacco and cannabis smoke contain inhalable airborne particles that can cause respiratory symptoms, such as coughing, phlegm, and wheezing and can exacerbate health problems, especially for people with respiratory conditions such as asthma, bronchitis, and chronic obstructive pulmonary disease.6 Secondhand smoke exposure and particulate inhalation also increases the risk of coronary heart disease7 and stroke.8 Moreover, heavy exposure to cannabis smoke can result in measurable concentrations of THC (the ingredient that produces cannabis's psychoactive effect) in nonusers' blood serum and urine.9 Exposure to cannabis smoke in an unventilated setting has caused participants to experience minor increases in heart rate and impaired cognitive performance.10 Also, a 2016 study in rats found that secondhand exposure to cannabis smoke affected a measure of blood vessel function as much as secondhand tobacco smoke and had longer lasting effects.11 Although this research has not yet been conducted with humans, the toxins and other substances present in cannabis smoke raise troubling questions about the impact of secondhand smoke exposure on vulnerable individuals, such as infants, children, and anyone with a serious lung condition.12 The California Environmental Protection Agency includes cannabis smoke on the Proposition 65 list of chemica ls known to cause cancer and reproductive/developmental toxicity.13 Also, as an indication of concern about the health risks of exposure to cannabis smoke, the American Society of Heating, Refrigerating, and Air Conditioning Engineers (ASH RAE) includes cannabis smoke (as well as emissions from electronic smoking devices) in its definition of "environmental tobacco smoke."14 ASHRAE's national air standards have long been cited by tobacco control advocates, along with the Society's position that the only way to effectively eliminate the health risks posed by indoor exposure to secondhand smoke is to prohibit smoking. July 2021 www.publichealthlawcenter.org/caltobacco Regulating Cannabis Smoking in Multi-Unit Housing 2 ~ PUBLIC HEALTH ~LAWCENTER at Mltch•II Hamllne Sc.hoot of Uw / TAmerican Lung Association. Califomia ""'""' Q: Do California tenants have the right to smoke cannabis in multi-unit apartment buildings? A: Although California has legalized the adult use of recreational cannabis, there is no absolute right to smoke cannabis anywhere, just as there is no constitutional right to smoke tobacco, particularly when smoking impacts others.15 Secondhand smoke, whether from combustible or aerosolized tobacco (e.g., e-cigarettes) or cannabis or cannabis products, can seep throughout multi-unit buildings from areas where smoking occurs, via ventilation systems, plumbing, or electrical lines.16 Secondhand smoke can easily spread throughout a multi-unit building, compromising the health of all exposed to it. According to one U.S. study, 50 percent of residents in ostensibly smoke-free multi-unit buildings still experienced smoke entering into their units from adjacent units.17 ""'""' Q: Who has legal authority under California law to require that a multi-unit property be smoke-free? A: Under California law, landlords and multi-unit residential property owners have the legal authority to make their properties smoke-free.18 This includes prohibiting the smoking or vaping of recreational or medical cannabis in individual units and common areas.19 Also, if a complex includes a playground or tot lot sandbox area, the landlord is required by law to prohibit smoking within 25 feet of the area.20 July 2021 www.publichealthlawcenter.org/caltobacco Regulating Cannabis Smoking in Multi-Unit Housing 3 / TAmerican Lung Association. California Local governments also have legal authority to enact smoke-free legislation that includes the smoking or vaping of cannabis. As of April 2021, sixty-five California cities and counties have enacted laws that prohibit smoking in private units of multi-unit housing properties.21 A growing number of these smoke-free laws include the smoking or vaping of cannabis.22 ,,,, Q: What are the benefits of a smoke-free multi-unit housing policy that prohibits the smoking or vaping of cannabis? A: A multi-unit housing policy that allows the smoking and vaping of tobacco and cannabis products can result in high maintenance and turnover costs, due to the need to clean, renovate, and refurbish units where heavy smoking has occurred. At a time of housing scarcity in California, a smoke-free policy can help property managers prevent complexes from deteriorating and prolong the viability of as many units as possible. Smoking or vaping in residences also raises the risk of fires. Cigarettes have long been a leading cause of residential fire deaths, and fires caused by cigarette smoking result in over $300 million in property loss each year.23 For example, in California the July 2020 Clay Fire, which burned 730 acres and required the efforts of eight fire departments (and numerous agencies and power companies) to manage, was ignited by a cigarette butt.* Limited research is available on the smoldering and burning properties of cannabis cigarettes.24 Cannabis, however, is commonly vaped via a variety of electronic devices, which on occasion have exploded and caused injury and death, as well as fire.25 Finally, allowing the smoking or vaping of cannabis on the premises could generate resident complaints due to drifting smoke or aerosol and even lead to Fair Housing Act complaints or lawsuits.26 In contrast, a smoke-free housing policy creates a healthier indoor environment, reduces turnover costs, lowers the risk of litigation, decreases the likelihood of fire, and helps meet the needs and preferences of most residents.27 Also, some property insurance companies offer a discount for buildings that have a smoke-free policy. ,,,, Q: What can California tenants do if a neighbor in their multi-unit complex smokes cannabis? A: Tenants have the right to breathe clean air and not be exposed to secondhand smoke in their own home. The Law and Policy Partnership to End the Commercial Tobacco Epidemic has released a Tenant Guide to Addressing Secondhand Smoke (including cannabis smoking or vaping) for California cities and count ies.28 The guide is designed to help California tenants understand options available to them when they experience any type of secondhand smoke * Cal Fire, Clay Fire (July 30, 2020), https://www.fire.ca.gov/incidents/2020/7/29/clay-fire. July 2021 I .I.All ____________________________________ _ www.p u bl ic health I awcenter.org/ caltobacco Regulating Cannabis Smoking in Multi-Unit Housing 4 f American Lung Association. California in multi-unit housing. The resource is organized roughly in the order that options should be considered, with litigation included only as a last resort. ,., Q: Can California tenants in apartment buildings who are registered users of medical cannabis claim they can smoke or vape medically prescribed cannabis in their units because they are disabled and entitled to rights as a protected class under the Americans with Disabilities Act? What about the claim that they are entitled to "reasonable accommodations" under the federal Fair Housing Act?29 A: This is an interesting question. The Fair Housing Act prohibits discrimination in housing on the basis of race, color, religion, sex, national origin, familial status, and disability.30 For example, the Act requires housing providers to make "reasonable accommodations"31 in rules, policies, practices, or services when necessary to give a disabled person an equal opportunity to use and enjoy a dwelling unit or common space.32 Under the Fair Housing Act, individuals are disabled if they have a physical or mental impairment that substantially limits one or more major life activities, have a record of such impairment, or are regarded as having an impairment.33 Many individuals authorized to use medical cannabis would likely qualify as disabled under this definition. July 2021 www.publichealthlawcenter.org/caltobacco Regulating Cannabis Smoking in Multi-Unit Housing 5 l!ltJ. PUBLIC HEALTH ~ LAW CENTER •l Ml1c.h411 t4olmlln• School or t.lW / T American Lung Association. California The Fair Housing Act, however, states that a handicap "does not include current, illegal use of or addiction to a controlled substance"34 as defined in the federal Controlled Substances Act.35 Although several states have passed laws legalizing its sale and use, cannabis continues to be categorized as a Schedule 1 drug under federal law (that is, a drug with high potential for abuse with no currently accepted medical use in treatment in the U.S.).36 Thus, it remains a federal offense to possess or use cannabis.37 Because federal law supersedes state law, questions have naturally arisen about federal preemption of these state cannabis laws. In 2013, in an attempt to clarify the federal position on the enforcement of cannabis laws, the U.S. Department of Justice announced that the administration would not prosecute individuals or organizations engaged in cannabis activities that are conducted in clear compliance with state and local narcotics laws that permit and regulate these activities.38 This continues to be the federal stance in the Biden administration. Thus, even though the Fair Housing Act requires housing providers to make reasonable accommodations for persons with disabilities, cannabis's current status as a Schedule 1 drug makes it unclear whether such a case brought under this federal civil rights law would succeed.39 One note: As mentioned above, secondhand smoke poses health risks -especially to vulnerable individuals -and can exacerbate existing disabilities in other tenants. This, in turn, could defeat the purpose of the ADA when applied to medical cannabis use in multi-unit buildings . .,., Q: If a multi-unit property owner would like to adopt a policy that prohibits residents from smoking cannabis in their residences, what other grounds could be used as a basis for t he policy? A: Depending on the jurisdiction, and whether a smoke-free law at the local level has declared secondhand smoke to be a "nuisance," the housing association might be able to prohibit or otherwise restrict the smoking of cannabis on the property on the ground that it is a nuisance40 or violates the rental property's "warranty of habitability.''41 .,., Q: What steps should landlords or multi-unit property owners take if they want to prohibit the smoking of cannabis in their residences? A: First, landlords and property owners should be aware of (or consult an attorney familiar with) laws regarding cannabis use in their jurisdiction. These laws vary in California cities and counties, particularly regarding cannabis use in multi-unit housing.42 Next, landlords and property owners should include language regarding the smoking of cannabis in their lease or rental agreements. These provisions should clearly and explicitly July 2021 www.publichealthlawcenter.org/caltobacco Regulating Cannabis Smoking in Multi-Unit Housing 6 ~ PUBLIC HEALTH ~LAW CENTER •t Mltch•II H11mlln. S.C.hoor of bw / T American / Lung Association. / California specify the type of cannabis use prohibited on the property, premises covered by the policy (inside and outside), and the consequences of lease violations. The Law and Policy Partnership to End the Commercial Tobacco Epidemic has released a Smoke-Free Multi-Unit Housing Model Ordinance for California cities and counties that can be easily adapted to include the smoking or vaping of cannabis.43 ,,,, Q: If a landlord or owner of a market rate property grants a tenant's request to use medical cannabis on the premises, does that mean that other residents run the risk of being exposed to cannabis smoke? A : A "reasonable accommodation" should not result in the potential exposure of others to secondhand cannabis smoke.44 Several methods for ingesting medical cannabis -such as extracts, tinctures, oils, ed ibles, pills, and cannabis inhalers -would not expose other residents to cannabis smoke.45 Although each individual's medical situation is different and some methods of ingesting cannabis might not have the same effect as smoking cannabis, a middle ground might be reached for many cannabis users, in concert with advice from the referring physician. Note that these methods of consumption are also available for recreational cannabis. ,,,, Q: Can public housing authorities prohibit the smoking of cannabis in federally subsidized housing? A : Yes. Secondhand smoke, whether from tobacco or cannabis products, spreads throughout multi-unit dwellings. Public and other subsidized housing owners have the same rights as owners of non-public housing to adopt smoke-free policies.46 These smoke-free policies may include a prohibition on smoking of medical, as well as recreational, cannabis. Moreover, the U.S. Department of Housing & Urban Development (HUD) explicitly states that if applicants for public or Section 8 housing are known users of cannabis (medical or otherwise), their applications must be denied.47 Also, if current residents request a reasonable accommodation to allow them to use medical cannabis in their unit, the request must be denied, as that may set an expectation that all residents in similar situations could expect an accommodation.48 In a memo released January 20, 2011, HUD clarified that the Public Housing Reform Act allows (but does not compel) public housing authorities to terminate assistance for existing residents if they use a controlled substance.49 Public housing authorities have discretion to determine those policies deemed most appropriate for their local communities, including denying assistance or terminating individual medical cannabis users, rather than entire households, for July 2021 www.publichealthlawcenter.org/caltobacco Regulating Cannabis Smoking in Multi-Unit Housing 7 ~ PUBLIC HEALTH ~LAW CENTER at Mitch.ti H•mlln• School of L•w TAmerican Lung Association. Califom,a both applicants and existing residents. The U.S. Food and Drug Administration has approved for medicinal use drugs comprised of cannabis derivatives and synthetics (such as Epidiolex, Marino!, and Cesament), which are not medical cannabis or Schedule 1 drugs, and are thus allowed in public housing and voucher programs.50 ,,,, Q: Doesn't HU D's smoke-free rule prohibit the use of cannabis by residents in public housing? A: No. HUD requires that public housing agencies prohibit the use of tobacco products in all indoor areas. This smoke-free requirement, which took effect July 31, 2018, applies to all public housing, but does not include all federally subsidized housing, such as dwelling units in mixed-finance buildings or privately owned dwellings financed under Section 8 of the Housing Act. The rule covers combustible tobacco products, such as cigarettes, cigars, and pipes, as well as hookahs, but does not include e-cigarettes or similar devices, or the smoking or vaping of cannabis. Property managers can opt to apply their facility smoke-free standards to e-cigarettes and other products not covered by the HUD standard. Because cannabis is a federally prohibited substance, the use and possession of this drug is already prohibited on HUD-funded (and other federal) properties, regardless of HU D's smoke- free law. Federal law preempts state law, including in those states where the use of medical or recreational cannabis is now legal. ,,,, Q: Can public housing agencies evict residents who use medical cannabis? A: Yes, it is within their discretion to do this, but it should be considered only as a last resort after other alternatives have proved unsuccessful.51 Ironically, the same smoke-free policies that are in place to protect residents and improve their housing stability are policies that, when enforced, may put another resident's housing stability in jeopardy because of possible penalties or eviction.52 The impact of eviction upon an individual and family can be devastating and this measure should be avoided if at all possible. A structure of graduated penalties helps ensure better compliance with a smoke-free policy by providing multiple steps for enforcement and giving residents the opportunity to change their behavior before infractions rise to the level of lease termination.53 HUD's 2011 memo mentioned above stated that residents who revealed cannabis use on their public housing applications would be denied admission to Public Housing or Housing Choice Voucher programs, regardless of their circumstances, since cannabis is a controlled substance.54 However, the memo also gave public housing authorities (and, most often, July 2021 www.publichealthtawcenter.org/caltobacco Regulating Cannabis Smoking in Multi-Unit Housing 8 ~ PUBLIC HEALTH ~LAW CENTER at Mltc.h•II H•mllrt• Schoo1 ot Law / t American Lung Association. California individual landlords) the right to use their discretion on how to execute medical cannabis lease provisions. Housing authorities will need to conduct individual assessments of each individual request, focusing on the right of all tenants to have equal access to safe and clean air. Also, as noted earlier, not only are several FDA-approved cannabis synthetics and derivatives avai lable, but medical cannabis users can ingest the drug in a variety of ways that do not result in secondhand smoke exposure of fellow tenants. ,,,, Q: What are some basic guidelines for multi-unit residential property owners and housing authorities who would like to prohibit or restrict the smoking or vaping of cannabis on their property? A : Property owners and housing agencies need to clearly communicate their cannabis-related policies to all residents, housing applicants, and visitors. They can do this by updating their established occupancy standards and lease provisions, and providing handouts to tenants, prospective tenants, or visitors. Below are a few basic considerations to keep in mind when implementing any smoke-free policy. • Clearly define "smoking," vaping, and related terms in any lease and rental agreements in buildings designated as No-Smoking or Non-Smoking. If a property's smoke-free (or tobacco-free) policy covers the smoking and vaping of cannabis, be explicit about what that entails and what areas are included (for example, indoor common areas and residential units). Other areas covered under such a policy could include outside premises, such as walkways, parking lots, balconies, porches, patios or decks of individual units, and areas near doorways, windows, and air vents. • Explain the policy's rationale. Make sure that residents, guests, employees, and others associated with a multi-unit property understand the health risks related to smoking, vaping, and exposure to secondhand smoke and aerosol. • Apply the smoke-free policy uniformly to all residents, guests, and employees. • Ensure that an effective enforcement plan is in place that describes the process for handling violations. (The Partnership's model ordinance does not include criminal sanctions for those who smoke, and focuses primary responsibility for enforcement on landlords by holding them accountable with appropriate civil penalties if they allow smoking or otherwise violate the local ordinance.) • Prepare tenants and staff for implementation of the policy by providing, for example, announcements, educational material or presentations, staff training, and signage. July 2021 www.publichealthlawcenter.org/caltobacco Regulating Cannabis Smoking in Multi-Unit Housing 9 l!1t.. PUBLIC HEALTH ~LAW CENTER at Mitd1•II Hamlln• School of l~w TAmerican Lung Association. Cal~omla 1 1 Q: Where can I get additional information about issues related to smoking or vaping cannabis and parallels between cannabis regulation and tobacco control policies? A : In addition to the Law and Policy Partnership to End the Commercial Tobacco Epidemic's tobacco-free housing resources, the Public Health Law Center's web page contains several publications and resources on smoke-free housing, including resources that discuss concepts related to condominiums, apartments and other multi-unit dwellings, affordable housing, and smoke-free housing disclosure policies. Many of these materials may be relevant for those seeking to regulate the use of cannabis products. Cannabis-specific legal resources include the Center's policy briefs, Toking, Smoking, & Public Health: Lessons from Tobacco Control for Marijuana Regulation (2018) and There is No Constitutional Right to Smoke or Toke (2019), and several archived webinars. Also, the American Nonsmokers' Rights Foundation's website has several resources related to secondhand tobacco and cannabis smoke, including regularly updated maps of state and local laws prohibiting the smoking and vaping of cannabis. For more information about California's cannabis-related laws and policies, as well as a wealth of state-specific cannabis resources, check out the California Cannabis Portal. This publication was prepared by the American Lung Association in California and 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 case study was made possible by funds received from Grant Number 19-10229 with the California Department of Public Health, California Tobacco Control Program, and the American Lung Association in California. Endnotes The Public Health Law Center recognizes that traditional and commercial tobacco are different in the ways they are planted, grown, harvested, and used. Traditional tobacco is and has been used in sacred ways by Indigenous communi- ties and tribes for centuries. Comparatively, commercial tobacco is manufactured with chemical additives for recre- ational use and profit, resulting in disease and death. For more information, visit: http://www.keepitsacred.itcmi.org. When the word "tobacco" is used throughout this document, a commercial context is implied and intended. 2 Cal. Health Safety Code§ 11362.3(a)(2), https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?section- Num=ll362.3.&lawCode=HSC. Note that Section 11362.1 does permit the smoking or ingesting of cannabis or cannabis products in a public place if it is in accordance with Section 26200 of the Business and Professions Code. This would include, for example, smoking cannabis at temporary events or on the premises of a licensed retailer or micro business, if all specified requirements are met. https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=BP- C&division=10 .&title=&part=&chapter=20.&article= 3 See, e.g., Matthew Springer and Stanton Glantz, Marijuana Use and Heart Disease: Potential Effects of Public Exposure to Smoke (April 22, 2015), https://tobacco.ucsf.edu/marijuana-use-and-heart-disease-potential-effects-public-exposure-smoke . July 2021 .I.la'...-__________________________________________ ~ www.publichealthlawcenter.org/caltobacco Regulating Cannabis Smoking in Multi-Unit Housing 10 ~ PUBLIC HEALTH ~LAWCENTER at Mitch•II Hamlin• .School Qf Law / TAmerican Lung Association. / Califomia 4 See, e.g., UCLA, Secondhand Marijuana Smoke: What are the Risks to Your Health? (2020), https://connect.uclahealth. org/2020/10/29/secondhand-marijuana-smoke-what-are-the-risks-to-your-health. 5 Reproductive and Cancer Hazard Assessment Branch, Office of Environmental Health Hazard Assessment, California Environmental Protection Agency, Evidence on the Carcinogenicity of Cannabis Smoke (2015), http://oehha.ca.gov/ prop65/hazard_ident/pdf_zip/FinalMJsmokeHID.pdf. 6 See, e.g., Hannah Holitzki et al., Health Effects of Exposure to Second-and Third-hand Cannabis Smoke: A Systemotic Review, 5 CAN. Mm. Ass'N J., E814-E822 (2017), https://www.ncbi.nlm.nih.gov/pmc/artic1es/PMC5741419; Nat'I Inst. Drug Abuse, What Are the Effects of Secondhand Exposure to Cannabis Smoke (2020), https://www.drugabuse.gov/publica- tions/research-reports/cannabis/what-are-effects-secondhand-exposure-to-cannabis-smoke; Americans for Non- smokers Rights, Secondhand Cannabis Smoke (2021), https://no-smoke.org/secondhand-cannabis-smoke-fact-sheet. 7 See, e.g., Joaquin Barnoya & Stanton Glantz, Cardiovascular Effects of Secondhand Smoke, 111 CIRCULATION 2684-98 (2005), https://www.ahajournals.org/doi/full/10.1161/CIRCULATIONAHA.104.492215. 8 See, e.g., Angela Malek et al., Secondhand Smoke Exposure and Stroke: The Reasons for Geographic and Racial Differences in Stroke (REGARDS) Study, 49 AM J. PREV. Mm e89-e97 (2015), https://www.ncbi.nlm.nih.gov/pmc/artic1es/PMC4656115. 9 Rosalie Liccardo Pacula et al., Developing Public Health Regulations for Cannabis: Lessons from Alcohol and Tobacco, 104 AM. J. Pus. HEALTH 1021, 1024 (2014). 10 Evan S. Herrmann et al., Non-Smoker Exposure to Secondhand Cannabis Smoke II: Effect of Room Ventilation on the Physio- logical, Subjective, and Behavioral/Cognitive Effects, 151 DRUG ALCOHOL DEPEND. 194-202 (2015), https://www.ncbi.nlm. nih.gov/pmc/articles/PMC4747424. 11 Xiaoyin Wang et al., One Minute of Marijuana Secondhand Smoke Exposure Substantially Impairs Vascular Endothelial Func- tion, 5 J. AM. HEART Assoc. e03858 (2016), https://www.ncbi.nlm.nih.gov/pmc/artic1es/PMC50l5303. 12 See id. 13 Cal. Office of Env'I Health Hazard Assessment, Cannabis (Marijuana) Smoke (2009, 2020), https://oehha.ca.gov/propo- sition-65/chemicals/cannabis-marijuana-smoke. 14 American Society of Heating, Refrigerating, and Air Conditioning Engineers, Standards for Ventilation and Indoor Air Quality -Standards 62.1-62.2 (2016). 15 Public Health Law Center, There is No Constitutional Right to Smoke or Toke (2019), https://www.publichealthlawcenter. org/sites/default/files/resources/No-Constitutional-Right-Smoke-Toke-2019.pdf. Note that although Alaska has a privacy right that covers the consumption of cannabis in the home. this does not mean Alaskans have a right to expose fellow tenants to secondhand smoke. Id. at 12-13. 16 Ctrs. for Disease Control and Prevention, Going Smokefree Matters: Multiunit Housing (2020), https://www.cdc.gov/ tobacco/basic_information/secondhand smoke/going-smokefree-matters/multi-unit. 17 Andrea S. Gentzke et al., Attitudes and Experiences with Secondhand Smoke and Smoke-Free Policies Among Subsidized and Market-Rate Multiunit Housing Residents Living in Six Diverse Communities in the USA, 27 TosAcco CONTROL 194, 194 (2018). 18 Cal. Civ. Code §1947.5, https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV§ion- Num=l 947.5. 19 Clifford E. Douglas, Smoke-free Environments Law Project, Restricting the Use of Medical Cannabis in Multi-Unit Residen- tial Settings: Legal and Practical Considerations (2010), http://www.mismokefreeapartment.org/MManalysis.pdf. 20 Cal. Health and Safety Code § 104495. 21 American Nonsmokers' Rights Foundation, U.S. Laws for 100% Smokefree Multi-Unit Housing (2021). https://no-smoke. org/wp-content/uploads/pdf/smokefreemuh.pdf. Most of these laws -56 municipalities -apply to properties with two or more units. July 2021 www.publichealthlawcenter.org/caltobacco Regulating Cannabis Smoking in Multi-Unit Housing 11 l!Jt.. PU BLIC HEALTH ~LAWCENTER el Mitchell Hamlil'I♦ School of Law / / TAmerican Lung Association. Califomfa 22 See, e.g., Santa Clara Ordinance 2029 (2021), Smokefree Santa Clara I City of Santa Clara (santaclaraca.gov); Palo Alto Municipal Code 9.1 (2021), https://codelibrary.amlegal.com/codes/paloalto/latest/paloalto ca/0-0-0-6175; Mountain View, Kevin Forestieri, Mountain View Bans Smoking in Multifamily Residences, Including Common Areas and Inside Areas, MOUNTAIN View VOICE (May 26, 2021), https://www.mv-voice.com/news/2021/05/26/mountain-view-bans-smoking- in-multi-family-residences-including-common-areas-and-inside-units. 23 Brian King et al., National and State Cost Savings Associated with Prohibiting Smoking in Subsidized and Public Housing in the United States, 11 PREV CHRONIC D1SEASE 40222 (2014), https://www.cdc.gov/pcd/issues/2014/14 0222.htm. 24 See, e.g., Maryanne Fakeh Campbell et al., E-cigarette Environmental and Fire/Life Safety Risks in Schools Reported by Secondary School Teachers, 20 BMC Pusuc HEALTH 1215 (2020), https://bmcpublichealth.biomedcentral.com/arti- c les/10.1186/s 12889-020-09319-8. 25 See Americans for Nonsmokers' Rights Foundation, E-cigarette Explosions and Fires (2021), https://no-smoke.org/ wp-content/uploads/pdf/E-Cigarette-Explosions-and-Fires.pdf 26 See, e.g., 42 U.S.C. § 3601 et seq. 27 M ichael Ong et al., Estimates of Smoking Related Property Costs in California Multiunit Housing, 102 AM. J PUBLIC HEALTH 90-93 (2012), https://www.ncbi.nlm.nih.gov/pmc/artic1es/PMC3487653. 28 See Public Health Law Center, Tenant Guide to Addressing Secondhand Smoke (2020), https://www.publichealthlawcen- ter.org/sites/default/files/resources/Tenants-Rights-Guide.pdf. 29 See generally Public Health Law Center, Smoke-free Public Housing: Reasonable Accommodations (2021), https://www. pub I ich ea Ith la ween t e r.org/s it e s/d efa ult/files/resources/Smoke-Free-Pub Ii c-Hou sing-Reasonable-Aecom m odati on s. pd f. 30 Id. Note that Title II of the Americans with Disabilities Act also ensures that individuals with disabilities have equal access to fair housing. 42 U.S.C. §§ 3604; 12102. 31 See generally U.S. Dep't of Housing and Urban Development, People with Disabilities web page (HUD.Gov), http://portal. hud.gov/hudportal/HUD?src=/program offices/fair housing equal_opp/disabilities/sect504faq#anchor257647; see also U.S. Dep't of Justice & U.S. Dep't of Housing and Urban Development, Reasonable Accommodations under the Fair Hous- ing Act (May 5, 2008) (Joint Statement), https://www.hud.gov/sites/dfiles/FHEO/documents/huddojstatement.pdf. 32 42 U.5.C. § 3602 (h). 33 42 U.5.C. § 3602 (h); see also Douglas, supra note 18, at 4. 34 42 U.5.C. § 3602 (h). 35 21 u.sc. § 802. 36 id. 37 See 21 U.S.C. §§ 841(a)(l); 844(a); 812(b)(1)(A)-(C). 38 U.S. Dep't of Justice, Guidance Regarding Cannabis Enforcement (Aug. 29, 2013), http://www.justice.gov/iso/opa/re- sources/3052013829132756857467.pdf. The U.S. Department of Justice's priorities are: "Preventing the distribution of cannabis to minors; preventing revenue from the sale of cannabis from going to criminal enterprises, gangs, and cartels; preventing the diversion of cannabis from states where it is legal under state law in some form to other states; prevent- ing state-authorized cannabis activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity; preventing violence and the use of firearms in the cultivation and distribution of cannabis; prevent- ing drugged driving and the exacerbation of other adverse public health consequences associated with cannabis use; preventing the growing of cannabis on public lands and the attendant public safety and environmental dangers posed by cannabis production on public lands; and preventing cannabis possession or use on federal property." Id. at 1-2. July 2021 www.publichealthlawcenter.org/caltobacco Regulating Cannabis Smoking in Multi-Unit Housing 12 ~ PUBLIC HEALTH ~ LAW CENTER at Mitchell H•mlln• Scho<M of Law / TAmerican Lung Association. Calitomia 39 See Douglas, supra note 19, at 4. 40 Pot May be Legal in Some States -But the Neighbors Don't Have ta Like It, U.S. NEWS & WORLD REPORT (July 25, 2014), http://www.usnews.com/news/us/articles/2014/07/25/pot-may-be-legal-but-homeowner-agreements-can-ban. 41 See, e.g., Public Health Law Center, Smoke-free Housing and Rent Abatement (2019), https://www.publichealthlawcenter. org/sites/default/files/resources/Smoke-Free-Housing-Rent-Abatement-MN-2019.pdf. 42 These laws vary among states as well. In Massachusetts, for example, landlords can prohibit cannabis smoking via a lease agreement, but cannot prohibit the consumption of cannabis edibles or other non-smoking forms. Mass. Can- nabis Control Commission, Consumption af Cannabis for Adult Use (last accessed June 5, 2021), https://mass-canna- bis-control.com/wp-content/uploads/2018/06/Fact-Sheet-Consumption.pdf. They can, however, prohibit the use of non-smoked cannabis if failing to do so would cause the landlord to violate a federal law or regulation, or if the property is owned by the Commonwealth, a subdivision of the Commonwealth (e.g., a county, city, or town), or a state or local government agency. Id. In Rhode Island, no landlord may refuse to lease to, or otherwise penalize, a renter solely because of the renter's status as a medical cannabis cardholder. The landlord does have the discretion, however, not to lease, or continue to lease, to a card holder who cultivates cannabis in the leased premises. R.I. STAT. Title 21, Sec. 27-28. 6-4, http://webserver.rilin.state.ri.us/S tatutes/TITLE21/21-28.6/21-28.6-4. HTM. 43 Public Health Law Center, Smoke-free Multi-Unit Housing Model Ordinance (2020), https://www.publichealthlawcenter. org/sites/default/files/resources/CA-Smoke-free-MUH-Model-Ordinance.pdf. 44 Douglas, supra note 19, at 7. 45 Rachel Ann Barry et al., Waiting for the Opportune Moment: The Tobacco Industry and Cannabis Legalization, 92 MILBANK QUARTERLY 207, 208-9 (2074), http://bit.ly/luUpJeb. 46 HUD Notice PIH-2012-25, May 29, 2012 ("This notice strongly encourages Public Housing Authorities (PHAs) to im- plement non-smoking policies in some or all of their public housing units .... PHAs are permitted and strongly encour- aged to implement a non-smoking policy at their discretion, subject to state and local law."). 47 See Memorandum from Helen R. Kanevsky, Medical Use of Cannabis and Reasonable Accommodation in Federal Public and Assisted Housing 2, Jan. 20, 2017, http://www.scribd.com/doc/47657807/HUD-policy-Memo-on-Medical-Canna- bis-in-Public-Housing#download. 481d. 49 Id. at 10-11. 50 U.S. Food & Drug Admin., FDA Regulation of Cannabis and Cannabis-Derived Products: Questions and Answers, http:// www.fda.gov/NewsEvents/PublicHea1thFocus/ucm421168.htm. 51 See, e.g., U.S. Dep't Housing and Urban Development, Use of Cannabis in Multifamily Assisted Properties (2014), https:// www.hud.gov/sites/documents/USEOFMARIJINMFASSISTPROPTY.PDF. 52 See Public Health Law Center, Smoke-free Multi-Unit Housing: Equitable Enforcement Strategies (2020), https://www. publichealthlawcenter.org/sites/default/files/resources/SF-MUH-Equitable-Enforcement-Strategies.pdf, 53 Id. 54 U.S. Dep't Housing and Urban Development, Medical Cannabis Use in Public Housing and Housing Choice Voucher Programs (Feb. 10, 2011), http://portal.hud.gov/huddoc/med-cannabis.pdf. July 2021 www.publichealthlawcenter.org/caltobacco Regulating Cannabis Smoking in Multi-Unit Housing 13 What is Health Equity? There is a distinct difference between equality and equity. Equality provides everyone with the same resources, opportunities and support. However, this does not take individuals' background and circumstances into consideration and may not lead to equal or fair outcomes. Equity evens the playing field by providing individuals' support based on their specific needs and circumstances, leading to fair and equal outcomes. With this distinction in mind, health equity is when every person has the opportunity to "attain his or her full health potential." How Your Environment Impacts Your Health Where you live directly impacts your overall health. For example, living in an area without sidewalks limits access to safe streets to walk and run. Living with neighbors who smoke can lead to exposure to secondhand smoke and serious health problems. Secondhand smoke contains toxic chemicals that can become embedded in carpets, furniture and walls long after a resident has moved out: this is called thirdhand smoke. (760) 631-5000 Ext. 7165 I tobaccoprogram@vcc.org CC Vista Community Clinic northcoastalprevention.org/program/tc •• © 2021. California Department of Public Health. Funded under contract# 20-10005 D @sdstayinformed @VCCTobacco i,QUE ES TENER EQUIDAD EN LA SALUD? Hay una diferencia clara entre igualdad y equidad. La igualdad !es proporciona a todos los mismos recursos, oportunidades y apoyo. Sin embargo, no toma en cuenta los antecedentes y circunstancias de las personas y puede no conducir a resultados equitativos o justos. La equidad iguala el campo de juego al proporcionar el apoyo a las personas en funcion de sus necesidades y situaciones espedficas, lo que conduce a resultados mas justos e iguales. Con esta distinci6n en mente, la equidad en la salud es cuando cada persona tiene la oportunidad de "alcanzar todo su potencial de buena salud." COMO EL AMBIENTE AFECTA SU SALUD El lugar donde vive afecta directamente su salud en general. Por ejemplo, vivir en un area sin banquetas lirnita el acceso a calles seguras para caminar y correr. Vivir con gente que fuma puede exponerlo(a) al humo de segunda mano y problemas de salud graves. El humo de segunda mano contiene sustancias quimicas toxicas que pueden estar en las alfombras, muebles y paredes a tin despues de que un residente se haya mudado: esto se llama humo de tercera mano. CC Vista Community Clinic (760) 631-S000 Ext. 716S I tobaccoprogram@vcc.org northcoastalprevention.org/program/tc @sdstayinformed @VCCTobacco © 2021. Departamento de Salud Publica de California. Financiado en virtud del contrato 20-10005 SMOKEFREE IS SMOKEFREE Smoke is smoke-regardless of the device or description. Secondhand marijuana smoke contains hundreds of chemicals-just like secondhand tobacco smoke. Many of the chemicals in secondhand marijuana smoke are toxic and contain hazardous fine particles that pose a significant health risk to non-smokers. • More laws legalizing marijuana= increased exposure to secondhand marijuana smoke and vapor. • Employees & patrons protected by current smokefree laws may have their health put at risk by exposure to marijuana smoke or vapor. Marijuana smoking or vaping should not be allowed in smokefree spaces. • The commercialized marijuana industry looks and sounds a lot like Big Tobacco. Together they are • working to circumvent progress on smokefree air. • The vast majority of the population are non-smokers. Smokefree means smokefree-no cigarettes and cigars, e-cigarette use, or marijuana smoking or vaping. SECONDHAND MARIJUANA SMOKE contains many of the same CANCER-CAUSING i• SUBSTANCES and TOXIC CHEMICALS as secondhand tobacco smoke, including ·.• 00 3times the amou_nt of ammonia @ significant levels of mercury, lead, formaldehyde, benzene, hydrogen cyanide, & toluene. PROTECT HEALTH For more information about marijuana and smokefree laws, visit ~ no-smoke.org AMERICAN NONSMOKERS' RIGHTS FOUNDATION 2023-07 [FS-52] SMOKE IS SMOKE: THE DANGERS OF SECONDHAND MARIJUANA SMOKE AND VAPE \ Since recreational marijuana, also known as cannabis, has been legalized in California, there is an increasing overlap between tobacco, marijuana, and e-cigarette use.1 As a result, more people are being exposed to marijuana smoke inside of their homes, especially in an apartment complex. While research is still evolving around marijuana vape exposure, we do know: • Both marijuana and cigarettes produce harmful and toxic secondhand smoke associated with adverse cardiovascular effects like hardening and narrowing of the arteries which could lead to heart attack, stroke and cancer: • Marijuana secondhand smoke contains fine particulate matter than can be breathed deeply into the lungs, which can cause lung irritation, asthma attacks, and makes respiratory infections more frequent.3 • Recent studies have shown that non-smoking individuals exposed to secondhand marijuana smoke not only report feeling the effects of a secondhand high, known as "contact high~" but also have detectable traces of Tetrahydrocannabinol (THC), the active ingredient found in marijuana, in their blood and urine as a result of exposure.5 86°/o IU INCREASE IN SECONDHAND MARIJUANA EXPOSURE IN ADULTS IN 2018 7 UNDERSTANDING SECONDHAND VAPE Electronic cigarettes and vaping products can both be used to deliver nicotine, cannabis, flavorings, chemicals, and other substances. Vape is not harmless "water vapor" but contains dangerous chemicals, tiny particles of metals and flavorings, which are all linked to serious health conditions. People exposed to e-cigarette aerosol absorb nicotine at levels comparable to people exposed to cigarette 6 secondhand smoke. © 2021. California Department of Public Health. Funded under contract # 20-10005 •~Vista • Community Clinic NO SMOKING NOVAPING The use of tobacco, e-cigarettes, and marijuana is prohibited. EXTINGUISH MARIJUANA SECONDHAND SMOKE AT HOME If you live in an apartment or multi-family community, ask your property manager about smoke-free policies. Having a smoke-free policy that includes electronic smoking devices and marijuana in place can help protect you from unwanted exposure to dangerous secondhand effects of marijuana smoke and vape. If you are exposed to secondhand smoke or vape, contact: • Vista Community Clinic for resources. • Your property manager and/or your neighbors. • Your local elected officials about creating a citywide smoke-free multi-unit housing policy. SOURCES 1. Marijuana Prevention Initiative, 2021, https://www.ccrconsulting.org/mpi 2. Marijuana Secondhand Smoke, 2021. American Nonsmokers' Rights Foundation. https://no-smoke.org/wp-content/uploads/pdf/secondhand-marijuana-smoke.pdf 3. Wang X, Derakhshandeh R, Liu J, et al. One Minute of Marijuana Secondhand Smoke Exposure Substantially Impairs Vascular Endothelial Function. J Am Heart Assoc. 2016;5(8):e003858. Published 2016 Jul 27. doi:10.1161/JAHA.116.003858 (original text found on tobaccofree.com website) 4. Holitzki H, Dowsett LE, Spackman E, Noseworthy T, Clement F. Health effects of exposure to second-and third- hand marijuana smoke: a systematic review. CMAJ Open. 2017;5(4):E814-E822 5. Cone EJ, Bigelow GE, Herrmann ES, et al. Non-smoker exposure to secondhand cannabis smoke. I. Urine screening and confirmation results. J Anal Toxicol. 2015;39(1):1-12. doi:10.1093/jat/bku116. 6. E-cigarette or Vaping Product Use-Associated Lung Injury (EVALI) 2019, Yale Medicine. https://www.yalemedicine.org/conditions/evali 7. Secondhand Dangers, https://tobaccofreeca.com/secondhand-dangers/#smokefree-policies CONTACT INFORMATION (760) 631-5000 Ext. 7165 tobaccoprogram@vcc.org .,,..._ W~ northcoastalprevention.org/program/tc @sdstayinformed 0 @VCCTobacco Options for Smoke Free Housing Ordinance Mike Strong, Assistant Director of Community Development August 22, 2023 1 {city of Carlsbad BACKGROUND •State Legislature adopted several smoke-free air laws •City also has some smoke-free air laws: -No smoking in public parks, trails and beaches -No smoking near/within outdoor dining area -Prohibits smoking electronic cigarettes -Prohibits use of cannabis in public spaces •ge 2 BACKGROUND CONT’D •2021 Housing Element program requires city to consider adopting a smoke-free ordinance for multi-family housing -Program request came from the SDHHSA 3 {city of Carlsbad ITEM OVERVIEW •This is a discussion item only. No final action taken. •Council to provide direction on how to move forward. •Three options presented in the staff report: -Option 1 No action. -Option 2 Draft an ordinance with complete prohibition. -Option 3 Draft an ordinance that is tailored. 4 {city of Carlsbad MF SMOKE-FREE AIR LAWS •79 CA cities have adopted 100% smoke free air requirements. •Another 17 have adopted partial prohibitions. •No cities in the San Diego Region, including County of San Diego, have adopted smoke free air laws for multi-family units. 5 OTHER TOOLS •Property owners and managers can voluntarily make their properties smoke-free. •Many lease agreement templates already provide smoke-free air law policies, which are privately enforced. 6 RECOMMENDATION •Provide direction to staff. 7 {city of Carlsbad