Berkeley Eyes Anti-Tobacco Law in Multi-Unit Housing

Berkeley could become the first rent-control city in the nation to ban secondhand tobacco smoke in all multi-unit housing if the City Council adopts an anti-tobacco ordinance that's on the May 7 council agenda, according to city staff.

The city law would make it illegal to expose neighbors in multi-unit buildings to secondhand tobacco smoke and would require all new leases in such housing to include no-smoking clauses.

The proposed ordinance was developed by staff during the past year from study of smokefree housing laws in other California cities and consultation with Berkeley's Community Health Commission and Rent Stabilization Board, according to a detailed, 28-page staff report prepared for the council meeting. The staff met also with the Medical Cannabis Commission and the Commission on Aging, according to the report.

The staff report is attached to this article.

Enforcement of the secondhand smoke exposure ban would be up to those who are exposed. They would need to take the offending neighbor to court.

"The proposed ordinance will be enforced solely through private right of action due to the lack of sufficient resources or a viable source to fund more robust enforcement," the staff report says. The penalties for exposing neighbors to secondhand smoke would range between $100 and $250.

In addition, the law would allow a tenant to terminate a lease without penalty if a landlord failed to include the no-smoking clause in new leases or failed to enforce the clause.

The law would not apply to medical marijuana, the staff report says.

"Staff believes that if adopted, this would be the first ban on secondhand tobacco smoke in 100% of all multi-unit housing in a rent controlled city in the United States," the staff report says. "Santa Monica passed the first smoke-free housing ordinance adopted by a city with rent control in California but it only applies to new vacancies and new buildings resulting in a delay of many years in a total ban in 100% of all multi-unit housing."

Several California cities without rent control limit or entirely ban smoking in multi-unit housing. A table in the staff report shows the types of limits in a number of such cities.

The new law would be implemented gradually beginning with community education and outreach. The staff report provides the following description of the implementation process:

1. A robust education and outreach program. After adoption of the ordinance, Tobacco Prevention Program staff in the Public Health Division will collaborate with Rent Stabilization Board staff to provide a minimum of 12 months of outreach and education to property owners, landlords and tenants. Activities will include informational mailings, on-site technical assistance and the provision of non-smoking notification packets and no-smoking signs. 

2. Information and referral. Beginning July 1, 2014, Tobacco Program staff will respond to residents who contact the City with complaints about secondhand smoke in multi-unit housing. These residents will receive a copy of the ordinance, information about the dangers of secondhand smoke, guidelines for working with a neighbor to resolve a complaint about secondhand smoke, referrals to mediation services and information about their rights to terminate their lease without penalty. They will also be provided with reference materials and template communications for pursuing a private right of action if the problem continues. 

The report cites health research showing that secondhand smoke contributes to deaths from heart disease and cancer and to retarded fetal growth.

In its latest annual report card on local anti-tobacco efforts by cities, the American Lung Association gave Berkeley a "B" for its anti-smoking policies, considerably better than the average. Most California cities – 63 percent – received an "F."

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