Berkeley Eyes Anti-Tobacco Law in Multi-Unit Housing

Berkeley city staff is asking the City Council on May 7 to prohibit exposing neighbors to secondhand smoke in all multi-unit housing and to require all new leases in multi-unit housing to include a non-smoking clause.

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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Ethan May 05, 2013 at 05:27 AM
Hi Mary, Don't worry, even if the City does actively enforce it the Rent Board will "grandfather" all the existing tenants in that have smoking rights. There's already a ban on smoking in public areas inside apartment complexes passed a couple of years ago by the City. When I tried to stop a rent-controlled tenant from smoking in the courtyard and other common areas the Rent Board ruled in their favor stating that their 30 year-old lease trumps the current City law that smoking was banned in all common areas. Newly passed City laws do not override any tenant leases signed before the laws are enacted.
Charles H. Cook June 05, 2013 at 04:10 AM
The existing smoking ban BMC 12.70.030 (sections A-Y) is arbitrary at best -- at worst environmental protection and brain-dead-science hypocrisy. Why? Non-smokers, especially those espousing they "hate" smoking don't seem to feel comparably about gas-fueled vehicle exhaust -- thousands toxic-waste pollution machines driving 24-7 through and within the geopolitical boundaries of Berkeley. As a 41-year smoker (from age 12-53), I wouldn't argue in self-serving logic that I have some a priori or a posteriori right to pollution my fellow resident's air -- if that air were 100% free of all pollution. However, I would argue that I have the same self-serving-right to contribute a lesser source and level of pollution into the public-air as any individual or collective gas-fuel drivers -- who exponentially contribute more toxic probably health harming pollution into the public air than any individual and collective smokers. No this is not a smoker vs non-smoker argument -- but a polluter vs polluter argument, smokers and drivers. If the core issue is -- reducing injurious pollutants into the public air, then smoking would be the lesser of most in juxtaposition to vehicle exhaust. Yet non-smokers "hate" smoking but feel no hypocritical-shame with getting in their pollution-mobiles and driving and polluting -- subjecting me and all others (smokers and non-smokers) to their toxic exhaust. So let's do the the most basic off controlled experiments: A. Non-Smoker Group 1 gets put in a sealed room with car exhaust running -- what will be the outcome? B. Non-Smoker Group 2 gets put in an exact same size room, with the exact same air, with 1 person smoking 1 cigarette every 3-5 minutes (the average time to smoke 1 cig) for the same time as Group 1 -- what will be the outcome? My point is -- the second-hand smoke issue in public outdoor space is about which group of polluters will be regulated while others NOT ... while the indoor issue is more valid albeit vehicle exhaust flows into our housing units along with much if not all of its toxins. So do we really want to reduce harmful pollution or do we double-standard and arbitrarily regulate, demonized, and hate one group of lesser polluters over another group of polluters -- where the latter are free to legally subject us all to their Selfishness, Ignorance, and Negativity (S.I.N.) of hating smokers but not themselves! And let's not even debate the billion-dollar cost and death caused by our vehicle pollution dependence of OIL ... the many wars, soldiers and civilians killed in their wars, plus the waste of billions of dollars in tax-dollars that could be use to create anti-poverty programs, more jobs, and substantive science-fact-based and equitable environmental policies ... including incrementally transforming our gas-fueled transports into hybrids and 100% other non-pollution sources ... where smokers and non-smokers are not subjected to LA-Type Smog and Butt-Head pollution run. Again, this isn't a defense of smoking and its adverse health impact -- this is critique of moral, environmental, and political hypocrisy because there yet exist a movement to ban or substantively regulate the first-hand-smoke of vehicle owners and drivers. Thus I hope you, Mary and Ethan, aren't gas-fueled car owners who "hate" smokers like me but not "polluters" like yourselves -- millions of them driving and polluting 24-7/365 in our nation and in Berkeley. I hope you, Mary and Ethan, if you drive, wouldn't want me or any and all smokers to "hate" you for being hypocrites and polluters of our public air space -- that we all share.
John Miller September 04, 2013 at 05:10 AM
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Daniel Morgan December 28, 2013 at 02:15 AM
It's like smoking gives people just a little bit of happiness and you get to take that away from them, you people must feel awesome about that. Also how is it fair that California is allowed to promote smoking around the world, and at the same time has more anti-smoking laws than any place in the world? The hypocrisy of it all makes a huge statement of how gullible people in this state are. There are real issues in this country that need attention, and your all so brainwashed by pointless anti-smoking campaigning and legislation, you don't have the time or patience to care about making real changes. Your giving them exactly what they want, nice job. Sheep.


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