More Teeth Needed in Berkeley Smoking Ban in Multi-unit Housing, Councilman Says

A pending Berkeley ban on smoking in multi-unit housing in Berkeley has loopholes that need to be plugged, says City Councilman Jesse Arreguin.

On the council’s agenda Tuesday night, Nov. 19, is a measure by Arreguin containing 10 amendments to the already approved approach, including stronger enforcement and a city registry of all units with no-tobacco leases.

The council has already approved the drafting of a smoking ban in multi-unit housing, and instructed the City Manager’s office to develop the ordinance.

The method of enforcement is a key difference between the approach approved previously and Arreguin's proposal.

Under the plan approved by the council on a 6-1 vote on Oct. 1, enforcement would be by "private right of action," meaning that any resident in a multi-unit residence who is exposed to second-hand smoke could sue the responsible person. The amount that could be won per violation would be between $100 and $250, with no one liable for more than $1,500 per year.

Arreguin says this approach isn't strong enough by itself and proposes adding fines to be imposed by the city that would increase with each violation: $250, $500, $1000 and $1,500. Warnings would be issued before any fines are imposed.

Arreguin would also lower the annual cap on liability for damages under private suits to $1,000.

The reliance on private lawsuits as the sole means of enforcement is a product of the city's limited resources, according to the staff recommendation for the approach approved by the council on Oct. 1. The staff report said the plan includes "an enforcement mechanism to ensure implementation that aligns with available resources."

Arreguin, in his agenda report for his proposal, says, "The City Council should authorize sufficient staff and a funding source for proper enforcement and outreach." He says the City Manager has estimated such a program would cost roughly $120,000 a year, and he proposes an increase in the Rental Housing Safety Program fee of $5 per unit.

Arreguin's proposal also would delay the date on which the new ordinance would take effect until May 1 next year. It is currently slated to begin on March 1.

In addition, Arreguin's proposal calls for the council in the future to consider an ordinance that extends the smoking ban to any dwelling, including single-family homes, that have residents or visitors who are younger than 18, who are non-smokers aged 62 or older, or who are non-smoking lodgers.

Berkeley has smoking bans in place for most public places in the city, including businesses and sidewalks in commercial areas.

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