BILL ANALYSIS Ó SENATE JUDICIARY COMMITTEE Senator Noreen Evans, Chair 2011-2012 Regular Session SB 332 (Padilla) As Amended April 14, 2011 Hearing Date: April 26, 2011 Fiscal: No Urgency: No BCP:jg SUBJECT Smoking: Rental Dwellings DESCRIPTION This bill would codify the ability of a residential landlord to prohibit smoking on the property or in any building or portion of the building, including any dwelling unit. This bill would require every lease entered into on or after January 1, 2012 for residential real property where the landlord has prohibited smoking to include a provision specifying the areas where smoking is prohibited. For leases entered into prior to January 1, 2012, a prohibition against smoking on any portion of the property in which smoking was previously permitted shall constitute a change of terms of tenancy requiring adequate notice, as specified. This bill would state that a landlord who exercises the above authority shall be subject to state and local notice requirements governing changes to the terms of rental agreements that are in existence at the time the policy is adopted. BACKGROUND Since 1994, California has banned smoking in all workplaces, including all restaurants and in 1998 this smoking ban was extended to bars. Current law prohibits public employees and members of the public from smoking a cigarette or tobacco product inside a public building or within 20 feet of any door, window, or air intake of any government building within the state, including buildings owned or occupied by any government (more) SB 332 (Padilla) Page 2 of ? entity, including public universities, or public buildings leased to private entities. Additionally, it is an infraction for a person to smoke within 25 feet of a playground or tot lot sandbox or for a person to smoke in the presence of a minor while in a moving vehicle. According to the California Environmental Protection Agency (CalEPA), secondhand smoke (which is defined as a mixture of the smoke from burning tobacco and the smoke exhaled from smokers) can cause or exacerbate a wide variety of adverse health effects, including asthma, cancer, and respiratory infections in persons of all ages. Because of the toxicity of secondhand smoke, the California Air Resources Board (CARB) identified it as a toxic air contaminant (TAC), so that secondhand smoke is now identified as an airborne toxic substance that may cause and/or contribute to death or serious illness. CARB's action listing secondhand smoke as a TAC was based on a comprehensive report done by the Office of Environmental Health Hazard Assessment on and the health effects of exposure to secondhand smoke. Studies have shown that secondhand smoke can be particularly harmful to children. According to a 1997 study by the CalEPA, the effect on children from secondhand smoke annually causes 120 child deaths from sudden infant death syndrome; 1,200 to 2,200 low-weight births; 900 to 1,800 hospitalizations and 16 to 25 deaths from increased bronchitis, pneumonia, and middle ear infections; and 48,000 to 120,000 children experiencing more acute asthma. Several local jurisdictions have banned smoking in public places. San Luis Obispo was the first city in the world to ban smoking in public buildings in August 1990. Currently, there are 35 California communities that have banned smoking in public places in varying degrees, including Calabasas, El Cajon, Glendale, and Belmont. The Belmont ordinance, passed in October 2007, prohibits smoking in parks and other public places including beaches, and bans smoking inside apartments and condominiums that share a common ceiling and/or floor with another unit. The Glendale ordinance similarly bans smoking in common areas of multi-unit rental housing, and requires a landlord to provide disclosure to prospective tenants regarding smoking in the unit. This bill would, on a statewide level, codify that a landlord may prohibit smoking in a building, a portion thereof, or the SB 332 (Padilla) Page 3 of ? premises on which it is located. That prohibition must be included in a lease agreement, and would be subject to all state and local notice requirements governing changes to the terms of a rental agreement. CHANGES TO EXISTING LAW Existing law regulates the terms and conditions of residential tenancies, and generally requires landlords to keep the rental units in a condition fit for occupancy. (Civ. Code Sec. 1940 et seq.) Existing law creates an implied covenant of quiet enjoyment in every lease, requiring that the tenant shall not be disturbed in his or her possession by the landlord. (Civ. Code Sec. 1927; Pierce v. Nash (1954) 126 Cal.App.2d 606, 612.) Existing law authorizes the creation of anti-tobacco use programs for school-age populations and prohibits any person from smoking a cigarette, cigar, or other tobacco-related product, or from disposing of cigarette butts, cigar butts, or any other tobacco-related waste, within a playground. This bill would provide that, notwithstanding any other provision of law, a landlord of a residential unit may prohibit the smoking of a cigarette, or other tobacco product on the property or in any building or portion of the building, including any dwelling unit, other interior or exterior area, or the premises on which it is located, as specified. This bill would require every lease or rental agreement entered into on or after January 1, 2012, for a residential unit on a property where the landlord has prohibited the smoking of cigarettes or other tobacco products to include a provision that specifies the areas where smoking is prohibited. This bill would provide that a lease or rental agreement entered into before January 1, 2012, a prohibition against the smoking of cigarettes and other tobacco products in any property of the property in which smoking was previously permitted shall constitute a change of the terms of tenancy, requiring adequate notice in writing, as specified. This bill would state that a landlord who exercises the authority provided above to prohibit smoking shall be subject to state and local notice requirements governing changes to the SB 332 (Padilla) Page 4 of ? terms of a rental agreement for tenants with rental agreements that are in existence at the time that the policy prohibiting smoking is adopted. This bill would include numerous findings and declarations regarding the dangers of being exposed to secondhand smoke. COMMENT 1. Stated need for the bill According to the author: Over 30 percent of California's housing are multiunit residences, such as apartments and condos. In this type of housing, scientific studies show that secondhand smoke can travel into and out of open windows and doors, shared ventilation systems and walls, ceiling crawl spaces, and gaps around electrical wiring, light fixtures, plumbing, ductwork, and even baseboards. . . . Existing law requires the owner or landlord of rental housing to maintain the rented area in a habitable condition, including keeping the building and grounds at the time of the commencement of the lease or rental agreement, and all areas under control of the landlord, clean, sanitary, and free from all accumulations of debris, filth, rubbish, garbage, rodents, and vermin. A landlord may include terms in a rental agreement pertaining to pets, noise, and other house rules, in order to comply with these provisions. These responsibilities placed on owners of rental housing help promote the health and safety of the tenants living on the property. ÝThis bill would] allow landlords of multiunit residences to prohibit smoking cigarettes or other tobacco products in or on the property. 2. Landlords currently able to prohibit smoking This bill would codify a landlord's ability to prohibit smoking on a residential rental property, building, dwelling unit, premises, or any portion thereof. While landlords are currently able to take that action, this codification would solidify that ability and ensure that it applies "notwithstanding any other provision of law." Regarding a landlord's current ability to SB 332 (Padilla) Page 5 of ? prohibit smoking, the Public Health Law & Policy Technical Assistance Legal Center's publication entitled "How Landlords Can Prohibit Smoking in Rental Housing," notes: A ban on smoking in common areas is similar to other rules tenants typically must follow regarding the use of common areas, such as the hours for using the laundry facility or the requirement that children be accompanied by an adult when using the pool. It is also legal for a landlord to ban smoking in individual units. Landlords have the legal right to set limits on how a tenant may use rental property-for instance, by restricting guests, noise, and pets. A "no-smoking" term is similar to a "no pets" restriction in the lease-another way for a landlord to protect his or her property. Although landlords may currently prohibit smoking in and around their rental units, the act of codifying that authority raises the policy question of how that ability should be exercised by a landlord. From a policy standpoint, the prohibition should balance the rights of the landlord (and community) to prohibit smoking that could damage real property and impact the health of surrounding tenants while ensuring that tenants addicted to smoking who are not currently subject to a smoking ban have a reasonable time to find new housing, quit smoking, or find an alternate area in which to smoke. This bill seeks to address those issues by requiring smoking restrictions to be in rental agreements, providing that a smoking prohibition constitutes a change in terms of tenancy requiring adequate notice, and clarifying that a landlord who exercises his or her power to prohibit smoking is subject to state and local notice requirements. The author's office notes that the intent of the bill is to codify the landlord's ability to ban smoking so that, should this bill be enacted, a landlord would have the same authority as under existing law. a. Requiring smoking to be in rental agreements To implement the authority to ban smoking, this bill would require every residential lease or rental agreement entered into after January 1, 2012 on property where the landlord has prohibited smoking to include a provision that specifies the areas of the property where smoking is prohibited. While that provision would provide notice to tenants of the smoking limitation at the time of lease signing, it also creates a situation where the tenant could be in breach of the lease SB 332 (Padilla) Page 6 of ? agreement if he or she (or a family member) happens to smoke in violation of the prohibition. That breach may lead to eviction should the landlord elect to issue a 3-day notice to quit or fix the issue under Section 1161 of the Code of Civil Procedure. Failure to comply with the notice could result in eviction of all the residents of the home. It should be noted that nothing in state law prevents a landlord from already including such a provision in a lease agreement regarding smoking. Although eviction due to smoking would appear to be a serious consequence, it would arguably only occur after a tenant knowingly entered into the situation and agreed to the restrictions on the use of the property. For those landlords who have elected to prohibit smoking in certain areas of a property not through a lease agreement, this bill's requirement to include those restrictions in the lease agreement would have the effect of providing full disclosure of those restrictions to new tenants - absent inclusion in the lease agreement, a tenant may not be aware that a landlord had restricted smoking in common areas. b. Future bans to be change in the terms of tenancy for existing leases; local control Pursuant to this bill, if a landlord elects to prohibit smoking in a portion of the rental property where smoking was previously permitted, that prohibition would constitute a change in the terms of the tenancy and adequate written notice must be given to the tenant. While the bill specifies how the notice must be given (personally delivering a copy to the tenant), it does not specify a uniform amount of time that must elapse between providing the notice and the ban taking effect. That time period is important in situations where a family could face eviction because one member is having a difficult time quit smoking within the requisite time period. That silence appears consistent with the intent of the author's office to codify the ability to ban smoking, but not change the underlying ability of local governments (and existing state law) to address the issue of notice. Instead of providing a standard timeframe for notice, the bill states that a landlord who does prohibit smoking is subject to state and local notice requirements governing changes to the terms of rental agreements. That provision would incorporate notice provisions in existing local ordinances, and thus would not override the policy choice made on a local level regarding SB 332 (Padilla) Page 7 of ? appropriate notice for any change in the rental agreement. As a result, the bill would ensure that notice is given to tenants who are currently permitted to smoke in their home before a landlord may prohibit that ability to smoke pursuant to the bill. Staff further notes that numerous cities, including Santa Monica and Glendale, have acted to prohibit smoking in common areas of multi-unit residential housing and enacted provisions to provide tenants with notice of those prohibitions. State law also contains provisions requiring notice to be given to tenants prior to a change to the terms of leases that are month-to-month, or for a period of less than a month. (Civ. Code Sec. 827.) It should be noted that smoking tenants could arguably still walk off the property (to the street) to smoke, although that option may only be available to tenants who are, in fact, mobile enough to travel the distance. On the other hand, given the large amount of smoking cessation products on the market, a short time frame could give the tenant a short-term goal by which to eliminate their in-home tobacco habit. The health benefits of quitting smoking would not be limited to the individual themselves - the Centers for Dieses Control and Prevention notes that secondhand smoke can cause heart disease or lunch cancer in adults and that 7,500 - 15,000 hospitalizations occur annually for children 18 months and younger due to that secondhand smoke. The landlord would also benefit from not having smoke damage in the unit. c. Grandfathering clauses; local preemption This bill would provide that "notwithstanding any other provisions of law," a landlord may prohibit smoking in any dwelling unit, interior or exterior area, or on the premises. While the bill does not specifically state that it would preempt local ordinances, the "notwithstanding any other provisions of law" language would arguably preempt any inconsistent local ordinance. Information provided by the author's office notes that some ordinances which ban smoking in various degrees include a grandfathering clause that either allows or requires a landlord to maintain a unit as a smoking unit, upon request of the tenant, for as long as the tenant continuously leases the unit. The authority provided by this bill to ban smoking could potentially override those clauses and allow a landlord to prohibit smoking in those units, SB 332 (Padilla) Page 8 of ? subject to the provision of adequate notice to the tenant. As an example of an ordinance with a grandfathering clause, the City of Novato's anti-smoking ordinance requires existing multi-unit residences to have at least 50 percent of the units to be designated as non-smoking, but provides that: A unit designated non-smoking by action of the landlord or by the force of this chapter shall not be subject to the smoking restrictions of this section while the legal tenant(s) in occupancy on the effective date of the ordinance . . . continuously leases the unit. (Novato Ord. No. 1533, Sec. 2.) The following amendment would remove any confusion surrounding the application of the bill to existing local anti-smoking ordinances: Clarifying amendment: On page 3, line 34 after the period, insert: (d) Nothing in this section shall be construed to preempt any local ordinance in existence on or before January 1, 2012. 3. Demographics of smoking There is little dispute that smoking carries significant health risks for both those who smoke, and those who are exposed to secondhand smoke. According to statistics released by the Centers for Dieses Control and Prevention, over 3.8 million Californians (14.0 percent) are current cigarette smokers. Of that 14.0 percent, the numbers can be further broken down as follows: Education: More than a high school degree - 11.3 percent High school degree - 19.6 percent Less than a high school degree - 16.8 percent Gender: Male - 17.8 percent Female - 10.3 percent SB 332 (Padilla) Page 9 of ? Race/Ethnicity: Native Hawaiian/Pacific Islander - 23.4 percent American Indian /Alaska Native - 33.5 percent Asian - 7.4 percent Hispanic - 13.5 percent African American - 24.3 percent White - 14.3 percent (Tobacco Control State Highlights 2010, http://www.cdc.gov/tobacco/data_statistics/state_data/state_hig hlights/2010/pdfs/highlights2010.pdf ) Given the above demographics, should this bill result in more landlords prohibiting smoking on their rental properties (something they already can do), some may argue that the resulting restrictions could disproportionately affect some of the above groups. Alternatively, from a public health perspective, those additional prohibitions could arguably act to lower California's smoking rate even further, potentially reducing the number of smokers in the above groups. From a practical standpoint, it appears unlikely that all landlords would elect to prohibit smoking given the potential market for "smoking" rental units. The net result of this bill would be to reinforce the current right of landlords to prohibit smoking while ensuring that tenants receive adequate notice of the change. Support : Aging Services of California; American Diabetes Association; California Medical Association Opposition : None Known HISTORY Source : Author Related Pending Legislation : None Known Prior Legislation : SB 1598 (Padilla, 2008), would have similarly codified a landlord's ability to prohibit smoking. This bill was referred to, but not heard in, the Assembly Judiciary Committee. SB 332 (Padilla) Page 10 of ? **************