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)
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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
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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
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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
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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
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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
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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,
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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
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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.
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