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 
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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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