BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 332
                                                                  Page  1

          Date of Hearing:  June 14, 2011 

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                     SB 332 (Padilla) - As Amended:  June 6, 2011

                              As Proposed to be Amended

           SENATE VOTE  :  33-2
           
          SUBJECT  :  SMOKING: RENTAL DWELLINGS

           KEY ISSUE  :  should the state codify a landlord's right to 
          prohibit smoking on THEIR propertIES? 

           FISCAL EFFECT  :  As currently in print this bill is keyed 
          non-fiscal.

                                      SYNOPSIS

          This non-controversial bill seeks to codify, at the state level, 
          a landlord's right to prohibit smoking in a rental building, a 
          portion thereof, or the premises on which it is located.  
          Presently, there appears to be no law preventing landlords from 
          contracting such terms into the lease agreement, and this bill 
          simply seeks to formalize this right in state law.  The bill 
          appropriately requires that any prohibition on smoking must be 
          included in a lease agreement, and notes that any such provision 
          would be subject to all state and local notice requirements 
          governing changes to the terms of a rental agreement.  This 
          Committee considered and at the author's request did not act 
          upon a similar bill, SB 1598 (Padilla) in 2008, after the 
          original supporters objected to amendments creating 
          "grandfather" clauses allowing current tenants to continue to 
          smoke in their dwellings.  This bill, in present form, contains 
          no such state-wide "grandfather" clause.  Finally, the bill's 
          language ensures that its terms will not impact any other terms 
          of the lease, including rent control agreements.  This bill is 
          supported by several state health organizations, health care 
          professional organizations as well as apartment owner groups and 
          has no stated opposition at this time.

           SUMMARY  :  Codifies a landlord's right to prohibit smoking on 
          their properties.  Specifically,  this bill  :

          1)Permits a residential landlord to prohibit smoking of a 







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            cigarette or any other tobacco product on the entirety of a 
            rental property.  The prohibition would include individual 
            dwelling units, all communal buildings, indoor and outdoor 
            public spaces and any other section of the property as 
            specified by the landlord.

          2)Requires all residential lease or rental agreements entered 
            into on or after January 1, 2012 to include detailed 
            provisions in the lease describing the area in which smoking 
            is prohibited.

          3)States that for all leases signed before January 1, 2012, a 
            new smoking prohibition impacting any portion of the property 
            constitutes a change in terms of the rental or lease 
            agreement.  This change to rental or lease agreement terms 
            would require the landlord to provide all impacted tenants 
            adequate written notice. 

          4)States that smoking prohibition does not change any other 
            provision of the lease including, but not limited to, rent 
            control provisions.

          5)Defines "adequate written notice" as notice that complies with 
            all federal, state and local notice requirements regarding 
            changes to terms of residential leases or rental agreements 
            that are in existence at the time the smoking prohibition is 
            adopted by the landlord.

          6)States that the bill's provisions do not preempt local 
            ordinances, including those that create "grandfather" 
            exemptions for certain (pre-existing) residents from smoking 
            bans.

          7)States that this bill does not require statutory authority to 
            establish or enforce any other lawful term or condition of 
            tenancy. 

          8)Includes findings and declarations regarding the dangers of 
            second hand smoke.

           EXISTING LAW  :

          1)Regulates the terms and conditions of residential tenancies, 
            and generally requires landlords to keep the rental units in a 
            condition fit for occupancy.  (Civil Code Sec. 1940 et seq.)








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          2)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.  (Civil Code Sec. 1927; Pierce v. 
            Nash (1954) 126 Cal.App.2d 606, 612.)

          3)Prohibits any person from smoking in any public workplace or 
            restaurant, inside a public building or within 20 feet of any 
            air intake door or window of any government building.  (Health 
            & Safety Code Sec. 118900; Government Code Sec. 7597 et seq.)

          4)Prohibits any person from smoking within 25 feet of a 
            playground.  (Health and Safety Code Sec. 104495.)

           COMMENTS  :  California already bans smoking in most public 
          places, and there currently appears to be no laws or regulations 
          preventing landlords from banning smoking on any part of their 
          properties.  This bill codifies this right.  The bill's author 
          states:

               According to the Centers for Disease Control and Prevention 
               (CDC), secondhand smoke is responsible for an estimated 
               49,400 deaths among nonsmokers each year in the United 
               States, which includes 3,400 lung cancer deaths and 46,000 
               deaths due to heart disease. Despite these health effects 
               current law is silent as to a landlord's ability, in rental 
               housing settings, to restrict the areas where smoking is 
               permitted

               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 







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               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.

           Landlords Already Can Ban Smoking on Their Property:   As noted, 
          currently landlords can ban smoking on their residential 
          properties so long as the rules governing the prohibition are 
          included as terms of the rental agreement.  This bill simply 
          codifies this right in law and ensures that tenants are given 
          notice of the prohibition in the rental agreement.  A ban on 
          smoking is similar to other contractual restrictions landlords 
          place on tenants including the imposition of "quiet hours", 
          guest restrictions, pet restrictions and other restrictions on 
          the use of one's own dwelling.

          By requiring the smoking prohibition to be placed in the rental 
          agreement, violations would place residents at risk for 
          eviction.  This concern is limited however, as any tenant who 
          signs onto a lease would know, at the time they accepted the 
          lease terms, smoking was prohibited on the property.  This bill 
          requires landlords to detail the sections of the property in 
          which smoking is prohibited, thus residents should be on notice 
          as to what portion of the residential facility is off-limits to 
          smoking and use that information to determine the desirability 
          of living at a given property.  

           Retroactivity Issues for Bans Implemented on Leases Signed 
          Before January 1, 2012:   The bill requires that beginning on 
          January 1, 2012, any smoking prohibition on rental properties be 
          stated as a part of the new rental agreement's terms.  By 
          requiring that all rental property smoking bans be included in 
          leases, by definition any rental property that implements a ban 
          on smoking changes the terms of all leases signed prior to 
          January 1, 2012 (assuming no such provision existed).  Any 
          change to terms of a lease requires the landlord to properly 
          notify the tenant of the new provisions. 

          This bill appropriately requires all notices to be in writing 
          and delivered to the tenant or posted on the apartment door.  
          Beyond the stated provisions, this bill defers notice 
          requirements to existing federal, state and local laws.  The 
          length of the notice is important as resident smokers facing new 
          prohibitions on smoking must be given adequate time to move, 







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          apply for a waiver (if an applicable grandfather waiver is 
          permitted by law), or quit the habit.  California already 
          requires a month's notice for any modification of month-to-month 
          leases.  Additionally, several California cities require upwards 
          of one month notice be given to residents when any smoking 
          prohibition is implemented at a rental complex.  Lacking any 
          notice requirements (beyond a formal writing and delivery) the 
          bill incorporates all existing federal, state and local notice 
          requirements into the law.  The lack of specific notice 
          requirements in this bill is consistent with the author's intent 
          of treating smoking bans like all other lease modifications and 
          simply permits the already applicable requirements to apply. 

           Local preemption issues:   The bill's clause stating, "this 
          section shall not be construed to preempt any local ordinance in 
          effect on or before January 1, 2012" (Page 3 Line 39) was 
          designed to permit local ordinances that "grandfather" resident 
          smokers to remain in effect.  Upwards of 35 California cities 
          have enacted ordinances relating to smoking in rental dwellings. 
           Most cities included "grandfather" exemptions from smoking 
          prohibitions requiring a landlord to maintain a unit as a 
          smoking unit upon request of the tenant, for as long as the 
          tenant continues to lease the unit.  A prior version of this 
          bill, SB 1598 (Padilla, 2008), encountered opposition to a 
          similar statewide "grandfather" provision.  This bill, while not 
          creating a statewide "grandfather" clause, would not preempt or 
          change those local ordinances "grandfathering" the effects of 
          smoking prohibitions as applied to current tenants.

           Author's Technical Amendment:   The author proposes the following 
          amendment to correct a technical error in the bill:

               -      On page 1 strike line 1-3 and insert "An act to add 
                 Section 1947.5 to the Civil Code relating to tenancies"
               -      On page 3 remove line 3-9 and insert "SEC 2 Section 
                 1947.5 is added to the Civil Code to read:"
               -      On page 3 line 11 remove "104497" and insert 
                 "1947.5"
               -      On page 3 line 12 remove "of the Civil Code" 
               -      On page 3 line 13 insert "of the health and safety 
                 code"
               -      On page 3 line 22 remove "and" and insert "or"
               -      On page 3 line 24 remove lessor and insert lessee 
               -      On page 3 line 27 remove "and" and insert "or"
               -      On page 3 line 32 remove "of the Civil Code"
           







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          Prior/ Pending Legislation  :  SB 1598 (Padilla, 2008):  A similar 
          bill that would have codified a landlord's ability to prohibit 
          smoking on rental properties was referred to this Committee but 
          was not heard.

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          Aging Services of California
          American Diabetes Association
          California Apartment Association
          California Medical Association
          Santa Clara County Board of Supervisors
          Los Angeles County Board of Supervisors
           
          Opposition 
           
          None on file


           Analysis Prepared by  :   Drew Liebert & Nicholas Liedtke / JUD. / 
          (916) 319-2334