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 SB 332 Page 2 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.) SB 332 Page 3 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 SB 332 Page 4 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, SB 332 Page 5 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" SB 332 Page 6 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