BILL ANALYSIS �
AB 746
Page 1
Date of Hearing: April 17, 2013
ASSEMBLY COMMITTEE ON HOUSING AND COMMUNITY DEVELOPMENT
Norma Torres, Chair
AB 746 (Levine) - As Amended: April 2, 2013
SUBJECT : Smoking: prohibition in multifamily dwellings
SUMMARY : Prohibits smoking cigarettes or other tobacco
products in all new or existing multifamily dwellings except in
designated areas. Specifically, this bill :
1)Defines "multifamily dwelling" as residential property
containing two or more units with one or more shared walls,
floors, ceilings, or ventilation systems.
2)Allows a landlord, property manager, building owner,
homeowners association, or other equivalent authority to
designate an outdoor smoking area if the following conditions
are met:
a) It is 20 feet from any unit or enclosed area where
smoking is prohibited;
b) It does not include, and is at least 100 feet, from
unenclosed areas primarily used by children and unenclosed
areas where physical activity occurs, including
playgrounds, pools, and school campuses;
c) It includes no more than 10% of the total enclosed area
of the multifamily dwelling for which it is designated;
d) It has a clearly marked perimeter and is identified by
conspicuous signs;
e) It is a completely confined area; and
f) It does not overlap with any enclosed or unenclosed area
in which smoking is otherwise prohibited.
1)Makes smoking an infraction, beginning January 1, 2015, and
creates the following enforcement provisions:
a) For a first offense, a tenant will receive a notice in
writing that smoking in the unit or enclosed area is
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prohibited;
b) For a second offense, a tenant will be fined $100, or
may enroll in a smoking cessation program offered through
the state Department of Public Health (DPH); and
c) For a third offense, a tenant will be fined up to $200.
1)Allows a local city or county to enact or enforce an ordinance
relating to smoking in multifamily dwellings if the ordinance
is more stringent than this law.
2)Requires DPH to develop, implement, and publicize a smoking
cessation awareness and educational program that includes a
description of the penalties that will be imposed for a
violation.
EXISTING LAW
1)Allows a landlord of a residential dwelling unit to prohibit
smoking of a cigarette or other tobacco products on the
property or in any building, including any dwelling unit,
interior, or exterior area (Civil Code Section 1947.5).
2)Requires every lease or rental agreement entered into on or
after January 1, 2012, for a residential unit on a property,
for which the landlord has prohibited smoking in any portion
of the building or property, to specify where smoking is
prohibited if the tenant had not previously occupied the
building (Civil Code Section 1947.5).
3)Requires that for a lease or rental agreement entered into
prior to January 1, 2012, a prohibition on smoking of
cigarettes or other tobacco products in any portion of a
property where it was previously permitted constitutes a
change in tenancy and requires notice as prescribed in Civil
Code Section 827 (Civil Code Section 1947.5).
4)Provides that a landlord who restricts smoking in a
residential dwelling unit is subject to any existing federal,
state, or local requirements governing smoking cigarettes and
tobacco products at the time the policy limiting or
prohibiting smoking is adopted (Civil Code Section 1947.5).
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5)Makes it an infraction punishable by a fine not exceeding $100
for a person to smoke a pipe, cigar, or cigarette in a motor
vehicle in which there is a minor, whether in motion or at
rest (Vehicle Code Section 12814.6).
FISCAL EFFECT : Unknown.
COMMENTS :
Purpose of this bill : According to the author, "the Surgeon
General has found that there is no risk free level of contact
with secondhand smoke. The California Air Resources Board has
classified secondhand smoke as a toxic air contaminant. The
Centers for Disease Control and Prevention (CDC) estimates that
secondhand smoke causes 50,000 premature deaths annually. In
infants and children, secondhand smoke exposure can cause severe
asthma attacks, respiratory infections, ear infections, and
sudden infant death syndrome. In December of 2012, the CDC
published a study in Nicotine and Tobacco that estimated that
4.6-4.9 million Californians are exposed to secondhand smoke in
multi-unit housing against their wishes. According to a 2004
survey by the Center for Tobacco Policy, 82% of California
renters would prefer to live in an apartment complex where
smoking is not allowed anywhere or only in a separate smoking
section. Additionally, a 2008 survey by the California
Department of Public Health found that 77% of Californians feel
that apartment complexes should require half their rental units
to be smoke-free. Lighted tobacco is the leading cause of
residential fire deaths. Of residential fire deaths from
tobacco, one in four fatalities was not the smoker. AB 746 would
ensure that the 4.6-4.9 million men, women and children that are
currently subjected to secondhand smoke exposure against their
will are able to breathe clean air in the place they should feel
safest being able to do so, their homes."
Previous legislation : In 2011, SB 332 (Padilla), Chapter 264,
clarified that landlords have the authority to restrict smoking
in dwellings. Although landlords already had authority to
prohibit smoking, the lack of a statewide law created confusion
for landlords seeking to ban smoking on their properties. SB
332 required all notices to be in writing and delivered to the
tenant or posted on the apartment door. Beyond that, the bill
treated smoking bans like all other lease modifications and
simply permitted the already applicable requirements to apply.
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Federal efforts to restrict smoking in public housing : The
Department of Housing and Urban Development has taken steps over
the last few years to restrict smoking in multifamily dwellings
that received federal subsidy. The Journal of Nicotine and
Tobacco Research published findings in 2011 that 79 million
people live in multifamily housing nationwide. The study did
not differentiate between private and public housing. Although
63 million of those individuals reported not smoking in their
homes, 28 million people reported exposure to secondhand smoke
in their units. Beginning in 2009, HUD began encouraging Public
Housing Authorities (PHAs) that received direct assistance from
HUD to support affordable housing to adopt smoke free policies.
In 2010, HUD extended this recommendation to owners and managers
of federally assisted multifamily units.
Local ordinances : Cities and counties throughout the state have
adopted smoking ordinances for multifamily dwellings. Ordinances
vary from community to community, in some cases banning 100% of
smoking in existing multifamily dwelling units or newly
constructed multifamily dwelling units, or restricting smoking
in common areas but not prohibiting smoking in an individual's
unit. This bill would preempt enforcement of those ordinances
that are not as stringent as the proposed law. It's unclear
what effect this provision would have on an ordinance that
prohibits smoking in the common area but not in an individual
unit. It seems likely that this bill would supersede all
ordinances that do not ban smoking completely in individual
units in multifamily developments.
Enforcement : Methods for enforcing local ordinances banning
smoking vary across jurisdictions. Some methods include making
the landlord liable if a tenant is smoking, a violation is a
material breach of the lease and results in eviction, and
enforcement by a public health officer. This bill includes an
enforcement provision that progresses from a written warning to
increasingly more severe fines. Because the bill makes smoking
an infraction of the law, it would be enforced by a peace
officer. This bill could result in a tenant being evicted,
because a tenant who commits a crime on the premises of his her
dwelling can be subject to a good-cause eviction.
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Cessation programs : According to the American Lung Association,
California received a grade of "A" for restricting smoking to
provide a smoke-free environment and a grade of "F" for smoking
cessation efforts. California invests $2.40 per smoker in a
state smokers' helpline to direct smokers to local cessation
programs. The CDC recommends an investment of $10.53 per smoker
in cessation programs. This bill would direct the Department of
Public Health to develop a smoking cessation awareness and
educational program that includes a description of the penalties
that will be imposed on tenants that violate this bill. It's
unclear in the bill if this program would be funded by the fines
imposed on smokers or if funding would come from another source.
Disproportionate effect on lower-income tenants : Lower-income
and minority tenants smoke at a higher rate than other tenants.
Although this bill does not explicitly allow landlords to evict
tenants who smoke, it does provide for fines of up to $200 for
each incident in which a tenant is found to be smoking in his
unit after two previous incidents. This fine could be
significant cost to tenants who are finding it difficult to quit
smoking or cannot afford smoking cessation programs.
Arguments in support : According to the sponsor, "although
Californians have extensive protections from exposure to
secondhand tobacco smoke where they work, eat, and play, many
people are still exposed to secondhand smoke where they should
feel the most safe - their homes. Nonsmoking residents of
multi-unit housing complexes who choose to make their units
smoke-free may still be exposed to secondhand smoke that
infiltrates their units from other units or common areas,
potentially endangering their health. Secondhand smoke can drift
from neighboring units, neighboring patios and balconies and
from outdoor common areas into nonsmokers' units through open
windows, open doors, and shared ventilation systems.
Smoke-free housing policies do not prohibit people who smoke
from living in a nonsmoking unit. The policies simply require
that there be no smoking in that unit. Some believe such
policies discriminate against low-income tenants who smoke, but
the real discrimination is against low-income families who
cannot escape exposure to deadly secondhand smoke and cannot
find another place to live because of income, health, or other
reasons. Low-income individuals have less access to health care
and are more likely to suffer from conditions, such as asthma,
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that are worsened by secondhand smoke exposure. In fact, housing
authorities throughout California are beginning to recognize
this reality and have begun prohibiting smoking in low-income
and senior housing. As of November 2012, 19 cities and counties
have adopted a policy to require nonsmoking units in housing
authority properties or affordable housing."
Arguments in opposition : According to the Santa Monicans for
Renters' Rights, "AB 746 would jeopardize the tenancies of
low-income and minority tenants who smoke in greater percentages
than other tenants and don't have access to expensive smoking
cessation programs." Several apartment associations are also
opposed to the bill. They are concerned that the bill does not
identify who is responsible for enforcing the ban on smoking
which they believe would mean that enforcement would fall on the
property owner. Also, they argue that the bill fails to protect
owners and property managers from liability. The California
Association of Realtors (CAR) shares this concern and believes
landlords could be exposed to liability if they fail to enforce
the law against a smoker or do not provide a designated smoking
area. CAR believes that it may be impossible for all rental
developments to meet all of the requirements for providing a
smoking area outlined in the bill due to lack of space.
Double referred : If AB 746 passes this committee, the bill will
be referred to the Committee on Governmental Organization.
REGISTERED SUPPORT / OPPOSITION :
Support
American Lung Association (sponsor)
Alameda County Tobacco Control Coalition
American Cancer Society Cancer Action Network
American Heart Association
Breathe California
California Black Health Network
California State Firefighters' Association, Inc.
ChangeLab Solutions
Community Health Education Institute
Fresno County Tobacco-Free Coalition
Health Officers Association of California
La Clinica de La Raza, Inc.
LeadingAge California
March of Dimes, California Chapter
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Rose E. Perez, Vice Mayor, City of Huntington Park
San Luis Obispo County Tobacco Control Coalition
Santa Clara County Board of Supervisors
Smoke-Free Marin Coalition
Tobacco Education and Research Oversight Committee
Tobacco Free Glenn County Coalition
Six individual letters
Opposition
Apartment Association, California Southern Cities
Apartment Association of Greater Los Angeles
California Apartment Association
California Association of Realtors
East Bay Rental Housing Association
Nor Cal Rental Property Association
San Diego County Apartment Association
Santa Barbara Rental Property Association
Santa Monicans for Renters' Rights
Two individual letters
Analysis Prepared by : Lisa Engel / H. & C.D. / (916) 319-2085