BILL ANALYSIS �
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.
�This 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