So you thought mold was a hassle– well, welcome to smoke. Not the kind that you think about coming from a fire, but the cigarette type. As usual, the government is blaming Housing Providers (“HP”) for the city’s failure (lack of courage) in dealing with the issue. The City of Santa Monica has recently passed a new law outlawing smoking in common areas in residential buildings. However, the HP cannot evict the tenant for violating this law. The City has declared secondhand smoke to be as serious a threat to health as live ammunition, but rather than giving the HP some authority to enforce the no smoking law, the City has seen fit to just make noise, and hide behind their ramblings.

The City is worried that its long term tenant supporters will be evicted from their units (and thus not be around to vote for SMRR) if there is a no smoking law on the books. The SMMR City Council knows that its smoking supporters do not have any respect for the law, and will not stop smoking just because the City passes a law outlawing smoking in apartment buildings. The SMRR City Council members have decided it is better for them to be reelected to office, than for people to be protected against secondhand smoke. Clearly, there has to be priorities, power first, health last. We address in detail the new City law, since it requires HP to post and mail notices to tenants. We ask “Why couldn’t the City do the mailing?”

However, that is not the end of the HP’s problems with smoking. A recent lawsuit arising within the Oakwood Apartments in Woodland Hills brought us this very recent California Court of Appeal decision, Birke v. Oakwood Worldwide (January 12, 2009) 2nd District, Division 7. This case has held that the HP (yes, you have read correctly) is responsible for preventing secondhand smoke from reaching tenants. The HP can be liable (as in getting sued for money) if the non-smoking tenant is bothered by the smoke. Don’t think ACTION did not see this coming. ACTION has been warning members that lawsuits about smoking are just the newest thing around the corner. ACTION has placed in its recommended rental agreement, a paragraph about no smoking in common areas. ACTION was considering a paragraph that prohibited any and all smoking on the property (inside the tenant’s units as well as the common area) but based on a consensus of its more vocal members, elected for the more conservative approach. Some large apartment building owners have imposed a no smoking ban inside apartment units as well as outside. See for instance Guardian Management in Portland, Oregon with 8,000 units.

The City of Santa Monica’s approach (no eviction for offending smokers) may have to be reconsidered by HPs based upon the recent case. In Birke v. Oakwood the tenant had his child (what could be more sympathetic) sue the HP because the HP refused to take measures to protect the child from all secondhand smoke in the common areas. The building owner claimed that it did not have a duty to protect tenants from smoke. The court opinion started with the statement: “The public nuisance doctrine is aimed at the protection and redress of community interests and, at least in theory, embodies a kind of collective ideal of civil life, which the courts have vindicated by equitable remedies since the beginning of the 16th century.” Any time the court goes back to the beginning of 16th century (i.e. 1501) you know you are in trouble. According to the Court, to be a public nuisance the offense must be both “substantial and unreasonable” as the court found secondhand smoke to be. The court further found that Civil Code Section 3479 (which defines public nuisance) clearly defines secondhand smoke. Finally, the court held that the building owner could be liable for its failure to act (i.e., acts of “omission”) rather than just any affirmative action. The court held that the owner “as the Birkes’ landlord, Oakwood plainly has a duty to maintain its premises in a reasonably safe condition.” Now, this case can easily be cited for the holding that any secondhand smoke that reaches into a tenant’s apartment unit (as opposed to the common areas) also creates a nuisance, subjecting the HP to liability. There was nothing unique about the fact that the tenant was complaining about smoke in the common area (as opposed to smoke inside his unit) in the decision.

The court held that the child had pleaded a cause of action for nuisance. The court held the HP could be found negligent (i.e., may have to pay money) to the child because the HP did not insure that no smoke reached the child while the child was on the property. How can a HP prevent smoke from one tenant’s unit drifting into the neighbor’s unit? Only by banning all smoking on the property. Naturally, the HP is in a bad position here. The HP is responsible for something that cannot be stopped. The City of Santa Monica will not give the HP authority to evict a smoking tenant, but the court requires the HP to prevent secondhand smoke from reaching other tenants.

Other state courts have held that HP must stop the smoke for intruding into a tenant’s unit. In Oregon, a case entitled Fox Point Apt. v. Kipples (1992) No. 92-6924 (Or. Dist. Ct. Lackamas County) held that a tenant who was sensitive to secondhand smoke could successfully maintain that her landlord breached his duty to make her apartment habitable by allowing a smoking tenant to move into the apartment below her. The plaintiff suffered swollen membranes and respiratory problems as a result of the secondhand smoke. A jury unanimously found a breach of habitability, reduced the plaintiff’s rent by 50 percent and awarded damages for the plaintiff’s medical bills. In another case, (1998) 50-58 Gainsborough St. Realty Trust v. Haile No. 98-02279 (Boston Housing Ct. 1992 reprinted in 12 TOBACCO PRODUCTS LIABILITY REPORTER 2.302 (1998) the Boston Housing Court held that secondhand smoke was serious enough intrusion to breach the covenant of quiet enjoyment and the covenant of habitability.

On the other side of the coin, past cases have held that smokers have no rights, and that smoking is not protected under the U.S. Constitution. [Yes, sorry Jim]. The courts have ruled that even if a policy singles out or places particular burdens on smokers, individually or as a group, the policy does not in and of itself violate the Constitution’s Equal Protection Clause (NYC Clash Inc. v. New York, 315 F. Supp. 2d 461 (S.D.N.Y. 2004). Other courts have said simply that “there is no state or federal constitutional right to smoke” (Kurtz v. City of North Miami, 653 So.2d 1025 (Fla.1995)) and “[t]here is no more a fundamental right to smoke cigarettes than there is to shoot up or snort heroin or cocaine or run a red light (Fagan v. Axelrod, 550 N.Y.S.2d 552, 559 (1990)). An addiction to tobacco, nicotine or smoking is not considered to be a disability under the Fair Housing Act or the Americans with Disabilities Act. In fact, the U.S. Department of Housing and Urban Development (HUD) has specifically stated that smokers are not a protected class under federal fair housing regulations. While HUD (and thus Section 8 contracts) has not promulgated a policy with regard to smoking, it has said that it leaves the authority to regulate smoking in multifamily dwellings to individual property owners as long as those policies are consistent with applicable state and local laws. According to HUD, rules restricting smoking in rental housing must be “reasonable” and express a legitimate concern for the safety of residents and the condition of individual apartment units and the property generally. For example, a reasonable policy would “grandfather” existing residents or amend leases upon renewal, not during an existing lease term. It should be noted that Santa Monica Housing Department allows the HP to prepare its own Section 8 rental agreement. Thus a no-smoking clause in that agreement should not raise objections from the department. We will see.

It is going to be just a short while before California courts hold that allowing secondhand smoke to enter into tenants’ apartment units is a private nuisance, and a breach of the covenant of habitability. This will mean that the owner can be sued for damages, and that the tenant can perhaps stop paying the rent because the apartment unit has become uninhabitable.

Back to Santa Monica’s Answer to the Problem
But the Santa Monica City Council has (by mistake no doubt) maybe already passed laws dealing with smoking that seem to apply to the interior of tenants’ units, and which can be used to prevent tenants from smoking within their units. Check out Santa Monica Municipal Code Section 4.44.020 Prohibitions: (a) Smoking in Specific Locations. “It shall be unlawful to smoke in the following places: (8) Within twenty feet of the entrance, exit or open window of any building open to the public.” Now, one inquiring mind asks, why isn’t this applicable to doors and windows in an apartment building if the building is open to the public. Thus if a tenant’s unit is within the dead zone listed above, the tenant is not allowed to smoke within tenant’s unit. The City has already declared that apartment buildings are open to the public for purposes of invited organizational activities. And furthermore, if the HP declares the building open to the public, then why wouldn’t this law apply?

The City’s New Ordinance
There is a new law in town: Section 4.44.040 Smoking In Multi-Unit Common Areas. The law requires the owner of all apartment buildings and the HOA Board in any condominium project to provide notice of the fines imposed by this new law by doing the following: (1) “posting one or more prominent signs in a conspicuous locations in each Multi-Unit Common Area” and (2) “serving written notice on each unit.” The City then follows up with “(c)(1) Nothing in this section may be used as grounds to terminate a tenancy. Nothing in this section shall render smoking in Multi-Unit Common Areas a violation of law pursuant to any rental housing agreement.” The law further allows the owner to designate a smoking area in a common area as long as it is located 20 feet from any indoor area; 20 feet from any play or recreational area; and no more than 25% of the total outdoor area of the premises of the property. (Note this is not the same as 25% of the “Common Area”). The fines are pretty weak. The law states that “any person who smokes in a Multi-Unit Common Area is subject to a minimum fine of $100, which can be collected by any person.” The fine is increased to a minimum of $200 for the second violation within one year. The fine is increased to a minimum of $500 for the third and subsequent violation(s) within one year. (It is not clear as to whether the smoker has to have been fined once or twice before, or only that the smoker has smoked once or twice before in the common area). The City code states that before a lawsuit can be brought, the complaining party must have made a good faith attempt to resolve the situation informally, including giving of written notice of the city section (i.e. 4.44.040) at least 30-days before filing a lawsuit.

The City has defined Multi-Unit Common Area as (b) “Any indoor or outdoor area at a multi-unit residential property (including rental properties and condominiums) that is accessible to and usable by the occupant of more than one unit, including but not limited to halls, walkways, lobbies, laundry rooms, common cooking areas, outdoor dining areas, patios, play areas, swimming pools, gardens, and parking lots.” We would add “subterranean garages” as well. Now what about a fenced off patio next to a playground? Since it is not a common area, the tenant would be allowed to smoke there. There are many other examples of the poor wording of this law. Too many to discuss here.

The City’s new law, requires the HP to post a sign which explains part of the City’s new law, and to mail notices of the law to each unit as well. The law states in relevant part: “4.44.040 (b) (1) posting one or more signs in conspicuous locations in each Multi-Unit Common Area and (2) mailing notices to each unit.

Well, the city’s ordinance is just wonderful. Say the Owner has a video camera on the common areas, and see that someone is smoking therein. Note that the person suing does not have to be a tenant of the property, and the person smoking does not have to be a tenant of the property. After seeing the smoker smoking on tape, the owner approaches the smoker (tenant or not) and gives the smoker the written notice and begs the smoker to stop. After the smoker does it again, it is economic pay dirt for the owner or the person who wishes to sue.

Based upon the lack of protection afforded by the City law to HPs and the obvious liability to HP (as shown by the Birke v. Oakwood Worldwide case discussed above) the HP should seriously consider independent action. There is another way to combat smokers and protect oneself from liability as well. The HP can send a 30-day written notice to the tenant that smoking is prohibited everywhere on the property (including within the tenant’s unit) because it is a public nuisance under state law, and also local rent control law section 1806 (a)(3). This section reads: “The tenant is committing or expressly permitting a nuisance in, or is causing substantial damage to, the controlled rental unit, or is creating a substantial interference with the comfort, safety, or enjoyment of the landlord or other occupants or neighbors of the same.” Isn’t this provision just tailored made for smoking? If a HP wishes to outlaw smoking altogether on the property and sends the correct 30-day notice, the HP would not be evicting the tenant for a violation of the rental agreement, but rather for creating a nuisance and violation 1806(a)(3). The 30-day notice is just to put the tenant on notice that the HP has come to the conclusion, after reading all the governmental material on smoking that it is so dangerous that it constitutes a state nuisance. This approach avoids the limitations of the City’s new law 4.44.040 (c)(1) as set forth above. In this situation the tenant is being evicted because the tenant is creating a nuisance, not because the tenant is violating the City’s new law. As to tenants who currently have rental agreements that outlaw smoking (either in common areas or within their units– thank you ACTION) this new City law does not reduce the ability of the HP to evict the tenant for violation of the rental agreement. The City law only prohibits a HP from using the City law itself as grounds for eviction. Note that the HP in the rental agreement prohibiting smoking, or in the new 30-day notice declaring smoking to be a public and private nuisance, has established that smoking is so dangerous that it should not be conducted anywhere on the HP’s property.

The HP would be in good company. The city council as late as March 2008 declared in ORDINANCE NUMBER 2072 (CCS) as follows: “Smoking is hazardous to health; secondhand smoke is a significant public health hazard and the most dangerous class of carcinogen; secondhand smoke causes 3,000 lung cancer deaths per year among adult non-smokers in the U.S., and coronary heart disease in non-smokers. Secondhand smoke is especially hazardous to particular groups, including those with chronic health problems, the elderly and children; smoke causes children to suffer from lower respiratory tract illness, such as bronchitis and pneumonia, exacerbates childhood asthma, and
increases the risk of acute chronic middle ear infection in children.”

Knowing what the City knows, how can we allow tenants to smoke on our properties?

There are other similar laws in our state dealing with secondhand smoke. Health and Safety Code section 118947 makes it illegal to smoke inside a car that contains a minor (17 years or younger).

It is not just the City that hates smoke. The state of California has determined that (1) More than 440,000 people die in the United States from tobacco-related diseases every year, making it the nation’s leading cause of preventable death. (2) More than 40,000 people die from tobacco-related diseases every year in California. Secondhand smoke is responsible for an estimated 38,000 deaths among nonsmokers each year in the United States, which includes 3,000 lung cancer deaths and 35,000 deaths due to heart disease and cancer in humans. (4) Secondhand smoke exposure adversely affects fetal growth with elevated risk of low birth weight and increased risk of Sudden Infant Death Syndrome (SIDS) in infants of mothers who smoke. (5) Secondhand smoke exposure causes as many as 300,000 children in the United States under the age of 18 months to suffer lower respiratory tract infections, such as pneumonia and bronchitis; exacerbates childhood asthma; and increases the risk of acute, chronic, middle-ear infections in children. (6) The California Environmental Protection Agency has included secondhand smoke on the Proposition 65 list of chemicals known to the State of California to cause cancer, birth defects, and other reproductive harm.

SB 1598 (June 2008) would have allowed a HP to declare the building smoke free, but the law was amended to exempt rent controlled units. More of the same rent control politics. If it is so bad, how is it that we are going to allow rent controlled tenants to continue to smoke and kill other tenants and those other tenants’ children? The answer of course is that it is politics as usual.

Remember, the city of Santa Monica has REQUIRED Housing Providers to post their buildings with signs. Yes, more signs, and to send letters to all the tenants. ACTION has a form sign and paperwork for the HP to use to comply with this new law.