Berkeley City Council may finalize the law making it illegal to smoke in any multi-unit building in Berkeley on Tuesday December 3. Councilman Arreguin is making one more attempt to ensure the new law treats owners and renters equally. His suggestions also include more information to guide new renters, such as a registry of rental units and their smoking history, requiring owners to post signs, and that smokers receive warnings before they are fined.

Arreguin’s proposal – Council Item 28 – includes the radical suggestion that Berkeley actually allocate city staff to enforce the law!

You can see both smoking items on the Council agenda here (#28 and #30)

Here is a summary of Arreguin’s item:

28.  Referral to City Manager: Amendments to Tobacco-Free Multi-Unit Housing Ordinance (Continued from November 19, 2013)
From: Councilmember Arreguin
Refer to the City Manager for incorporation in a draft Tobacco-Free Multi-Unit Housing Ordinance the following proposals: 1. Delay the effective date of the ordinance to May 1, 2014, rather than March 1, 2014 as previously directed by the City Council, so that staff has adequate time to draft amendments based on this referral and bring back a final ordinance for Council adoption. Also delay the requirement that landlords notify tenants effective January 1, 2014. A delayed implementation date would also provide enough time for the city to conduct outreach to owners and tenants of the new requirements and increase smoking cessation resources before the ordinance goes into effect. 2. All initial leases or rental agreements signed on or after May 1, 2014 shall include language expressly prohibiting smoking in the units or in any common areas of a multi-unit residence. 3. That all initial leases or rental agreements signed after May 1, 2014, also notify tenants which units in the building do not have leases which expressly prohibit smoking. 4. Failure to provide either of the lease provisions noted above will allow the new tenant to break the lease without penalty.  (the language proposed by the Manager on October 1st along with the modifications proposed by the Rent Board on October 1st suffices). 5. That the City or Rent Board actively encourage and try to get tenants to sign voluntary lease addendums which prohibit smoking. Any voluntary lease addendum should be on a City/Rent Board developed form. 6. That the Rent Board establish and maintain a registry of all rental units in multi-unit housing indicating which units have leases that expressly prohibit smoking & require owners to notify the Rent Stabilization Board of lease provisions prohibiting smoking, and that the city require that owners of units registered with the Rent Board and those that aren’t registered provide information on which units have no-smoking lease clauses. 7. That owners be required to post signs in common areas of all multi-unit housing indicating smoking is prohibited. 8. That the City allocate staff to enforce violations of this ordinance through an initial investigation, written warning and followed by progressively increasing fines of $250, $500, $1000 and $1,500 for each infraction. Consistent with the previous staff drafted ordinance, there should be a cap on the number of private right of actions that any individual resident may file in a year against another smoking resident. 9. Includes the private right of action but strengthen it by allowing each resident to collect no more than $1,000 in a calendar year through private right of action. Doing this allows us to show that we are not tolerating or condoning smoking but believe that real financial penalties (rather than an unequal risk of lost housing) should be an appropriate penalty that can be applied in a more uniform way. Also making a violation the ordinance an infraction does not give an owner automatic grounds to evict a tenant. Also include the mandatory mediation provisions included in the ordinance proposed by the Manager on October 1, 10. Warnings be required by landlords and by the City before any enforcement action can be taken. The City Council should authorize sufficient staff and a funding source for proper enforcement and outreach. Previously, the City Manager indicated such a program would cost in the neighborhood of $120,000 annually to implement. Councilmember Maio indicated that the inspectors associated with the Rental Housing Safety Program be charged with implementing the Ordinance. If the RHSP fee were increased by $5 per unit, there would be sufficient resources to fund the necessary staff to implement the provisions of the Tobacco-Free Multi-Family Housing Ordinance I am proposing. If there needs to be a specific nexus between a no smoking ordinance and the RHSP program, City staff should explore amending the housing code so that smoking is a violation that can be cited and enforced by RHSP Housing code inspectors.

Berkeley Patch:

SF Gate Blog:

San Francisco Chronicle:

On October 1, City Council rejected the long process between the Rent Board and the Health Commission and decided to draft new antismoking legislation on the fly. Staff has to come back with actual language, but it is very likely that Berkeley will make it legal to evict tenants for smoking cigarettes, even if the lease has allowed smoking for years.

The new laws will also apply to owners who live in multiunit buildings, for example an owner-occupied unit in a building which also has rental units, or a condominium. However, owners can’t be evicted, and tenants can!!  The City Council keeps saying they want a law that can be enforced, but this latest plan puts the obligation to enforce the law onto landlords. Who will enforce the law against owners who smoke?

QUOTE_100813BTU hasn’t taken an official position, in part because the draft that was going to Council last week balanced concerns about protecting housing with the needs of those who are impacted by secondhand smoke. Now one big concern might be that the phase-in period for the law hardly gives long-term addicts the time to successfully quit. Also, landlords are far more likely to enforce the smoking ban against long-term tenants with controlled rents, while not acting to protect other residents from second-hand smoke if the smoker is paying a high price for his or her unit.

If you are concerned one way or the other, contacting Linda Maio would be a good place to start. It sounded like she is very in favor of the new rules to define smoking as a nuisance. Email her: 

Councilman Arreguin’s Explanation of His Concerns for Tenants:–By-Councilmember-Jesse-Arreguin

Daily Californian Report on Council Meeting:

100113The Berkeley Tenants Union has no position on the emerging legislation to make cigarette smoking illegal in all multiunit buildings in Berkeley. This hot issue pits neighbor against neighbor, especially since the City Council’s draft only has one enforcement mechanism: take your neighbor to small claims court!

Requests from the Rent Board and other constituents for the city to require mediation have not been included in the rules, which would make smoking in or around their buildings illegal for tenants and condominium owners, even if smoking is allowed in the lease or homeowner’s agreement. Smoking will be prohibited in all new leases.

Possible changes to the current draft of the law which are discussed in the Council report:

  • Mandating mediation
  • More aggressively enforcing the Ordinance
  • Defining smoking in multi-unit housing as a nuisance to allow evictions
  • Requiring a registry of units with non-smoking clauses in their leases
  • Including medical cannabis smoking

The Berkeley City Council will finally vote on the controversial law at their meeting Tuesday, which begins at 7 PM at 2134 Martin Luther King Jr. Way and will be broadcast on the web, cable TV and 89.3 FM. The current draft does include some increased support for smokers trying to quit.

Our elected Rent Board has been under fire from at least one antismoking advocate. The Commissioners expressed concerns that defining smoking as a nuisance would lead to evictions, pushed for mediation to be mandatory before law suits are filed, and also requested that the city enable their department to provide tracking so prospective tenants would know if they are applying for a unit next door to a smoker and/or if smoking happened during the previous tenancy:
May 7 Smoke-free Housing Council final

Health advocates say the law doesn’t go far enough to protect renters from second hand smoke:–By-Carol-Denney

Council materials, see Item 10: