City leaders seek to safeguard against excessive penalties, displacement if new law takes effect
A San Mateo County civil grand jury report that recommends cities take a more proactive stance in banning secondhand smoke in apartments, condominiums and other multiunit housing such as townhomes and fourplexes, is being taken seriously by East Palo Alto.
The City Council on April 2 voted 4-0, with Councilman Ruben Abrica absent, to direct staff to explore creating a smoking ban in multiunit dwellings. In a discussion before the vote, council members cautioned staff against drafting an ordinance that would further cause evictions or unfairly punish smokers.
The city's exploration of the subject is in response to the 2017-2018 San Mateo County Civil Grand Jury report "Smoke-Free Multiunit Housing: No Ifs, Ands, or Butts," which specifically recommended that East Palo Alto and other cities hold public hearings to evaluate restricting smoking in multiunit housing.
East Palo Alto already has an ordinance to prevent smoking in all buildings and other facilities owned, leased or occupied by the city, but it doesn't have any restrictions on smoking in multiunit dwellings except where common areas are open to the public, according to a city staff report. The city has 3,395 multiunit residences, according to the civil grand jury report.
Secondhand smoke from tobacco products contains more than 7,000 chemicals, including more than 50 carcinogens. It has killed an estimated 2.5 million nonsmokers in the U.S. since 1967, according to the U.S. Public Health Service's surgeon general. E-cigarettes, while not producing smoke, do make vapor that also contains many of these chemicals, and smoke from cannabis is also considered toxic and can impair blood-vessel function, according to the California Department of Public Health.
Passive smoke, another name for secondhand exposure, infiltrates apartments through vents, electrical outlets, floor boards and other gaps, making its control particularly important for children and pregnant women. It also remains deposited on furniture, rugs, clothing and drapery where hazardous chemicals remain long after a smoker has left an apartment.
Exposure to secondhand smoke is linked to cancers, asthma and other respiratory diseases.
Staff noted that East Palo Alto residents have been particularly impacted by asthma, a condition that can be caused or aggravated by smoke. City environmental management analyst Michelle Daher told the Rents Stabilization Board in March that her daughter was hospitalized due to her asthma after being exposed to secondhand smoke in an apartment. Others also spoke of their own illnesses and their suspicions that secondhand smoke may have contributed to the deaths of their loved ones.
Daher compiled county data for the years 2013-2015 that showed East Palo Alto residents made as many as 47.4 visits to hospital emergency rooms due to asthma compared to 32.7 visits for the county as a whole, per 10,000 adults ages 18 years and older. That number is 144.95% greater than the county rates. The percentage of East Palo Alto adults who were hospitalized due to asthma-related illness was 256% greater than that for the county overall. Among adults who had pediatric asthma, East Palo Alto adults had a hospitalization rate 364.29% greater than the county value per 10,000 adults.
Francesca Lomotan, San Mateo County Health Department's tobacco prevention program director, told the city council that the American Lung Association scorecard for cities has given East Palo Alto an "F" grade for smoke-free housing; a "C" for smoke-free outdoor air and a "B" for reducing the sale of tobacco products.
Her office is conducting a survey of East Palo Alto residents at Woodland Park Apartments to gauge their experiences with secondhand smoke and how they feel about a potential nonsmoking ordinance. Initial responses from 73 people found that 89% said the smell of smoke bothers them and 80% said they sometimes or often experience secondhand smoke. Asked whether they would support a smoking ban in multiunit apartments, 77% said "yes," 8% said "no" and 15% said they "don't know."
If East Palo Alto enacts an ordinance, it would join 10 jurisdictions within San Mateo County with smoking bans in multiunit housing, including Brisbane, Burlingame, Daly City, Foster City, Redwood City, San Bruno, San Mateo, South San Francisco and unincorporated San Mateo County. Belmont passed the nation's first ordinance in 2007, and other cities, including San Carlos, are currently examining similar laws, staff noted.
The ordinances prohibit tobacco and recreational marijuana smoke, with most prohibiting medical marijuana smoke. All prohibit e-cigarettes or "vaping," and all include condominiums except for Daly City. Most require a nonsmoking notice in leases.
The council had no objections to exploring a potential law with a caveat: Any ordinance should contain language that won't increase displacement of residents.
Councilman Carlos Romero said he is "quite concerned" that an ordinance would be used by landlords as an excuse to evict renters in rent-controlled units, which would then allow the rent to increase to market value.
City Attorney Rafael Alvarado also said that part of the criticism of these types of ordinances is they create additional opportunities for displacement of tenants.
But rent stabilization program administrator Victor Ramirez said staff would work on ways that keep landlords from unjustly evicting tenants and that it would not have to modify the 2010 rent stabilization ordinance, which doesn't include smoking as grounds for a just cause eviction.
The city could look to other ordinances for guidance on preventing eviction and intimidation and perhaps strengthen those provisions. According to the grand jury report, more than half of the existing nonsmoking ordinances in other cities within the county prohibit retaliation. In unincorporated San Mateo County, for example, residents seeking to comply with the ordinance "shall not be intimidated or harassed for doing so, and no person shall intentionally or recklessly expose another person to smoke in response to that person's effort to achieve compliance." It is also unlawful for a landlord or another person to take any retaliatory action against a resident for reporting a multiunit housing violation. By inference, that could include smoking violations. Staff would also look at multiunit nonsmoking ordinances in cities with rent-stabilization laws, such as Santa Monica.
Council members also instructed staff to look into ways to enforce the ordinance. Most of the cities with housing smoking ordinances give first-time violators an initial warning and repeat violators fines ranging from $100 to $1,000, according to the grand jury report.
In neighboring Palo Alto, the city enacted a no-smoking ordinance in multiunit dwellings in January 2018 that restricts smoking cigarettes, cigars, cigarillos, hookahs, pipes, electronic smoking devices "and any plant product intended for human inhalation including medical or recreational marijuana" inside the residences and in many common areas inside and outside of buildings. Landords must post signage and include notices of the ordinance in lease and rental agreements.
The city can enforce the ordinance by applying a nuisance law or imposing a fine that ranges from $250 for a first violation, $300 for a subsequent violation and up to $500 for each additional violation within a year.
Landlords in Palo Alto can also consider smoking a violation of the lease and "may be enforced accordingly," a city fact sheet noted.
But Romero was against overly punitive measures.
"I'm opposed to any fines. We are trying to move away from penalizing people of color or working-class folks," he said.
The city could work with landlords or the county's tobacco prevention program to bring tenants into compliance through education. Private citizens could also bring legal actions against neighbors who refuse to comply with the law, although Romero thought that might be too difficult for most tenants to deal with. One resident suggested the city could give out vouchers for nicotine patches or referrals to programs to help smokers kick their habits.
The council did not specify any date for staff to return with a framework for the ordinance.
April 18, 2019
Palo Alto Weekly
By Sue Dremann
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