The Calabasas City Council last week gave final approval to an ordinance that expands its existing widespread outdoor smoking ban to regulate smoking in all rental units in the city.
According to an article in The Acorn, the ordinance "requires that at least 80 percent of apartment buildings be permanently designated as nonsmoking units by Jan. 1, 2012. Landlords are required to submit annual reports detailing the number and location of the units, beginning this July." In the article, Calabasas Mayor Pro Tem Sue Maurer was quoted as saying: "This ordinance is a perfect example of good government working in collaboration with business interests, health advocates and residents."
By my reading of the ordinance, it does indeed require that 80% of the units in all apartment buildings be designated as non-smoking. The remaining 20% may be designated as smoking units. However, it should be noted that any tenant who now occupies a rental unit may request that his or her unit be designated as a smoking unit, and that unit will not be counted toward the 20% maximum smoking units.
Most importantly, the ordinance makes the presence of secondhand smoke in a nonsmoker's apartment a nuisance and a trespass, but only if the transgression occurs in violation of the smoking ordinance.
The Rest of the Story
In my opinion, this ordinance is an example of a city government that has run amuck. It is an example of extremely poor public health policy that not only fails to achieve a significant public health purpose, but actually makes the problem much worse that it would otherwise have to be. It intrudes upon landlords' autonomy in the operation of their businesses without any valid public health justification. In fact, it ensures that secondhand smoke in apartment buildings, which may previously not have been much of a problem, now becomes a significant problem.
The stupidity of this ordinance can be understood by an analogy to a similar law that segregates smoking in a restaurant to a smoking and non-smoking section. If allowed to smoke randomly throughout a restaurant, the smoke will tend not to be heavily concentrated in any one area. However, by setting up a designated smoking section, the smoke in that area will be very concentrated. Thus, any nonsmoker sitting in the nonsmoking area adjacent to the smoking section will experience extremely high exposure to secondhand smoke. If a restaurant owner is not going to eliminate smoking in a restaurant, it makes little sense to restrict smoking to a particular area of that restaurant located in the same ventilated air space.
Under current conditions in Calabasas apartments, smoking is essentially randomly distributed and thus it minimizes the chances that levels of smoke in any particular apartment will be extremely high. However, if smoking units are all grouped in the same area, levels of tobacco smoke in those areas are going to be extremely high. This ensures that smoke in adjacent nonsmoking apartments is going to become a problem.
In other words, this ordinance maximizes, rather than reduces, the possibility that secondhand smoke is going to become a problem for some apartment residents.
Why would any nonsmoker want to live adjacent to the heavily concentrated smoking units in an apartment complex? But by definition, someone has to. For those people, there is going to be a problem with secondhand smoke, where one may very well not have existed before.
To make matters even worse, the ordinance specifically does not allow a nonsmoker any recourse if smoke does become a major problem due to his location adjacent to the smoking wing of an apartment building. While the ordinance may have, alternatively, declared secondhand smoke to be a nuisance and thus allowed some recourse - on a case by case basis - to nonsmokers affected by tobacco smoke from other units, it now precludes that possibility by declaring that smoke entering apartments from the designated smoking units is not a nuisance.
This makes it extremely difficult, if not impossible, for a nonsmoker who is suffering due to secondhand smoke in adjacent smoking units to do anything about it. If the nonsmoker complains to the landlord, the landlord can simply dismiss the complaint, noting that the landlord is in full compliance with city law and that city law does not consider the smoke entering the nonsmoker's apartment to be a nuisance.
The nonsmokers are actually better off without this ordinance, because at least there is some possible recourse is smoking in apartments is not regulated. But once the regulations specifically permit landlords to designate 20% of their units as smoking units, there is little recourse for nonsmokers who will now almost assuredly be affected by smoke, even if they weren't affected before the ordinance.
Another problem with the approach taken by this ordinance is that it doesn't allow flexibility for the landlord to alter the number of smoking units based on resident demand. The landlord has to submit an annual document to the city which specifies the smoking and nonsmoking units. It is not clear that the landlord can modify this document.
For example, what if there is a high demand for nonsmoking units and none are available. Can the landlord change a smoking unit into a nonsmoking unit? Does that unit have to remain unoccupied, and the landlord lose money, until he can find a smoker to occupy that unit?
What if the smoking units are filled up and a smoker wants to rent an apartment? Can the landlord notify a smoker that his unit is being changed to a nonsmoking unit so that he can accommodate the new tenant and maximize the occupancy? Can the landlord then cite the tenant for a violation if he continues to smoke?
And what incentive is there for a landlord not to simply go through the motions of notifying the smoker that he can no longer smoke in his apartment? According to the ordinance, as long as the landlord sends a note to the tenant stating that he cannot smoke, the landlord cannot be found in violation of the law.
If I were a landlord in Calabasas, I would get around this ordinance by simply designating 20% of my units as smoking and then whenever a new smoker wanted to rent, I would tell her that I would designate her unit as smoking and reclassify an existing smoker's unit as nonsmoking. Then, when the smoker continued to smoke, I would simply send the required notices and then forget about it. Since residents would already be used to smoking in that apartment, there would likely be no complaints.
This ordinance is not only insanity, but more importantly, it is completely unjustified on public health grounds. It ensures that tobacco smoke exposure of nonsmokers in apartment buildings is going to become a significant problem, and it deprives these nonsmokers of any recourse to redress the problem. Essentially, it institutionalizes the problem of tobacco smoke exposure among nonsmoking apartment residents.
Far from being a "perfect example of good government working in collaboration with business interests, health advocates and residents," this ordinance is a perfect example of out of control government which is so obsessed with the need to look like it is health conscious that it is actually institutionalizing the very problem that it claims to be trying to solve.