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The McConnell Report • August 1, 2008

Smoking Ban or Lifetime Entitlement - Which Is It?

Having defeated the Migden bill on requiring replacement units when a landlord goes out of business, some of you may have thought that Sacramento may be a safer place for landlords this year. That may not be the case. 

There is yet another piece of legislation in Sacramento that landlords should follow very closely. Strangely, this one is sponsored by the California Apartment Association (CAA). It deals with smoking in apartment units and many landlords think that it would unwittingly reduce landlord rights. 
 
SB 1598 was introduced by Senator Padilla at the urging of the CAA. According to the Legislative Analyst who prepared the Committee Report for the Assembly Judiciary Committee:
 
The original purpose of this bill, according to the author, was to codify the landlord's right to (prohibit smoking in apartments) and to provide clear language that would encourage more landlords to consider this option. The bill was therefore initially supported by a number of public health groups, including the American Heart Association, the American Cancer Society, and the American Lung Association, as a means of helping to combat the well-known health hazards of smoking and second-hand smoke exposure in apartment dwellings. For reasons recounted below however, these same groups now have felt it necessary to oppose the bill unless it is very substantially amended to return to its original purpose and contents.
 
Notwithstanding the author's well-known leadership and commitment to spearhead efforts to improve public health, few bills have had a more curious, and perhaps frustrating, evolution than this one. What began as an effort to encourage landlords to exercise an authority that they already have (to protect the health and rights of non-smoking tenants from second-hand smoke) has become a bill that, according to its previous supporters (now opponents) will ironically more likely make it more difficult for a landlord to exercise her or his existing authority to seek to address this public health concern. This has occurred as the author has apparently been required to add various amendments in order for the measure to remain alive-- amendments that carve out exemptions for rent control jurisdictions and seek to enhance the rights of existing smokers. Along this amendment journey the joint position of the American Health, Cancer, and Lung associations has moved from strong support, to cautious neutrality, to strong opposition unless amended. The bill is also opposed by regional apartment associations. However it remains supported by the California Apartment Association.
 
In support of the bill, CAA stated that "SB 1598 will clarify the law and encourage landlords to ban or restrict smoking of tobacco products inside rental units and in the common areas of their rental properties.”
 
But opponents counter that just the opposite will occur. They argue that the bill would reduce landlord rights to control smoking in apartment buildings. 
 
As the law now stands, owners have the right to control whether they allow smoking in rental units. They can do that through a ban on smoking in their lease agreements and, in cities that do not have rent control, they can ban smoking by a change in the terms of tenancy with a 30 day notice under the Civil Code.
 
If this bill passed, owners would not be able to change the terms of tenancies on existing tenants under the Civil Code in any jurisdiction. Also, in rent control cities, owners would be prohibited from imposing a ban on smoking in units where the prior tenant was a smoker, if the prior tenancy did not end in a voluntary vacancy.
 
The Apartment Associations of California Southern Cities and Orange County are crying foul. They contend that “this bill is unnecessary because owners of residential rental properties can, under current law, already establish no smoking areas, including inside dwelling units, within their property”. They argue against the bill because every tenant who smokes is grandfathered in and cannot have their rights to smoke eliminated by the landlord. As such, rather than clarifying or expanding rights, this bill, in their view, takes rights away.
 
The Western Center for Law and Poverty is also listed as opponents of the bill, albeit for different reasons. Their complaint is that low income people smoke more than others and landlords will use the law to evict low income tenants from rental units.
 
This concern, in my view, is not as strong as the landlord basis for opposition. In cities that do not have just cause laws, landlords have the right to evict without cause and would likely use that process rather than run the gauntlet of proving that tenants were smokers. In jurisdictions with just cause, few owners try to evict for material breaches other than non-payment of rent. This is because the cost is just too astronomical and the perils of losing an eviction are many.
 
Another section of the bill that has some landlords even more outraged states that while the bill does not allow landlords to change terms of tenancies for existing tenants, it gives cities the authority to pass laws to ban smoking. This means that that a landlord cannot control whether sitting tenants can smoke in their properties, but cities can.  And in what is even more diabolical, behind the scenes, Sheila Kuehl is demanding that if cities make changes then tenants must be given a one year notice before their rights are changed.
 
In a red alert, AACSC and Orange County apartment associations condemned the bill as an erosion of landlord rights and attacked the prospect of a one year notice provision as the proverbial camel’s nose under the tent. If one year notices are required for smoking bans, they question whether one year notices will soon become necessary for rent increases and other changes of terms of tenancy. Who knows? But the ever cagy Sheila Kuehl probably has her eye on that possibility.
 
As a lobbyist who worked on many bills in Sacramento, I know how difficult it is to get something passed and I know that the process includes many challenges and demands for amendments. So, I do not wish to be overly critical; nevertheless, before legislation goes forward groups should adhere to the old adage – first do no harm. In other words, do not pursue legislation to assert rights that actually exist if the unintended consequence is having those rights taken away.
 
Update:
 
After this article was written, the bill was scheduled to be heard by the Assembly Judiciary Committee, but based upon an uproar of opposition from health associations and apartment associations, it was pulled from Committee. Whether the author and CAA will try to further amend the bill and reintroduce it, remains to be seen. 
  
 
Greg McConnell is the principal consultant at The McConnell Group, a consulting and advocacy firm that specializes in housing issues and advises apartment and housing associations, property management companies, and individual owners throughout California. For more information please visit www.themcconnellgroup.com.
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