Public Comment

Why I Voted No on Second Hand Smoke Ordinance

By Councilmember Jesse Arreguin
Friday October 04, 2013 - 04:22:00 PM

I just want to respond to Carol Denney’s recent commentary “Berkeley Boots Smoke Out of Multi-Unit Housing” to explain the reasons why I didn't support the motion a majority of the Berkeley City Council approved on Tuesday, to ask the City Manager to come back with an ordinance that enforces a smoking ban as a public nuisance. To clarify the Council did not approve an ordinance banning smoking in multi-family buildings, an effort we have been working on for years. Despite the fact that Walnut Creek is now the 27th city to pass a smoking ban for apartments, Berkeley will have to wait until staff comes back with a revised policy sometime in the next few months. 

Contrary to the way Ms. Denney portrayed it in her commentary, I did not oppose the motion because I am either against banning smoking in multi-family buildings, or because I did not want better enforcement of a law. 

To the contrary, I share Ms. Denney’s concerns that an ordinance that relies on “private right of action” will create neighbor-to-neighbor conflict and will not be an effective way of holding people accountable for violating a ban on smoking in apartments and condos. 

That being said where Ms. Denney and I disagree is not the goal but the way of achieving that goal. In the years that City staff, the Rent Board and the Community Health Commission have been crafting this policy, they have sought to accomplish two goals: ban smoking in all units while not creating incentives to evict long-term tenants. 

The policy that was brought to us by the City Manager and commissions was a compromise that struck that balance. It included a ban on smoking tied with a requirement for no-smoking lease clauses, smoking cessation, signage and notification. It sought to address the issue through education rather than conflict. However ultimately for those rental units where the lease includes a ban on smoking, the landlord could evict a tenant for smoking because of the required lease clause to prohibit smoking. Many rental units in Berkeley already have lease provisions banning smoking in units. 

The issue is with those units which preexisting tenants live in. Under city law a landlord cannot unilaterally change a lease without the agreement of the tenant. Keep in mind that under state mandated vacancy decontrol landlords can charge a market rent upon vacancy, so for long-term tenants who have lived in their units for 20+ years there are huge incentives for owners to push them out so that the landlord can charge a much higher rent. More often than not it will be those long-term rent-controlled tenants who will have leases that allow smoking and who may likely smoke. It would be preferable if smoking complaints were resolved informally rather than through court or eviction which is why I think that mediation should first be required. 

The motion that the Council majority adopted asked staff to come back with a law that declared smoking a nuisance. This is problematic on two levels. First, under Berkeley’s rent control law, if a tenant commits a nuisance it is automatic grounds for eviction. Second, contrary to what Ms. Denney claims, nuisance is also a cumbersome and time-consuming way of enforcement. It involves substantial staff time and notices, inspections, follow up, fines, and even subsequent action if someone does not comply. To think that nuisance will more effectively and quickly resolve smoking complaints is false. It is very staff intensive and takes time. Nuisance would however be a way around the issue of tenants who do not have a lease clause prohibiting smoking, it would allow owners to evict them if they smoke, and maybe that’s why its being considered. However what it will do is create a pretense for owners who want to kick out long- term tenants to get a new higher paying tenant. I do not object to holding people accountable for breaking a law, what I object to is using smoking as a phony excuse to evict someone so you can charge a higher rent. 

I am also concerned that if the ordinance will go into effect only a few months from when it is adopted, that there will not be enough time to educate tenants and landlords about the new law. 

Now that’s not to say that smoking is acceptable. It is not. It is very clear that there are significant health effects that result from second hand smoke and no one’s health should be at risk. 

So what’s the best way of achieving this? I believe we can accomplish both goals of protecting tenants from exposure to second hand smoke and not allowing landlords to have a pretense for evictions. 

Private right of action (taking your fellow tenant to small claims court) is not perfect and I believe that there is another way to have stronger and effective enforcement without creating a loophole so landlords can evict tenants. 

Here’s why I voted against the motion: Not because I oppose a ban on smoking in multi-family buildings, but because the motion the Council approved was hastily put together, and will have significant ramifications, that could be avoided by taking another approach. 

I object to this false dichotomy that we need to create incentives to evict long- term tenants to address smoking in buildings. We can find a way to stop smoking in buildings and not create incentives for owners for arbitrary evictions. I am personally committed and will work to find a solution that gives Berkeley the most effective smoke-free housing law in California. 

Jesse Arreguin is a Berkeley City Councilmember.