South Pasadena Limits Smoking in Multi-Unit Residences

Moving forward with efforts to promote clean air in South Pasadena, the City Council enacted an ordinance prohibiting smoking in and around multi-unit residences, effectitve Sept. 4.

In doing so, the city officially declared second-hand smoke "a nuisance and a trespass."

The new ordinance forbids smoking in indoor or outdoor common areas, with the exception of designated smoking areas, which must not be within 25 feet of doorways, windows, vents or any other openings connected to non-smoking areas. 

The ordinance also bans smoking in "new units" in any type of multi-unit housing, including private balconies, porches, decks and patios. 

Some of the more far-reaching provisions will go into effect several years down the road. Beginning in January 2013, smoking will be prohibited within all existing apartment units and in all existing condo units as of September of that year.

There are some exceptions. Homeowners' associations may vote to allow smoking in up to 20% of condo units, provided they do so before June 2013. Similarly, landlords may allow smoking in up to 20% of units in an apartment complex.

South Pasadena City Council members Michael Cacciotti, David Sifuentes, Mike Ten and Mayor Richard Schneider all voted in favor of the ordinance. Council member Philip Putnam voted against.

Asked about his nay vote, Putnam--a partner at the Law Offices of Monteleone & McCrory--said that he supported most of the ordinance's provisions—such as the 25-foot buffer zone—but had to vote against what he called an "all-or-nothing ordinance" on principle.

"There are some philosophical issues when you tell people what they can and can't do in their own homes," Putnam said.

He would have liked a larger distinction made between owners and renters. "People in condos already have homeowners associations, they have ways to protect themselves," Putnam said. "They already have a right to self-governance."

Putnam takes particular issue with the 20% cap on smoking-friendly units. "Many of the multi-unit buildings in South Pasadena are duplexes or fourplexes, many of which are occupied by the owner of the property, and now we're telling the owners they can't smoke in their own houses," he said. "Eighty percent is 100% in these cases."

For his part, Assistant City Manager Sergio Gonzalez says the ordinance is just one step in the city's larger Clean Air initiative, which so far has banned smoking in public parks and in the outdoor patios of restaurants and required city employees to consider low-emission vehicles first when buying a car, a measure which has been adopted by the San Gabriel Valley Council of Governments.

Next on the horizon is legislation requiring leaf-blowers to be certified by the California Air Resources Board. "I think South Pasadena wants to be in the forefront of promoting clean air," Gonzalez said.

According to Gonzalez, Cacciotti has spearheaded many of these clean air measures. He has also promoted tougher smoking regulations with the aid of Smokefree Air for Everyone, including a forthcoming effort to make it illegal to sell cigarettes within 500 feet of schools.

Gonzalez says that ordinance is still several months away. "We're working with the planning commission right now, because it's a land-use issue," he says.

Cacciotti echoed many of Gonzalez's sentiments, but was more openly opposed to the practice of smoking. "Statistics don't lie," he said, referring to the high rates of death and disease, and the corresponding economic burden, associated with smoking.

He told a story of attending a 100-year-old's birthday party a year ago. One of the guests, he said, was a young, asthmatic girl who lived in a condo complex upstairs from a smoker and was severely affected by the smoke.

"Even third-hand smoke—from clothes and such—can affect people," Cacciotti says. "If someone is 100 feet away, and they're a smoker, and the wind changes, I'll smell them from that distance."

Asked about Putnam's concern for the property rights of duplex and fourplex owners, Cacciotti said he thought it was a good point. "The intent of the law is to protect people, and I think we achieved that, but I'd be open to minor refinements," he says. "It may need some tweaking, and if it does, we'll do it."

Anyone caught smoking in violation of the ordinance can be fined $100. Other violations—such as a landlord's failure to post "No Smoking" signs in common areas—can result in a fine of anywhere from $250 to $1,000, while privately brought civil actions can result in either court-awarded damages or $500 for each violation in the absence of damages.

Both Gonzalez and Putnam anticipate some difficulty in enforcing the ordinance. "There aren't a lot of funds out there," Gonzalez said, "It's a quality of life issue, but likely won't be high on the peace officers' list." Gonzalez said the city hopes to work closely with landlords to enforce the ordinance and added that by officially declaring second-hand smoke a nuisance, the ordinance "empowers residents to enforce it themselves" by seeking legal recourse. 

Putnam was more direct. Asked if the ordinance was likely to be heavily enforced, he replied, "I doubt it. How could they enforce it? They'd have to get a warrant."

He referenced a recent Citybeat column in the Pasadena Star-News, in which former interim Pasadena Police Chief Chris Vicino said, "Cops have better things to do than enforce smoking laws." Noting that rigorous enforcement would require the police to venture often onto private property, Putnam said, "If this ordinance were strictly enforced according to its provisions, you would see a hue and cry in the city of South Pasadena."    

Asked about the enforcement issue, Cacciotti was not as pessimistic. "It'll be enforced reasonably," he said, "there's always going to be difficulties with the enforcement of any law."

South Pasadena native and occasional smoker Tim Halleran expressed measured approval for the ordinance. "Bottom line: smoking indoors is gross," he said. "If you have ever owned a piece of furniture from a house-broken smoker you know what I'm talking about." Nevertheless, he was skeptical that the ordinance would have much affect on public health, saying "Is this even a symbolic win from an environmental toxicology stance? I doubt it." Mr. Halleran presently works for an Environmental Services consulting firm in San Antonio, Texas. 

At the 40-unit Lanai complex on Amberwood Drive, apartment manager Mary Lopez cautiously approved of the ordinance. "I guess it's OK, it's good," she said. "I don't smoke, but my boyfriend does. I have no problem, as long as those that really need to can still smoke."

She estimated that only a handful of her tenants smoke—around 20%. They expressed no obvious displeasure upon being informed of the ordinance, she added. "I see a couple of them on the sidewalk at times," she said. "No one has complained either way."

Compliance has been easy; so far, Lopez says she has only had to put a sign up. Asked what she planned to do when the outright ban goes into effect in 2013, she said it is the management company's decision, not hers.

Finley Beven, one half of the property management company Beven & Brock, said they are likely to let all their South Pasadena apartment properties become non-smoking.

"It's the easiest way to go," Beven said. "It'll be much harder to fill a vacancy" in a block of all-smoking units. Beven has not heard complaints from smokers so far. He expects, however, to hear from non-smokers. "The only problem I anticipate is tenants who don't smoke, and now their neighbors do—most of our buildings have no resident manager, no onsite policeman," he said.

Tough anti-smoking laws are nothing new in California. According to a July 2009 report by by California's Center for Tobacco Policy and Organizing, a special project of the California branch of the American Lung Association, the city of Richmond has the "strongest smokefree housing ordinance in the nation."

Like the South Pasadena ordinance, it prohibits smoking in 100% of units in multi-unit residencies, including duplex condominiums. Unlike the South Pasadena ordinance, however, the Richmond ordinance does not allow landlords or homeowners associations to make any exceptions to the law.

Nor does it contain a nuisance clause, as do the ordinances of South Pasadena and Belmont, another city with a tough anti-smoking law. Belmont's ordinance, however, excludes single story multi-unit housing from its definition of "units."

Though it is not the first or the strongest ordinance, Mr. Gonzalez believes South Pasadena's is "the most comprehensive ordinance in the state, if not the nation." The city was provided a template for the ordinance, according to Mr. Gonzalez, by the Technical Assistance Legal Center. The city then modified it, working out some of the kinks that other cities have dealt with. "Following other cities allowed us to make it better for our city," Mr. Gonzalez said.

To read the ordinance, click on the .pdf file in the photo viewer above.