Berkeley bans tobacco smoking in apartments, condos

Berkeley residents who live in buildings with more than one unit will no longer be allowed to smoke inside beginning in May 2014. Photo: Damian Kennedy

Berkeley residents who live in buildings with more than one unit will not be allowed to smoke inside beginning in May 2014. Photo: Damian Kennedy

Smoking cigarettes will no longer be allowed inside the units of multi-family housing developments in Berkeley, effective May 2014, after a unanimous vote by the Berkeley City Council on Tuesday night.

The council decision, once it’s adopted on second reading, would prohibit tobacco smoke inside all residential buildings that have more than one unit, and in all common areas of those buildings as well.

After considering the issue twice earlier this year, the council voted, on first reading, to approve the new ordinance, which puts forward enforcement guidelines that officials hope will protect the rights of both non-smoking neighbors as well as residents who receive complaints.

The ordinance includes processes for tenants to get smoking cessation services, and an outreach and education campaign about the law, that will be in effect through December 2016. City staff will provide sample language about the ordinance and its enforcement to landlords to help spread the word.

Serena Chen, regional advocacy director in Oakland of the American Lung Association, told the council that, by her count, Berkeley would be the 17th city in the nation to pass an effective smoke-free multi-unit housing ordinance.

“But you will be the first city to enforce it right,” she added. 

Beginning in May, new leases for all tenants will include mandatory non-smoking clauses. Existing tenants will be offered a voluntary non-smoking addendum to their leases. (Read an overview presented by city staff to council Tuesday night.)

One challenge to the ordinance previously had been how it would be enforced equitably and who would be responsible for enforcement. Staff explained the process to council members Tuesday night.

Under Berkeley's new tobacco-free multi-unit housing ordinance, a smoking resident would not receive a citation unless the city receives complaints from multiple residents. Image: City of Berkeley

Under Berkeley’s new tobacco-free multi-unit housing ordinance, a smoking resident would not receive a citation unless the city receives complaints from multiple residents. Image: City of Berkeley

Under the new law, upon receipt of the first complaint about a resident smoking indoors — which must be made in writing using a city form — staff would send a notice to alert the resident about the complaint and provide information about the rules.

If, within six months, the city receives additional complaints from two residents in two separate units about that same smoker, the city could issue a ticket or an infraction.

Smoking is already banned in the city’s commercial zones, and “Berkeley has implemented bans on smoking in public places such as restaurants, bars, grocery stores, and parks,” according to Tuesday night’s staff report.

Council members Jesse Arreguín and Max Anderson expressed concern about the use of the infraction as a method of enforcement, because it would send involved parties to court and potentially pose significant problems for residents singled out as smokers, justly or otherwise.

Arreguín asked staff to include language that would require complaints to made under penalty of perjury to raise the bar for honesty in the process.

“One of my concerns was, what’s there to stop someone who just doesn’t like their neighbor from using this to file a complaint,” Arreguín said Wednesday. “We don’t want to create incentives for the ordinance to be abused.”

(Arreguín also clarified Wednesday that he is not seeking a city-wide smoking ban in all Berkeley housing, an idea that was raised in a San Francisco Chronicle story in November. Arreguín staffer Anthony Sanchez said Wednesday that the idea had been raised rhetorically to question why the council had limited the scope of the smoking ban to residents of multi-family housing, and whether this signaled an unfair focus on tenants vs. single-family homeowners. Sanchez said the idea had not been an official proposal of any kind, despite what he described as its mischaracterization in the Chronicle.)

City attorney Zach Cowan and city manager Christine Daniel assured council members that, under most circumstances involving code enforcement, the city sticks with citations rather than infractions because they’re much easier for staff to deal with and have a lower standard of proof.

Cowan said an infraction could be pursued when violations are severe or repeated, or when administrative citations are ignored, and said the city should wait to see how the new program works before speculating on problems that could arise.

From the staff report: “Under current state law, potential penalties, whether pursued as an infraction or an administrative citation, would be in an amount not to exceed one hundred dollars ($100) for a first violation, two hundred dollars ($200) for a second violation within one year, and five hundred dollars ($500) for each additional violation within one year.”

Said Mayor Tom Bates: “This is not a perfect law, but I’m committed, and council is committed, to monitor it and make sure it’s getting properly implemented.”

“We might be able to tinker around the edges down the road” if changes are needed, Bates added. “It’s, like, 95% there.”

Berkeley resident Carol Denney told the council during public comment that she is a cancer patient who lives next door to two chain smokers. She said she was glad Bates promised continued attention to the issue and that the city strengthened an earlier version of the ordinance, and was thrilled to see the new law win unanimous support.

“I have hope for the first time that my building will be cleared of secondhand smoke,” she said after the meeting. “I’m really hoping for success here.”

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Berkeley orders Forty Acres to stop cannabis operations (10.29.13)
Dispose of prescription drugs safely in Berkeley Saturday (10.24.13)
Berkeley forcibly enters Forty Acres cannabis collective (10.09.13)
Berkeley delays decision on 4th cannabis dispensary (09.20.13)
Berkeley to consider 4th medical cannabis dispensary (09.17.13)
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Berkeley fights feds’ attempts to close cannabis business (07.03.13)
Alcohol, marijuana use decline in Berkeley schools (11.21.12)

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  • tor_berg

    There’s a significant amount of middle ground between completely unregulated use of a substance and a total ban. All of the substances you mention are highly regulated for very good reasons. The FDA has, in fact, recommend banning trans-fats because they are very bad for human health. Marijuana is still banned in most of the country, and even in crazy Berkeley, its possession and use is highly regulated. Public consumption of alcohol is also banned.

    Why the freakout when similar rules are proposed for tobacco use? Tobacco is clearly dangerous and has no use other than abuse.

  • Charles_Siegel

    Usually, they say that prohibition was the reaction of conservative, rural voters to changes in mores that occurred as America became more urbanized. But, by contrast, the temperance movement of the nineteenth century was supported by the same liberals who supported abolitionism and feminism.

    So, you are right that this sort of issue cuts across left and right – which was my original point.

    Maybe I can make the same point more clearly by talking about drug addiction:

    When it comes to most drugs:
    –the right wants strict laws and doesn’t think about individuals’ freedom to do things that harm only themselves.

    –the left wants to avoid legal penalties as much as possible and to focus on harm reduction and medical treatment.

    But when it comes to cigarettes (our most popular dangerous drug):
    –the right argues against laws limiting smoking because they restrict individual freedom
    –the left wants strict laws. In this case, the left doesn’t talk about medical treatment or about harm reduction by handing out free filter cigarettes, just about laws limiting smoking.

    Likewise, the right complains about the “food police” – the liberals who tell people what to eat to protect their health, but the right has no problem with the drug police, who throw people in jail for having one joint.

    My own position is moderate: I think it is obvious that people should not be thrown in jail for having a joint, but I do think there is a value to laws that restrict self-destructive behavior. The biggest public health success of recent decades has been reduction of smoking, which depended both on education and on laws limiting smoking.

  • driver

    Being in a garage with a running car will kill anyone immediately, no ifs, ands, or buts. Cigarettes are nowhere near as deadly. Don’t confuse your dislike with danger. If you drive a car then be careful about casting the first stone.

  • sunshipballoons

    Well, it certainly wasn’t an abrogation of every lease in Berkeley. I’ve never seen a residential lease that provides for what the rent increase will be when the lease expires.

  • Carol Denney

    It amazes me –you can work cooperatively with community groups for more than ten years on your own time and at your own expense throughout your cancer treatments for an ordinance that will save countless others’ lives but not your own and still be trashed in this forum by people who can’t tell the difference between being forced to involuntarily breathe toxic carcinogens of which there is no safe dose and sitting on the sidewalk, which hurts no one. The savings in public health from this law alone should thrill anyone with any honest concerns about public health, especially for children.

  • EBGuy

    My understanding is that there is a substantial body of research showing the deleterious effects of tobacco smoking and second hand smoke. This explains the many mentions of tobacco in the findings section (there are much fewer references in the body of the ordinance). I believe its’ much harder to get funding for research into marijuana smoking (studying medical or secondary effects, due to the fact it isn’t legal in many jurisdictions).

  • EG

    How about enforcing the no smoking in Downtown Berkeley?

  • GeorgeDorn

    Either enforce it or get rid of the signs. I really hate cigarette smoke and I’d be delighted if I could just snap my fingers and get everyone to stop, but I’m also realistic.

    In principle I support the new ordinance because *other* people (like me) in *their* homes shouldn’t have to be exposed to smokers’ emissions. Smokers themselves can do whatever they want as long as I don’t have to breath the results. But is this law going to drive my smoking neighbors out onto their balconies or the outdoor common areas? Let’s say the law will prohibit that, okay. What about the sidewalk in front of my building? I doubt you can stop that without enforcing a citywide outdoor smoking ban. I’d rather people smoke indoors than for me to have to run a gantlet of smoke when I’m coming home and going out.

  • guest

    Rent control retroactively applied to all existing leases.

  • guest

    The left promotes drugs as “medicine” and seeks total legalization.

  • guest

    Tobacco has not been a completely unregulated commodity for over half a century. Why start a comment with such a clearly false premise?

  • guest

    He or she was not talking about banning cigarettes – just about banning behavior that forces other people to be exposed to your cigarette smoke.

    If one cannot do something anywhere in public or even in the privacy of their own home then it is effectively banned completely.

  • Hypocrites

    Car fumes are infinitely more dangerous and cancer-causing than cigarettes, but I guarantee that 99% of these pro-banners drives an automobile.

  • Guest

    People camping out on the sidewalk in business districts during business hours harms the local economy, damages the livelihoods of the workers and owners of the small businesses that we need to make Berkeley thrive. There are a lot of people who avoid downtown Berkeley and Telegraph specifically because of those people.

  • tor_berg

    For the same reason that you opened your comment with a clearly false premise: that this policy represents a ban on the sale tobacco. Thus, do you support repealing the ban on the public consumption of alcohol? Do you support full legalization of marijuana? Do you feel that private citizens should be able to refine, transport, and store gasoline with no concern for safety or contamination?

    Hazardous substances should be regulated. At one point, that was not a very controversial proposition.

  • tor_berg

    Tobacco use is not banned in all public places. As has already been noted, tobacco use is much more highly regulated in SF, and yet people still manage to find places to smoke there.

  • emraguso

    KGO 810 is taking comments on its show about the Berkeley smoking issue. You can call in at 415-808-0810.

  • God Love Her

    this “mentality” has reared its hideous head in previous generations – several of them actually. the thing is to be human is to smoke. according to some sources products were banned less than a hundred years ago and a hundred years before that and a hundred years before that and on an on. those bans were lifted and their demented supporters sent to history’s hall of shame – a few of them hit by buses or eaten by lions or something. the point is this – no ban is going to end smoking – not the last ban, not this ban, not the next ban.

    civilization exists because of smoking which existed long before “big tobacco”. the more people smoked the more they prospered. on the other hand, plagues and horrible deaths from nonsense like paper cuts tend to flourish under bans. eventually people figure it out.

    so if 75% of you nonsmokers need to watch your descendants turn into monkeys to learn that lesson, perhaps the only response should be – so be it. but i’m not there just yet – i suppose i’m a bit of an optimist.

    in any case, tobacco use is going to outlast us all. praise god!

  • Charles_Siegel

    “The antismoking campaign is a major public health success with few parallels in the history of public health.”
    — Centers for Disease Control and Prevention

  • Charles_Siegel

    Good point. I was talking to a homeless friend of mine downtown, and I noticed that she was smoking a cigarette while standing right next to a lamppost with a sign saying that smoking is not allowed in this commercial district. I asked her about, and she said that both the police and the ambassadors have stopped and talked with her about other things while she was smoking – and never mentioned that her smoking is illegal.

    The law is totally ignored. We should start enforcing it.

  • guest

    ROTFLAMO! The CDC is one of the LAST places I would go for health advice.

  • tor_berg

    Perhaps you should re-read the article and notyrmma’s comment. No one has proposed a ban on the sale of tobacco. Even with this the multi-unit ban in place, tobacco is still widely available and smokers are still able to consume tobacco in a wide variety of locales throughout our fair city.

    Again, why continue to distract from the issue at hand with irrelevant hysterics?

  • sunshipballoons

    You miss the point. How many leases had provisions setting what rent increases would be from a year-to-year basis? In terms of residential leases: pretty much none. They normally expired after a year (or six months or whatever), then, with no lease in place, the landlord raised rent indiscriminately. That’s not a lease term.

  • Tizzielish

    Have you ever tried talking to neighbors who do things that disturb your quiet enjoyment f your home? Do you think smoking neighbors are oblivious to the fact that their smoking affects their neighbors? It’s not so different from neighbors who make lots of noise, pretending their noise does not bother their neighbors.

    In my experience, when confronted with a neighbor’s displeasure over another neighbor’s behavior, the neighbor doing the smoking, or making lots of noise, doesn’t give one good goddamm, they become angry and defensive and, often but not always, threaten the complaining neighbor.

    In my building, management explicitly asks residents not to approach neighbors about noise or smoking, but to tell management about problems and let management handle the complaints as anonymous complaints. I am grateful for the anonymity because I have eben thareatened by neighbors when I, according to them, violated their rights by asking them to turn down their booming stereo at 2 a.m.

    It is already against the lease to smoke in common areas but people smoke in the courtyard all the time. I live over the courtyard and it seems like every drift of smoke floats up to my open windows. Yeah, sometimes I like to open my windows! But to do so causes me to inhale smoke. One neighbor always smoked at her window to, get this, protect her dog from her ciggie smoke. Her cigarette smoke drifted from her window to mine — our windows are about 8 feet apart, at a narrow point in the courtyard and by sparing her dog’s lungs, she was basically puffing into my home. Management did get her to stop doing that.

    It is scary to be cornered in a hallway at 2 a.m. by several drug or high people angry with me because I dared to knock on a door (well, one has to pound when the stereo is on full blast) and ask them to turn it down.

    I find asking folks not to smoke in no-smoking areas — posted-no-smoking-common-areas — brings on even more anger than noise complaints.

    I am thrilled with the new law. Not only will I file complaints with the city, but I will be putting out notices to my neighbors when a smoker invades our lungs, urging my neighbors to also complain. My notices will include contact info for how to make the complaint.

    I can’t tell you how many times I have asked smokers to not smoke in posted-non-smoking-areas of my building and gotten angry verbal abuse — plus the smoker kept on smoking, laughing at me.

    This new law gives me some recourse. I am happy about it.

  • Tizzielish

    Actually, most marijuana does not have all the carcinogenic additives that most commercial cigarettes have. It’s not just the tobacco that is a threat to health but all the other crap they put in ciggies to make them more addictive to help sell more that causes many of the problems. So far, marijuana smokng appears to have avoided chemicals added to increase the desire to smoke it. That desire is evidently built into cannabis?

    I smell marijuana constantly where I live and I don’t like having it float into my apartment anymore than any other smoke. Another’s smoke invading my lungs — if I smell the smoke, from whatever source, it is entering my lungs — is an invasion of my privacy. This is a good law. I am glad it was passed.

  • e cigs

    tobacco smoking is very danger for your health. please avoid smoking habit and use pufcigs electronic cigarette for help to quit smoking