No Smoking Policy

Legal Q&A: How can I enforce a "No Smoking" policy?

Question:  Can I change a "smoking-allowed" unit to a non-smoking unit? If so, what kind of notice do I need to give to the resident and will changing the terms of the residency be considered taking away a "service?" Lastly, what should I do when other residents complain about smoke from another tenant's unit?

Answer:  The short answers: Yes, you can change a "smoking-allowed" unit to a non-smoking unit provided you give the affected resident a Notice of Change of Terms of Residency pursuant to Civil Code section 827, and in general, the changed term will not be considered a decreased service. The imposition of a project-wide smoking ban should eliminate complaints by other residents regarding second-hand smoke. Failure to enforce local law which imposes a smoking ban in common areas can subject an owner to liability to an affected resident.

California Law

While landlords in California have likely always had the authority to prohibit smoking on their rental properties, a state law passed in 2011 made this authority explicit. This law, codified in Civil Code section 1947.5, and which went into effect January 1, 2012, provides that a property owner of a residential dwelling unit (as defined in Civil Code section 1940) may prohibit the "smoking of a cigarette or other tobacco product on the property or in any building or portion of the building, including any dwelling unit, other interior or exterior area, or the premises on which it is located, in accordance with this article." Note that the state law does not "ban" smoking in residential units – it only provides property owners explicit authority to ban smoking on the premises, and that the law only applies to cigarette smoke (this may have been done to insure no smoking resident could claim discrimination as a "protected class").

For leases and rental agreements entered into after the law went into effect, the property owner is required to include a provision in the lease or rental agreement that specifies areas of the property where smoking is prohibited. For leases and rental agreements that were entered into before the law went into effect, a prohibition against the smoking of cigarettes or other tobacco products in any portion of the property in which smoking was previously permitted will constitute a change of the terms of residency, requiring adequate notice provided in the manner prescribed in section 827.

In 2007, Oakland enacted the “Smoking Pollution Control Ordinance” (Chapter 8.30.010 of the Health and Safety Code, Oakland Municipal Code). This ordinance built on existing law which prohibited smoking in the enclosed common areas of multi-unit complexes. The Oakland ordinance applies not only to tobacco smoke, but also the "inhaling, exhaling, burning, or carrying any lighted cigar, cigarette, weed, or other combustible substance." As noted, it only applies to multi-housing common areas. Smoking in the resident's unit, including changing the lease terms regarding smoking, is therefore to be regulated by the state law discussed above, as supplemented by any applicable local ordinance, such as rent control laws that define housing services to include a resident’s right to smoke inside their rental unit. Absent such local ordinance, and assuming a month-to-month rental agreement, a tenant can be prohibited from smoking inside their unit by a properly served Notice of Change of Terms of Tenancy.

Although efforts were made to learn whether the Oakland rent board considers smoking to be a housing service, that information could not be definitively provided by the board. If smoking is determined to be a housing service, a change in terms of residency relating to smoking would allow the residency to file a petition for decreased rent for decreased services. It is not known whether this issue is decided by the rent board on a case-by-case basis (e.g. a lifetime smoker who has to leave the unit every 15 minutes to go smoke somewhere outside the unit and the complex would be more likely to receive a rent decrease than a casual smoker who only smokes occasionally).

Local Ordinances - Berkeley

Effective May 1, 2014, smoking is prohibited in all multi-housing units with two or more units (i.e. apartments, co-ops, condominiums, etc.). This also includes common areas such as private decks, balconies, and porches of units. Berkeley property owners and residents may contact the Berkeley Tobacco Prevention Program at (510) 981-5330 for more information on the Berkeley residential smoking ordinance.

Local Ordinances - Alameda

Effective January 1, 2013, smoking is prohibited in all multi-unit housing in Alameda. Alameda requires that property owners, among many responsibilities: clearly and conspicuously post "No Smoking" signs in common areas, at entrance, and on floors where smoking is prohibited; disclose to prospective residents and buyers the requirements of the Secondhand Smoke Ordinance; and maintain a diagram that illustrates designated outdoor smoking areas, if applicable. For a complete list of property owner responsibilities relating to Alameda's smoke ordinance.

Residents

Property owners who fail to enforce a local ban on outdoor common area smoking, or whose property is not covered by such an ordinance, may be subject to liability claims arising from residents affected by second hand smoke. See e.g. Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540. The Birke case was based on public nuisance, but it is not unlikely that similar claims based on habitability or nuisance would also be permitted to go forward. However, bans on outdoor smoking do not cover the common situation in which a resident smokes on their deck or patio and that smoke enters a neighbor’s airspace. In such cases, a lessor will need to evaluate each such complaint and try to balance the rights of the competing residents.

If the affected resident complains about marijuana smoke from another unit in which that resident is using marijuana for medically-approved reasons, the above rules may not solve the problem. In such a situation, owners might consider requiring, or offering to install, an active smoking filtering machine so that there is little, if any trace, of the smoke, and requiring the medical marijuana smoking resident to use the machine as a condition of the "reasonable accommodation" that otherwise applies to such requests.

Attorney: Richard L. Beckman

Under Federal laws, marijuana use, growth, and sale is illegal.  Marijuana is classified as a Tier 1 drug, along with heroin and LSD. The Federal government has authority to seize real property of owners who allow marijuana distribution or cultivation.

Despite stringent Federal laws, it is becoming more and more common for residents to smoke and grow marijuana in their rental units.  Is this legal?  Depending on the circumstances, the answer may differIn 1996, California passed the Compassionate Use Act.  Marijuana use and growth became legal for persons with disabilities for medicinal purposes and as prescribed by a physician.  A qualifying disabled person can cultivate up to 12 marijuana plants in his or her residential unit.

The city of Oakland permits up to 6 plants in a private residence. San Francisco allows up to 24 plants in a private residence.  And Berkeley allows as many plants as are needed to address the person’s medical needs.

In 2016, California Voters passed Proposition 64 legalizing marijuana.  This law decriminalizes personal use and possession of marijuana by individuals 21 years of age or older.  Individuals may now possess, process, transport, purchase, obtain, and give away up to 28.5 grams of marijuana.  Furthermore, individuals may possess, plant, cultivate, harvest, dry, and process up to 6 marijuana plants within a residential unit for recreational use.  The marijuana need not be for medical purposes.

Notwithstanding legalization, marijuana is still not permitted where tobacco use is prohibited, near or at a school, or while driving.

State and local laws legalizing marijuana use and growth have no effect on Federal marijuana laws.  Marijuana is still illegal under Federal law.  Ironically, a person could smoke or grow marijuana in Oakland in full compliance with State and Local laws, yet be committing a Federal offense.  However, the Federal Government is not actively prosecuting such use or pursuing real property owners who allow marijuana use or growth inside a property.  This hasn’t always been the case, and it is possible the Federal Government’s policy could change in the future.

So, can a property owner prohibit marijuana use or growth inside a rental unit?  Proposition 64 does not require landlords to permit marijuana smoking inside a rental unit.  Similar to a prohibition against smoking tobacco, a landlord can still lawfully prohibit marijuana use and growth in a written lease agreement.  And the property owner may be able to enforce such a provision depending on the circumstances.

Notwithstanding a prohibitory lease prohibition, fair housing laws impose certain obligations on property owners, including the obligation to accommodate residents with disabilities.

Under applicable fair housing laws, it is unlawful for a property owner to refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a disabled resident an equal opportunity to use and enjoy a rental unit.

What does this really mean? It means that a landlord may have to make exceptions to standard rental practices and policies (such as no pet policies or no marijuana use or growth policies), in order to accommodate a resident with a disability.

A disability isn’t limited to physical or visible impairments. It is broadly defined to include individuals with a physical or mental impairment that limits a major life activity. This may include conditions such as carpal tunnel syndrome, anxiety, or depression. So, it may not be readily apparent to a property owner that a resident suffers from a qualifying disability.  Be aware that just because a resident does not look disabled does not mean that a resident is not disabled.

A resident with a disability may be prescribed marijuana to alleviate the symptoms of the disability under State and Local laws.  If this is the case, then even where there is a lease provision prohibiting marijuana, the property owner may be required to accommodate the resident and allow the resident to use or grow marijuana in the rental unit.  So long as the resident’s use or growth complies with applicable laws, then it may be considered a reasonable accommodation for the resident’s disability.

Notwithstanding the above, a property owner is not required to provide an unreasonable accommodation for a disability, which may include an accommodation that causes an undue financial or administrative burden or poses a direct threat to health or safety of others.  For example, it may be unreasonable if the resident installs an elaborate grow system that violates electrical and housing codes or if the smoke from the marijuana wafts into other units and adversely affects neighbors and children.

Failure or refusal to provide or even consider a reasonable accommodation may be discrimination against a person with a disability and may violate applicable fair housing laws.  Accordingly, it is important to promptly and seriously consider any resident’s disability accommodation request. 

Attorney: Steve Williams