Berkeley Passes Residential Smoking Ban -- and Takes Steps to Enforce It

By Emilie Raguso
Berkeleyside

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.

Under the ordinance, the city's Public Health Department will provide smoking cessation classes and education 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 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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