Berding | Weil - Attorneys At Law

Legislative Alert for San Francisco Condominiums, Cooperatives, Planned Developments and their Managers

Background

We received several inquiries concerning the impact of San Francisco's recently-enacted smoking ordinance. We've written this article to efficiently address the impact the ordinance will have on homeowner associations and management operations in San Francisco. No one yet knows exactly how the new requirements will actually be enforced and we will update this article in the future once the City has established an enforcement track record.

The regulation of secondhand smoke is becoming increasingly more common, far-reaching, and restrictive of smokers. In April 2010 San Francisco approved and signed into law Ordinance No. 58-10 (“Ordinance”) which, amongst other things, prohibits smoking in common areas of multi-unit housing complexes and areas outside entrances, exits, and operable windows and vents of buildings. The Ordinance establishes obligations for property owners and property managers to prevent smoking in prohibited areas; and, provides for administrative procedures and penalties for violations of the regulations, including the recovery of costs and enforcement of those costs through liens.

The Ordinance applies to most San Francisco condominium and cooperative projects (and some planned developments). These homeowner associations are obligated to perform specific steps to comply with the law to avoid civil or administrative enforcement by the City. Those steps include posting proper signage, providing specific notices to residents within certain timeframes, requesting that violators refrain from smoking in areas where smoking is prohibited, and removing ash trays from those areas. This article discusses the Ordinance, its applicability to San Francisco homeowners associations, and the obligations of those associations in enforcing the smoking regulations.

A Brief Overview of Smoking Regulation

Tobacco control is legislated at all levels of government - federal, state, and local. The U.S. Food and Drug Administration has regulatory authority over manufactured tobacco products and the federal government also levies a cigarette tax, which is currently $1.01/pack. The feds address public health issues - for example, the issues of prevention and wellness were considered important issues during the health care reform debate of 2010 - and, on occasion, the federal government may embark on a national advertising campaign to prevent children from starting smoking or one which encourages smokers to quit. However, despite the many areas that the federal government addresses, the regulation of secondhand smoke has largely been a state and local issue.

States, including California, have long been regulating where smokers may “light up.” Workplace restrictions were followed by limitations on smoking in certain specified public places including restaurants and then bars. Over time, control has become more expansive and mildly-restrictive limitations have been replaced with exacting bans. According to the American Lung Association (www.lungusa.org), there are now more than 25 California cities and counties with comprehensive outdoor secondhand smoke ordinances.1 Those ordinances prohibit smoking in many outdoor settings such as outdoor dining areas of restaurants, entryways to buildings, public events, sidewalks, and recreation areas including parks and other public spaces. More recently, some cities (e.g. Richmond and Belmont) have gone as far as prohibiting smoking throughout apartment and condominium buildings, including the individual units.

San Francisco's Regulation of Secondhand Smoke

Like California, San Francisco has long been regulating secondhand smoke - at least since the early 1980s - and City law existing prior to the recent changes already prohibited smoking in many forums such as city buildings, business establishments, schools, hospitals, and on public transit. The intent of this smoking regulation was and is to protect nonsmokers from secondhand smoke by eliminating smoking as much as possible in public places, and setting higher standards for what are appropriate smoking areas.2 The justification for the smoking regulation was based on several findings concerning the adverse health effects associated with secondhand smoke3 including that scientific evidence indicates that there is no risk-free level of exposure to secondhand smoke.4 The Board of Supervisors found that nonsmokers had no adequate means to protect themselves from harm caused by secondhand smoke and that regulation was necessary to protect the health, safety, welfare, comfort, and environment of nonsmokers.5

The Ordinance6 went into effect on April 24, 2010. Specifically, it amended Articles 19F and 19I of the San Francisco Health Code (“SFHC”)7 to prohibit smoking in additional areas (not already covered by the City's smoking regulation) including common areas of multi-unit housing complexes and areas outside entrances, exits and operable windows and vents of buildings (except at the curb of the nearest street, sidewalk or alley). The justification for regulating smoking specifically within condominium projects was based on findings concerning the adverse health effects associated with secondhand smoke but also that residents living in condominium projects can be exposed to secondhand smoke that “seeps from neighboring units through doorways, electrical sockets, cracks in the sealing, shared ventilation systems, holes in wall plates and subfloor assemblies for electrical wiring, plumbing, and ductwork.”8 The Ordinance does not go so far as to prohibit smoking within individual units.9

Restricted Areas

Smoking in “enclosed common areas of multi-unit housing complexes...including, but not limited to...condominiums” is prohibited.10 “Multi-unit housing complex” means a public or private building, or portion thereof, containing two or more dwelling units and includes but is not limited to condominiums.11

“Dwelling unit” is defined in the regulation (at §1009.21(f)) and is broad enough to include what is typically referred to as a “unit” in a condominium project or a “lot” in a planned development (where that lot is one of two or more “lots” situated in a single building). Where the property meets the definition of multi-unit housing complex, smoking in enclosed common areas is prohibited.

Enclosed common areas are those areas accessible to and usable by residents of different units (e.g. common halls, elevators, covered parking areas, lobbies, interior stairwells, laundry facilities, recreation areas).12 “Enclosed” means:

  • (1) any covered or partially covered space having more than 50 percent of its perimeter area walled in or otherwise closed to the outside such as a covered porch with more than two walls, or
  • (2) any space open to the sky ("uncovered") having more than 75 percent of its perimeter area walled in or otherwise closed to the outside such as a courtyard.13

Therefore, if a common interest development includes any common area which meets the definition of “enclosed,” the restriction applies and smoking is prohibited in those areas. But of course it is not that simple and straightforward and there is always an exception to the rule. An exception here is that smoking is permitted if it occurs “ten feet or more away from a door or window in an outdoor common area within the perimeter, a common hall open to the outdoors on at least one side, or courtyard of any multi-unit housing complex.”14

In addition to prohibiting smoking in the enclosed common areas of the project, the entry doors of individual units must remain closed at any time that smoking is occurring within that unit where the door opens into an enclosed common area. In any case, the door may be opened at any time for purposes of entering or exiting the unit.15

Of course, many associations already have restrictive covenants and/or rules in place addressing secondhand smoke issues. And, as is the case with some associations, those covenants are (and can be) more restrictive than local law requires.16

Mixed-Use Projects

There are other provisions of San Francisco's smoking regulations which could apply to mixed-use buildings. For example, the smoking regulation prohibits smoking in “buildings and enclosed structures, throughout the building or structure and in the common areas, such as the elevators, hallways, stairways, restrooms, conference and meeting rooms, and eating and break rooms, and certain unenclosed areas”17 of certain specified facilities (e.g., restaurants, business establishments, and health facilities). In those cases, associations responsible for managing and maintaining common areas subject to the restrictions are obligated to take steps to address the secondhand smoking issue.18

The Association's Obligations under the SF Smoking Regulation

It is unlawful to smoke in any of the areas described in the regulations where smoking is prohibited.19 It is also unlawful for the owner of property, or a person with the right to possession or management of property, to permit any person to smoke in any area where smoking is prohibited. This includes situations where the owner or manager knew of the smoking, or at least should have known through reasonable diligence.20 “Smoking” or “to smoke” is defined as “inhaling, exhaling, burning or carrying any lighted smoking equipment for tobacco or any other weed or plant...”21

In a homeowner's association context, typically the association is responsible for the management of common areas. Where that is the case, it is unlawful for the association to permit smoking in those areas where smoking is prohibited. An association, however, is not required to enforce a smoking prohibition outside the building against persons who are not residents of the building.22

Associations are required to take the following specific steps:

Signage: post signs at each entrance to the premises, in letters no less than one half inch in height, that read "Smoking only at the curb or at least 15 ft. from exits, entrances, and operable windows."23 In font no less than 1/8 inch in height, the signs must also include (i) the international "No Smoking" symbol, consisting of a pictorial representation of a burning cigarette enclosed in a circle, with a diameter of at least three inches, with a bar across it, and (ii) a statement at the bottom of the sign that reads "SF Health Code Article 19F." The signs must be posted no higher than eight feet and no lower than five feet and must be posted within ten feet of the door or the most appropriate place for visibility from outside.24 An association must also post clear and prominent "no smoking" signs in the common building lobby, common mailbox area, or common elevator.25 If none exists, then providing notice in another reasonable manner would be prudent.26 The internet can be used to identify companies that can create the right types of signage required for San Francisco residential and commercial buildings.

Notice: Associations are required to provide notice of the smoking prohibitions to the residents no later than July 23, 2010.27 Associations must request that any person smoking in an area where smoking is prohibited refrain from smoking; however, an association with 15 or fewer units is not required to make the request unless it actually observes the person smoking in an area where smoking is prohibited. An association is not required to enforce a smoking prohibition outside the building by persons who are not residents of the building and a request that someone refrain from smoking does not require the physical ejectment of a person from the premises.28

Upon receiving a written complaint from a resident or the San Francisco Department of Public Health, or when any person is observed smoking where smoking is prohibited, an association must post a notice in the building lobby, common mailbox area, or common elevator (or, if none exists, in another reasonable manner) for at least ten days (1) advising that a resident has been observed smoking in an area where smoking is prohibited under San Francisco Health Code Article 19F, and (2) requesting that all residents refrain from smoking in that area. If there is no common building lobby, mailbox area or elevator, then notice should be provided in another reasonable manner. If the association knows the identity of the resident who was observed smoking in a prohibited area, the association must (1) also make the request in writing to the resident, and (2) keep a record of the request for a reasonable period of time.29

Removal of Ashtrays: Associations must remove any existing ash receptacles from areas where smoking is prohibited and remove any ash receptacles which are placed within any enclosed area where smoking is prohibited.30

Enforcement: Violations and Penalties

Either the City Director of Public Health (“Director”) or an association can resort to civil enforcement to enforce the requirements of the City's smoking regulation. Civil enforcement permits the Director or the association to file a court action seeking an order to enforce the smoking restrictions on the violator. The Director can recover civil penalties for violations of the prohibition and an association can recover damages of up to $500 per day for each day the violation occurs. The Director also has available to it administrative remedies. The Director can issue a citation for a fine or, can levy a fine after providing the violator with notice and an opportunity for a hearing.

The Director can recover its costs and fees, including its attorneys' fees, for enforcement of the smoking regulations. All costs, fees, and penalties (administrative or civil) may be collected by the Director by imposing a lien against the property of the violator. Where an association must comply with certain requirements of the smoking regulation - such as the signage, notice, and ashtray removal requirements - and it fails to do so, it could be subject to enforcement by the Director and the civil and administrative enforcement proceedings discussed above.31

Enforcement of the regulations is likely to be complaint-driven. As such, it would be prudent for associations to put in place a process for handling complaints from residents as well as complaints that may be received from the Director.

Recommendations

The first step for an association is to determine whether the smoking regulations (or any part thereof) applies to it and, if so, to which areas of the project. This is not always a simple exercise. For example, in a mixed-use building which has commercial, retail, and residential units, and several different types of common area and restricted common area, the question of who is responsible to enforce the smoking regulation in those areas, if at all, can become quite complicated. The question of who is responsible will depend on the governing documents and how those documents line up with the smoking regulations.

Once the association determines it has obligations to implement and enforce the regulations, it should take steps to comply with the signage and notice requirements and remove any ashtrays from areas where smoking is prohibited. It may also be helpful to educate the members and residents about the smoking prohibition if it deviates from the association's current smoking rules.

1 Many of those are here in the Bay Area including Alameda, Contra Costa, Marin, San Mateo, and Santa Clara counties, and several cities therein including Alameda, Belmont, Oakland, Richmond, San José, and San Rafael, to name just a few. Of course, the various city and county smoking regulations vary in their requirements and complexity, and a discussion of those regulations is beyond the scope of this article.

2 SFHC §1009.20(e). All citations are to the SFHC.

3 See §1009.20

4 §1009.20(a)(6) citing to the U.S. Surgeon General's 2006 Report on the Health Consequences of Involuntary Smoking.

5 §1009.20(d)

6 Introduced by Supervisor Eric Mar; approved by the Board of Supervisors on March 16, 2010; and signed by Mayor Gavin Newsom on March 25, 2010.

7 More specifically, it amends sections 1009.20-1009.23, 1009.25, and 1009.81; adds sections 1009.26, 1009.27, and 1009.29-1009.32; and repeals section 1009.24 of the SFHC.

8 §1009.20(c) citing to the 2003 Final Report on Tobacco Control Successes prepared by the Cancer Prevention and Control Program at the University of California, San Diego, for the California Department of Health Services.

9 §1009.23(b)

10 §1009.22(f)

11 §1009.21(k)

12 §1009.22(f)

13 §1009.21(h)

14 §1009.22(f)

15 §1009.22(f)

16 See, for example, Mullally v Ojai Hotel Co. (1968) 266 Cal.App.2d 9 where owner obtained city approval and permit to build tennis court but such use was prohibited by the CC&Rs and the association was able to prohibit the court's construction.

17 §1009.22(a)

18 §1009.22(a)

19 §1009.22(h)

20 §1009.22(h)

21 §1009.21(s). The regulations expressly do not affect medical marijuana laws or regulations.

22 §1009.22(h)

23 There is currently an ordinance pending approval which proposes to clarify the signage language requirements of section 1009.22. The proposed ordinance, if approved, would amend the signage requirement to read: “Smoking only 1) at the curb or 2) if no curb, at least 15 ft. from entrances, exits, operable windows, and vents.” (San Francisco Legislative Digest dated May 24, 2010)

24 §1009.22(i)(1)

25 §1009.22(i)(2)

26 Free signs in English, Spanish, or Chinese may be available by contacting the San Francisco Tobacco Free Project at (415) 581-2448.

27 §1009.22(i)(4)

28 §1009.22(i)(3)

29 Id.

30 §1009.22(i)(5)

31 Enforcement by the San Francisco Department of Public Health of the signage requirements will not occur until after the language changes take effect.

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