Berding | Weil Community Association ALERT Newsletter
Legal News and Comments for Community Association Boards and Managers Issue #53 • September 2010
Legislative Alert:
for
San Francisco Condos, Co-ops,
Planned Developments and their Managers
by Andrea L. O'Toole, Esq.
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.
Berding|Weil Q&A of the Day
By Andrea O'Toole, Esq.
Do the San Francisco smoking restrictions apply to all common interest developments?
The restrictions apply to most condominium and cooperative projects and apply to some planned developments. The applicability is based not on whether the property is characterized as a condo project or planned development, but rather on whether that property is a "multi-unit housing complex" as defined under the restrictions and whether the property includes any of the areas in which smoking is prohibited e.g. enclosed common area, areas open to the public. The restrictions apply only to San Francisco properties; however, many other cities and counties in the Bay Area have similar (and, in some cases, more restrictive) secondhand smoking regulation.
If our association already prohibits smoking throughout the entire project, do we need to comply with the regulations?
Nothing in the smoking ordinance excepts associations that have already implemented community-wide smoking restrictions and those that have done so will likely have an easier time complying with the restrictions.

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