SMOKING BAN IN HOAs – A New Law Is Introduced in California

SMOKING IN HOAS: AB 746 recently introduced in California (not law yet) takes aim at health hazards of secondhand smoke in multi-family residences that share walls, ceilings, floors or ventilation systems, says Jim Sanders of the Sacramento Bee (2-28-2013 Article). “Landlords already have authority to prohibit smoking in their rental units, through a law implemented last year, but Levine’s bill would impose a mandatory ban statewide. One-third of California’s residents live in multiunit housing No state ever has ventured into personal bedrooms and living rooms with its smoking restrictions, but California is going even further than that by targeting owner-occupied residences as well as rental units.” He says the goal is to “eliminate secondhand smoke that can be harmful when drifting through windows, walls, crawl spaces, ventilation systems, light fixtures, plumbing, ductwork, baseboards and wiring gaps. The bill would permit outdoor smoking near apartments or condos, but only in a clearly marked area that is at least 20 feet from any housing unit and 100 feet from a playground, school or pool. Condominium neighbors collaboratively would choose a site.”

Here are some tidbits out of the law, which would be added to the Health and Safety Code.

Smoking in a private residence licensed as a family day care home during its hours of operation and in those areas of the facility where children are present, is already prohibited, and currently, landlords may prohibit the smoking of tobacco in their buildings or on the property. The new law would prohibit smoking cigarettes and other tobacco products in all areas of multifamily dwellings, except areas designated for smoking – for condominiums and townhouses this means areas approved by the Association.. This bill does not address marijuana.  Multifamily dwellings under the statute are residential properties containing 2 or more units with one or more shared walls, floors, ceilings, or ventilation systems.

Any person who violates the requirements of the bill would be guilty of a crime.

“(c) The landlord, property manager, building owner, homeowners’ association, or other equivalent authority may designate an outdoor area where smoking is permitted if the area meets all of the following criteria:

(1) The area is located at least 20 feet from any unit or enclosed area where smoking is prohibited.

(2) The area does not include, and is at least 100 feet from, unenclosed areas primarily used by children and unenclosed areas with improvements that facilitate physical activity including playgrounds, swimming pools, and school campuses.

(3) The area includes no more than 10 percent of the total enclosed area of the multifamily dwelling for which it is designated.

(4) The area has a clearly marked perimeter and is identified by conspicuous signs.

(5) The area is completely within a confined area.

(6) The area does not overlap with any enclosed or unenclosed area in which smoking is otherwise prohibited.”

As for the crime part of the bill: “(d) Any person who violates this section is guilty of an infraction and shall be punished by a fine not to exceed one hundred dollars ($100) for each violation.”

City or county ordinances would not be preempted or become ineffective by this law and the ordinances would be enforceable alsoin areas where they are “more stringent than” the law.

The big question of course is who will enforce AB 746 if it becomes law (the association or neighbors) and how, and what impact (or pushback) it would have relating to died-in-the-wool smokers or people, who can’t easily get out of their units because of age, disabilities or other reasons.  Nonsmokers or advocates against second hand smoke will consider this to be progress if the law is enacted. Smokers will likely consider it further infringement on their rights. Who will win the argument in Sacramento? You can read or download the full bill or follow the legislation by signing up on the California legislative website or following “”.

And on a side note, there are a lot of advertisements for E-cigarettes floating around on the web these days, and this product is touted as the answer to the second hand smoke problem. Apparently with these cigarettes, which are battery operated, nicotine is released through a vaporized liquid and when the “smoker” breathes out he or she experiences the sensation of smoke, with a release of vapor that looks like smoke, but does not smell like smoke, or involve smoke, combustion or burning of anything.

Perhaps a reader who has had experience with this kind of product will to weigh in.

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