Palo Alto Weekly

Cover Story - October 29, 2010

Smoke signals

New ordinances target second-hand smoke in apartments, condos and townhouses

by Sue Dremann

The apartment doors at the Lytton Gardens independent-living units in Palo Alto are adorned with colorful, homey touches: a resident's name in needlepoint or a cheerful wall hanging.

The fluorescent-pink sign on De'Lois Turner's door expresses a more serious sentiment:

"Second-hand smoke = death!" the sign reads, hinting at a certain tension within the complex.

Turner, 67, is hopping mad at Lytton's executives for allowing smoking at the multistory residence at 330 Everett Ave. Turner says that residents are smoking in their rooms and in a front-patio area designated for smokers that is too close to the building, allowing smoke to drift inside.

The smoke has irritated her eyes and sinuses, she said.

"I inquired before I moved here if there was smoking. I'm allergic to cigarette smoke," she said, her eyes red. "Why should I have to live like I'm coming down with the flu each and every day?"

Turner's complaint is one echoed by many residents in multi-family housing throughout the area. Secondhand smoke in apartments, townhouses and condominiums is the No. 1 complaint received by the nonprofit Breathe California of the Bay Area's secondhand-smoke helpline, according to Dennis Acha, director of programs.

But now, cities and counties are crafting ordinances to address the issue.

A spate of city and county ordinances adopted recently limit where residents may light up. And all of the ordinances allow residents to file civil suits against violators.

But while 78 percent of Californians in a 2008 state study supported restricting smoking to designated areas and not within buildings, balconies and patios, some local residents called the ordinances discriminatory. And an association that represents apartment-building owners would rather see the owners determine whether their complexes are smoke-free, not city or county governments.

Cracking down on secondhand smoke both inside and outside of multifamily residences is heating up. On Sept. 28, the Menlo Park City Council unanimously passed new regulations that will fine violators $50 for the first offense and $100 for the second offense in a 12-month period if they smoke outside of designated areas, such as patios or where required signs permit smoking

The City of Belmont adopted a secondhand smoke ordinance in 2007 that prohibits smoking within 20 feet of a multistory residence and contains provisions against people who are complaining about smoking violations getting harassed. (The ordinance does allow smoking marijuana for medical purposes.)

Santa Clara County passed a stringent ordinance Oct. 19 that bans smoking in residential units and limits smoking to areas beyond a 30-foot radius of multi-unit housing. It applies only to unincorporated areas of the county. It is expected to be finalized on Nov. 9 after a second reading.

Santa Clara County plans to use some funding out of a $7 million American Recovery and Reinvestment Act grant to educate the public about three new ordinances related to smoking, including the multifamily-dwelling ordinance. Other ordinances include a ban on smoking in county parks and requirements for tobacco-retailer permits, with several product restrictions, Santa Clara County Supervisor Liz Kniss said.

The county health department and Breathe California also plan to advocate similar smoking ordinances in cities within the county.

"We're really going after this in a big way," Kniss, a former social smoker, said. The board's vote on the measure, which was introduced by Supervisor Ken Yeager, himself a former heavy smoker, was unanimous.

"I really think it will make an enormous difference in public health, and I hope more cities will adopt similar ordinances," said Kniss, a nurse.

Public-health specialists applauded the county decision.

"It's a big public-health issue now," said Francis Capili, health-education specialist for Santa Clara County Department of Public Health Chronic Disease and Injury Prevention Division.

"Tobacco smoke contains more than 4,000 chemicals, including 200 known poisons and 43 cancer-causing chemicals. Secondhand smoke kills about 54,000 non-smokers every year and has been classified as a Class A carcinogen by the Environmental Protection Agency (EPA). The U.S. Surgeon General has concluded that there is no risk-free level of exposure to secondhand smoke," he said.

Health is not the only concern from second-hand smoke. Fatal fires are also linked to the smoking habit, and the Santa Clara County ordinance noted the fire hazards related to smoking in homes.

Cigarettes, pipes and cigars are the leading causes of fire deaths in the United States. In 2007, there were 140,700 smoking-related fires resulting in 720 deaths and 1,580 injuries and $530 million in property damage, according to the U.S. Fire Administration.

The danger can be acute in homes with seniors and persons with disabilities. Smoking at a residence where there are oxygen tanks and long-term oxygen therapy caused 27 percent of fatalities in fires at multi-family dwellings, the Fire Administration reported.

State laws already do not allow smoking in senior-care facilities where skilled nursing is in the same building as housing. Channing House in Palo Alto, for example, does not allow any smoking in the building or on the grounds, spokeswoman Letitia Roddy said. Likewise, Lytton Gardens does not permit smoking at its skilled-nursing facility. But smoking is allowed in some older apartment buildings, Gery Yearout, Lytton's executive director said.

Not everyone's happy about the ordinances that have been popping up.

In the view of the California Apartment Association, Tri-County Division, non-smoking shouldn't be legislated. The organization represents owners of multi-family rental housing in San Mateo, Santa Clara and Santa Cruz counties.

"Owners and managers of rental properties should be free to establish the smoking or non-smoking policies and procedures that best meet the needs of their residents, their businesses operations and the market," Executive Director Joshua Howard said.

Currently, most cities do not have ordinances against smoking in multi-unit dwellings, but some building owners do impose restrictions.

A 2009 survey of rental-property owners in California found that one third of rental units in the state are smoke-free, Howard noted.

Still, renting to smokers can be costly, as apartments must be repainted, re-carpeted or have new draperies to get rid of smoke odors and smoke stains, he said.

Acha of Breathe California acknowledged that landlords can feel caught in the middle when the issue of smoking arises.

"I'm an apartment-building owner, and I experience on a daily basis what callers (to the Breathe hotline) are complaining about. Many landlords don't want to deal with the problem. They don't want to be in conflict," he said.

Belmont, Menlo Park and the county have done extensive outreach to the apartment association, Howard said. The Belmont and Santa Clara County ordinances provide a 14-month phase-in that provides owners time to implement the policies and amend lease agreements.

Renters who just signed a lease agreement for 12 months were also able to live in their units for the year before having to make other arrangements if they wanted to continue smoking inside, he said.

The landlords are also not liable if residents violate the law, provided they have made certain provisions in their rental agreements.

"It's very difficult for a property owner to know when someone's taking that two-minute cigarette break and to run over and be the smoking police," Howard said.

Kniss said county supervisors worked with the apartment association to come up with a workable law.

"The real goal is to get something that will make a difference in the end," Kniss said.

The no-smoking ordinances give residents legal clout, and many ordinances are framed with clauses under municipal nuisance codes. Santa Clara County's law references nuisance law as a cause for the ordinance's validity and also prohibits harassment or threats against anyone reporting illegal smoking.

"Allowing smoking in multi-unit housing complexes exposes adults and children to a cancer-causing substance against their will. Secondhand smoke can travel throughout multi-unit housing complexes through shared ventilation, heating and air-conditioning systems," the county health department's Capili said.

Air-cleaning systems cannot remove secondhand smoke from indoor environments, according to the American Society of Heating, Refrigerating and Air-Conditioning Engineers, the U.S. standard-setting organization on ventilation issues.

"It's a hardship for people with chronic conditions," Acha, of Breathe California, said.

"The No. 1 complaint today on our smoke help line is multi-unit housing. Ten years ago, when I started working here it was about non-compliant bars and restaurants."

Palo Alto hasn't considered a non-smoking ordinance for multi-family dwellings but could "give it serious consideration if the county health department advocated it," Mayor Pat Burt said recently when asked about a possible ordinance.

Councilman Sid Espinosa added that he was surprised Palo Alto residents have not advocated for a similar city smoking ordinance.

"I haven't heard this complaint from other constituents, which surprises me considering the high percentage of Palo Altans who are renters," he said.

The city has a history of banning smoking, having eliminated smoking in restaurants in 1992.

"There was such an outcry," Kniss, a former City Council member, said, noting that businesses thought the ban would harm their bottom line. "But a year later, business improved."

Sitting on the front steps of his Webster Street apartment building last week, smoker Conrad Lenox took a drag from his cigarette. He understands the reason for an ordinance but wouldn't vote for it if given the choice.

He said he does not smoke inside because he knows smoke can get into air vents. He smokes outside where the smoke "dissipates" and doesn't affect others, he said.

"I try to be sensitive to my neighbors. God bless them, I wish I was one of them," Lenox said. Asking tenants to not smoke inside is a reasonable request, he added.

At Laning Chateau, a large Forest Avenue complex, one smoker said people in her building respect the rule of not smoking within. Anyone who is caught receives a notice to refrain.

Smoking outside isn't a guarantee that residents won't be affected, she said. One resident asked her to move because smoke from her cigarette was blowing in the window.

The smoker, who wanted to remain anonymous, said she's glad smoking isn't allowed in the building. She doesn't like to smell it.

"It's a bad habit. It's filthy, even though I smoke," she said.

Belmont Police Captain Dan DeSmidt said the department received about two-dozen complaints regarding violators when the law first took effect. But three years later, "we very rarely get calls. The law has been successful in that it has changed people's behavior, he said.

During city meetings, there were impassioned discussions about the law but since then "there has been a lot of cooperation from managers and owners and residents," he said.

DeSmidt said the public outreach was a critical component in the law's success. Police had a number of community meetings and group meetings inside affected dwellings to clear up any misunderstandings.

"It was widely reported that smoking was banned in the city, but that was not the case," he said.

As for Lytton Gardens, the housing complex is considering a change in its policy, Yearout said.

She defended the facilities' enforcement of its current rules, however.

Smoking is not allowed in Turner's Everett Avenue apartment building but is allowed on a common-use patio and on balconies, according to Yearout.

"We believe smoking occurs but in legal areas. We see no signs of smoking, nor has the fire department seen or smelled any sign of a violation, but they may well be smoking where it is allowed," she said.

That is not good enough, Turner said. The patio area is only 5 feet from the building and smoke drifts in through the front door, she said.

She pointed to a balcony at the rear of the building. Two apartments share the balcony, and their doors are side by side. Smokers who light up might not be technically breaking the rules, but their smoke can drift right into the windows and door of the adjacent apartment, she said.

But not everyone at Lytton agreed with Turner about smoking.

While six residents have signed a petition against smoking, other residents are not so sure.

Asked how they felt about the county ordinance and if they would support a Palo Alto ban, some residents reacted angrily.

"Why would they want to discriminate against smokers?" said a woman who asked to remain anonymous.

But an ordinance might actually help some smokers kick the habit, according to the Laning Chateau resident.

"Considering I smoked for 10 years and just started again, it would probably be a good thing," she said.

Staff Writer Sue Dremann can be e-mailed at sdremann@paweekly.com. Editorial Intern Sally Schilling contributed to this story.

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