COMMENTS REGARDING THE OCTOBER 15, 2014, PUBLIC DRAFT OF THE SANTA ROSA SMOKING ORDINANCE

The City of Santa Rosa is preparing a smoking ordinance which, in part, requires landlords and property managers to take steps to enforce the no smoking rules for tenants.  The City solicited feedback and I prepared the following comments which were presented to the City.  Subsequently, the City made revisions.  I prepared comments to the revisions which are also on my website. 

Landlords need to be aware of the proposed ordinance which can be found at the City of Santa Rosa website .

My initial comments are as follows:

The ordinance as drafted requires property owners and managers to enforce the ordinance.  In addition, it subjects owners and managers to criminal charges for the acts of third parties.  Further, it is vague as to the “appropriate steps” that owners and managers should take to comply with the ordinance.

The ordinance applies to owners and managers.  This would include property management companies and individual on-site managers.  (9-20.030 Definition of “landlord.”)

Landlords including owners, property management companies and on-site managers are enforcers of the ordinance.  (9-20.808(B).)  They are required to take “appropriate steps to ensure tenant compliance with this chapter.”  The term “appropriate steps” is vague and needs to be defined in the ordinance.  As drafted, the vague language is particularly problematic in situations where one tenant accuses another of smoking and the suspected smoker denies smoking.  A tenant is entitled to 24 hour notice of entry into a unit which is plenty of time to air the unit out before a manager can enter and give the unit a “sniff test.”  How are the owners and managers to determine which tenant is telling the truth.

Further, this opens the door to disgruntled tenants filing civil suits against the owners and individual managers for either failing to take “appropriate steps” or, in the alternative, for taking “appropriate steps” against an accused tenant who denies he or she is smoking in the unit.

In addition, Section 9-20.150 subjects owners and managers to criminal charges for failing to take “appropriate steps.”  Subpart (A) makes it unlawful for the owners and managers to “fail to comply with” the provisions of this chapter.  Subpart (C) provides that any person who violates any provision of this chapter SHALL be guilty of an infraction.  Subpart (D) provides that any person who violates any provision of this article more than three times in one year SHALL be deemed guilty of a misdemeanor.  Subpart (E) states that each day a violation continues is a separate violation.  Therefore, any owner or manager who fails to “take appropriate steps” or, worse, takes some steps that are determined not to meet the vague standard of “appropriate steps,” for more than three days SHALL be guilty of a misdemeanor.  A property owner or manager should not be subject to criminal charges for the acts of a third party.

The criminal charges would also apply to any owner or manager who fails to include the required language in their leases or rental agreements.  On day four of such failure, the owner or manager SHALL “be deemed guilty of a misdemeanor.”

This ordinance needs to put enforcement of the ordinance on law enforcement officers who have police powers not available to owners and managers.  It also needs to define exactly what

“appropriate steps” should be taken by the owners and property managers to avoid liability under the ordinance.  In addition, it needs to exempt owners and property managers from criminal charges.

Linda Ryan
Board Member
North Coast Rental Housing Association

The above is not legal advice and should not be relied upon as legal advice.  You should consult with an attorney of your choice for individualized advice regarding your own unique situation.  No attorney-client relationship is formed between Linda Ryan and you by receipt of and/or viewing the above e-mail communication.  

Dated: December 8, 2015