The following are comments I prepared for submission to the City of Santa Rosa in response to its undated revisions to the proposed smoking ordinance.
The proposed ordinance can be found at the City of Santa Rosa website .
The proposed revised ordinance continues to require property owners and managers to enforce the ordinance against smokers, continues to subject owners and managers to criminal charges for the acts of third parties (smokers) and continues to include vague language regarding steps owners and managers can take to avoid criminal, and civil, liability.
Section 9-20.080 should omit the requirement that the required language be included in leases “as soon as possible.” The phrase “as soon as possible” is open to interpretation. There needs to be a definite date for compliance.
The date to include the required language in leases should be July 1, 2016, in order to confirm with effective dates for state laws. Lawyers look for changes in the law to be effective January 1 or, less often, July 1. A March 27 date is a trap for innocent landlords and is yet another ground for tenants to sue landlords. (9-20-.080(A).) We saw this problem with the new required language for 30 and 60 Day Notices. One of the results was that the already overburdened court system saw numerous cases filed twice because landlords were not aware of the new requirement that became effective at an odd time of the year.
The exact steps that landlords need to take in order to comply with the ordinance should be clearly listed. (9-20-080(B).) The phrase “such as” should be removed. Subpart B should read: “Landlords are required to post signs stating there is no smoking on the premises.”
The requirement that landlords send “…every tenant information on the requirements of this ordinance…” is redundant and should be eliminated because landlords are required to include a provision in leases and rental agreements prohibiting smoking pursuant to the language of the ordinance contained in 9-20-080(A).
The language that landlords contact individual tenants in the event of a complaint “…to further educate on the requirements this ordinance (sic)” is vague. Contact how? Educate how? This language opens the door to lawsuits against landlords and managers by tenants. (9-20-080(B).)
Landlords and property managers should not be required to enforce the ordinance. (9-20.808(B).) Further, the language that “So long as Landlord (sic) can demonstrate that it is making good faith efforts to implement appropriate steps towards compliance with this
ordinance…” is vague and subjects landlords to lawsuits by tenants. (9-20-808(B).) (See above discussion.) The phrase should be omitted.
Section 9-20.150 continues to subject landlords and managers to criminal charges including being charged with a misdemeanor. A property owner or manager should not be subject to criminal charges for the acts of a third party; i.e., the smoking tenant.
Enforcement of the proposed ordinance is problematic for landlords and managers especially since evidence that a particular tenant is smoking is elusive. Law enforcement trained in investigations and collecting evidence should enforce the ordinance, not landlords and property managers who do not have law enforcement training. The criminal penalties should be against the smokers and not against landlords and managers who do not have police powers.
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.