Public Comment

The “Substantial” Rock That Could Shipwreck Smokefree Housing

By Carol Denney
Friday September 27, 2013 - 10:11:00 AM

Rent Board Attorney Matt Brown’s passionate “I got nothing” statement to the Open Government Commission last week confirmed publicly that the Rent Board has absolutely no shred of evidence that strong smokefree laws result in evictions. He searched high and low, he said, and came up with…nothing.

Well, of course. There is no evidence of any connection between evictions and smokefree regulations nationally, even internationally. Most smokers in Alameda County already smoke outside, and studies show the few who don’t, even those with mental or addiction challenges, have no more difficulty with compliance than anybody else. Most people know secondhand smoke kills, travels throughout shared-wall housing, etc. Most people aren’t set on killing the neighbors. 

You’ll find embarrassing implications to the contrary scattered throughout official Berkeley discussion of smokefree regulations in multi-unit housing, but not because there is any factual foundation for thinking that a “rash of evictions” is on the horizon of any community that has smokefree multi-unit housing laws, or that people who manage to no longer smoke in supermarkets and movies will find such laws confusing. 

But the most-cited reason Matt Brown insists that a strong law making multi-unit housing smokefree is incompatible with the Rent Stabilization Board Ordinance has to do with something else--the legal interpretation of the word “substantial.” Substantial. This is the rock with the potential to shipwreck the most inexpensive way to save lives and reduce health care costs in Berkeley history. 

A landlord cannot impose a unilateral change to a lease or rental agreement if it is a substantial alteration under the rent control ordinance. And smokefree regulations probably look “substantial” to someone who enjoys smoking in bed, at breakfast, anywhere anytime he or she wishes. 

But all common law presumes habitability in rental or lease agreements. You cannot rent a place without bathroom facilities, without heat in the winter, without drinkable water. One can safely presume the necessity of breathable air. Common law has recognized this principle so well, for so long, that it’s comic to suggest that anyone, property owner or not, can give a tenant permission to do something which kills other tenants in the building who simply have to breathe. 

The very few outdated lease or rental agreements which specifically allow smoking indoors would not survive a court challenge by neighbors forced to breathe smoke involuntarily, because secondhand smoke is recognized by the State of California as a serious toxic air contaminant which a smoker’s neighbors have no option but to breathe. But without a strong law in Berkeley which recognizes that secondhand smoke as a nuisance, as Richmond’s law does, those choking neighbors trying to protect their own and their family’s health will have a lot of difficulty finding a lawyer to take their case. 

This is the real challenge before the Berkeley City Council: support the current weak proposal which only affects new leases, leaves the majority of tenants without protection, and requires tenants to embark on the near-impossible job of suing their neighbors for miniscule fines which won’t result in clean air anyway, or, alternatively, embrace a strong law, such as Richmond’s, which does recognize that secondhand smoke is a nuisance, which lends weight to legal efforts to protect those forced to breathe smoke involuntarily and represents a realistic step toward smokefree air for low-income tenants who can’t afford to move. 

No landlord is within his or her rights to rent or lease a living space that will kill the inhabitant for simply breathing. But getting those rights recognized is an expensive prospect most low-income tenants cannot afford without a strong legal basis. Let’s get this one right, Berkeley. The Rent Stabilization Board lawyers, who probably all live in the hills, will catch up someday. But let’s not allow health policy to be hijacked by mythology. Let’s save lives, and make sure those with deadly habits are not allowed to force them on thousands of innocent people.