Even though e-cigarettes are increasingly being banned throughout California cities and counties Palo Alto’s City Council is not including them in their new proposed smoking ban for apartment buildings. For those of you who aren’t familiar with them e-cigarettes look like the real thing, they glow when you puff on them, and a smoker puffs out a cloud of vapor when they exhale. Many believe e-cigarettes are a “gateway” drug as the number of teenagers using them doubled from 2011 to 2012, and increased 61 percent from 2012 to 2013. Moreover, e-cigarettes have nicotine, emit formaldehyde, are addictive, and can be dangerous for people with heart problems. There are many unknowns with e-cigarettes and this is potentially the reason Palo Alto is not yet banning them in multi-family buildings.
E-Cigarettes are Not Regulated by the United States Government
Because e-cigarettes are still unregulated by the federal government the American Medical Association has issued a statement on its concerns of the safety of e-cigarettes and their potential to increase the likelihood of smoking which is contrary to tobacco company claims that e-cigarettes are a path to quitting smoking.
The Palo Alto city council is considering adding an e-cigarette ban to their already comprehensive smoking prohibition in outdoor eating areas, downtown centers, local parks, and other public outdoor areas as health concerns still surround the relatively new smoking device. The most recent version of Palo Alto’s ever-changing tobacco ordinance includes a smoking ban at multi-family building interiors, but not for e-cigarettes. This potential restriction has been on the proverbial table since 2014; however the city council had decided to wait for more research on the subject, specifically more evidence on e-cigarettes.
Palo Alto Conducted a Landlord-Tenant Survey on Smoking with Predictable Results
Now that the Palo Alto staff conducted survey on smoking in multi-family buildings has been concluded city staff has decided to move forward with this proposed restriction without the e-cigarette restriction in multi-family buildings. In March of 2015 more than 8,500 mailers were provided to tenants and landlords at multi-family buildings which allowed the tenants to participate in an online survey. Ironically only 6% of the potential respondents actually filled out a survey – and 95% of those participating were non-smokers.
Not surprisingly an overwhelming majority 90 percent were in favor of new smoking restrictions with 82 percent supporting a complete smoking ban in all multi-family units, 72 percent want an indoor restriction imposed, and 68 percent said the restriction should be on outdoor common areas. The respondents indicated that children’s health concerns were chief amongst the reasons for favoring prohibitions with second-hand smoke being a close second concern.
Even though it was very low survey participation rate the results made city staff’s decision to move forward with the city-wide restriction easy. Other Bay Area cities with similar restrictions include San Rafael, Richmond, and Walnut Creek up north, and Belmont on the peninsula. Santa Clara and San Mateo County counties also have similar restrictions for multi-family buildings in their jurisdictions. In fact, it is a breach of a property manager’s fiduciary duty not to include a “no-smoking” provision in leases in these jurisdictions which prohibit smoking.
Palo Alto city staff has recommended that e-cigarettes be included in the city-wide tobacco ordinance but not restricted in multi-family buildings because there is currently no evidence that the “vapor” emitted by e-cigarettes travels between unit walls.
Property Managers Can Ban All Smoking in Buildings They Manage Including E-Cigarettes
Arguments posed by survey respondents opposed to smoking restrictions were framed in the “infringing property rights” vein. However, it is common knowledge that a building owner or property manager can absolutely prohibit any tobacco consumption on their property by placing a simple clause in the lease the tenant signs. A violation of the lease provision can result in an eviction.
If Palo Alto goes through with the current proposed ordinance it will only be a matter of time before e-cigarettes are included in the prohibition. As stated above landlords and property managers can prohibit smoking of any kind at any location by the simple addition of a lease provision.
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