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By Jorge Casuso

October 29 – Fearing it could give Santa Monica landlords a “tool” to evict rent control tenants, the City Council Tuesday delayed voting on a law that would ban smoking in the common areas of multi-unit residential buildings.

The decision came more than six months after the council directed staff to draft the ordinance, which would prohibit smoking in all indoor and outdoor common areas at multi-unit residential properties, including condominiums.

But council members worried that the law could lead to the eviction of rent-control tenants by landlords who want to raise rents to market rates when a unit is vacated, a concern that led the Rent Control Board to pass a resolution opposing the proposed measure.

“We need to make explicit that we’re not creating grounds for eviction,” said Council member Kevin McKeown. “That’s my primary concern here.

“I don’t want to see someone lose a rent control apartment because we didn’t see this through,” McKeown said.

“I’m very concerned because the stakes are so high. . . life affecting,” said Council member Ken Genser. “I think we have to reduce or eliminate the chances that someone could be evicted for this.”

Other council members echoed those concerns, adding that landlords should not be put in the position of enforcing the law.

“I’m concerned about protecting the tenants so they don’t get evicted,’ said Mayor Herb Katz. “At the same time, I don’t want to make landlords responsible for enforcement.”

As with other violations of Santa Monica’s smoking law, smoking in common areas could be deemed an infraction subject to citation by law enforcement, said Adam Radinsky. But this would make enforcement of the law difficult, he warned.

“In the private residential setting, this raises the question of how enforcement would operate,” Radinsky wrote in his staff report to the council.

“Unlike all of the current areas of regulation, which are essentially public places, there is no obvious or easy way for officers to enforce the regulation in private residential properties, or for other City staff to enforce.”

Because the violations would be considered infractions, they could not be enforced through a citizen’s arrest.

Instead, residents would need to file a civil action in court to get an injunction or collect damages, Radinsky said.

The challenge, Radinsky said after the meeting, is to draft a law to “protect tenants from eviction, but also protect tenants from second-hand smoke.”

Council member Pam O’Connor worried the law would pit neighbor against neighbor.

“I still have concerns moving in this direction,” O’Connor said. “We really would be arming and pitting neighbor against neighbor.

“I’m just not convinced this is the mechanism or the route to go,” she said.

But some council members noted the problem already exists between tenants who smoke and those who complain about being exposed to the second-hand smoke.

“The current system is also neighbor against neighbor,” Genser said.

“We already have neighbor against neighbor,” said Council member Bobby Shriver. “They’re already fighting.”

Whatever shape the final ordinance takes, it is clear the council would mandate posting no-smoking signs in common areas and launch an education campaign.