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Second-Hand Smoke Leads Santa Monica Woman to File Fair Housing Complaint

Santa Monica Real Estate Company, Roque and Mark
By Jason Islas
Staff Writer

April 2, 2013 -- Santa Monica's Consumer Protection Unit (CPU) helped a woman with a severe respiratory disability relocate to get away from the second-hand smoke wafting in from her neighbors' apartments, according to City staff.

Zelda Alvarado (whose name has been changed by staff to protect her privacy) filed a complaint with the CPU after her landlord, G & K Property Management, denied her permission to move into a smoke-free unit in her building because of a wait-list system in place.

"First, I talked with several staff members at G & K, which is a fairly large management company," said Diane Varady, an investigator with the City Attorney's Office. "They admitted the denial of Zelda’s request, and they pointed to their wait-list system, saying that Zelda could not cut in line ahead of other tenants and applicants.”

The CPU, however, maintained that Alvarado's condition required the landlord to provide reasonable accommodations.

“There are two basic legal requirements for a reasonable accommodation,” staff said. “First, the accommodation must be needed in response to the nature of the tenant's disability.”

Alvarado had provided a doctor's statement confirming the severity of her condition and, therefore, the need for her to move.

The second requirement is that letting Alvarado move wouldn't cause an “undue burden” to the landlord.

“The reasonable accommodation law is extremely flexible,” said Deputy City Attorney Adam Radinsky, who heads the CPU. “If it's a triplex with a ma-and-pa owner, there may be other options that might need to be considered.”

Since G & K are a larger property management company, the options to accommodate Alvarado were plenty, said Deputy City Attorney Gary Rhoades.

Alvarado's situation could become a thing of the past since, last year in October, the Santa Monica City Council adopted a new anti-smoking ordinance that bans smoking in all new apartments and new occupancies.

“Over time, since there are no new smoking tenancies created,” eventually, smoking will be prohibited in all apartments in Santa Monica, said Radinsky.

The new law also required tenants to designate their units as smoking or nonsmoking. If tenants didn't designate their units, those units remain undesignated.

When the law was adopted in October, Council member Kevin McKeown was hesitant because he worried that requiring that units be publicly designated as smoking or not smoking might lead to harassment of smokers.

The ordinance, as it passed, upholds tenants' protection from eviction, since landlords cannot unilaterally change the designation of a unit while a tenant is living there, Radinsky said.

“We've been mindful in our local ordinances to acknowledge and balance both valid health concerns and housing stability for renters,” McKeown said. “While the local law we adopted actually goes farther than I wished, and may lead to renter harassment, I'm grateful it was carefully crafted to avoid evictions.”

However, a proposed State law, introduced in February would make it illegal to smoke in any apartments or condos and would leave to the discretion of the landlord designation of nonsmoking areas.

“AB746 as currently worded makes smoking in any apartment or condo a criminal infraction, which would subject smokers to losing their housing,” McKeown said.

In Alvarado's case, Santa Monica's nonsmoking law wasn't at issue, but in the future the law could prevent similar situations from arising, since someone moving into an apartment would know whether their neighbors are smokers or not.

Alvarado's complaint was one of seven that the CPU has fielded in the last five months, more than twice the number of complaints the CPU dealt with in the 2011/2012 financial year, according to officials.

"Zelda got her reasonable accommodation without having to resort to litigation," said Rhoades, “That’s our goal every time.”

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