CCMIN 12072021 - Laserfiche WebLink

Councilmember Balch expressed hope they could work together to get to step one and continue to evaluate the ordinance in the future. He stated they do not need to specify focusing on education in enforcement because it is a common concept. The lease violation being a cause for eviction is where he has the biggest challenge. He would like including the ordinance in the lease agreement to be at the option of the property owner. In response to Councilmember Balch, Assistant City Attorney Seto stated the addition of a cessation program would be difficult to edit from the dais. If the City Council wishes to go in this direction, staff would bring the item back for introduction with the new language. In response to Assistant City Attorney Seto, Councilmember Balch confirmed he does not want the ordinance to be included in the lease unless the property owner wanted it to be in there. He confirmed the stricter rule would apply if a property owner wanted to restrict smoking further than the ordinance. Councilmember Balch stated the financial penalty for a first offense should be at least mitigated if not waived through an educational program. He advised the first offense could also be just a warning. In response to Mayor Brown, Interim City Manager Dolan confirmed code enforcement often starts with a warning and may depend on the situation and how egregious the violation is. He advised it would be easier to codify a warning for the first violation. Councilmember Balch clarified focusing on education and not enforcement is still his overtone. He has a problem with a private party being the basis for a personal lawsuit. He stated if the City is putting an ordinance in place, the City should be the one to enforce it. The basis of the suit would be a violation of the City's ordinance. Assistant City Attorney Seto clarified instead of a general nuisance action someone would have to prove differently based on the impact to themselves because in this situation they would be using the violation of the City's ordinance as the basis for a lawsuit. In response to Mayor Brown, Councilmember Balch agreed a landlord can sue for damage to their rented unit from smoke, but noted this can be done already without citing the ordinance as the basis for the lawsuit. Assistant City Attorney Seto advised in Mayor Brown's example the civil suit would be for a general lease violation whereas the language being discussed gives a third party the basis to bring a lawsuit due to second-hand smoke exposure. Mayor Brown clarified in her example the damage would be from a neighbor's smoke penetrating the unit she hypothetically owns and rents. Assistant City Attorney Seto stated the owner could still bring a private lawsuit for the property damage and the current proposal would be a further basis to support it. Councilmember Balch stated having the language makes sense when the second-hand smoke health risk is in addition to the physical smoke damage in Mayor Brown's clarified example. His challenge is when the ordinance is the only basis for a lawsuit. In response to Councilmember Balch, Assistant City Attorney Seto clarified someone could bring a private lawsuit saying second-hand smoke has caused them harm, using a neighbor's documented violations as proof. She advised she is not sure how the court would react to this argument, but noted the ordinance provides people with this legal avenue. This gives people the option to legally pursue their neighbor themselves if they feel as if the City is reluctant to do so. In response to Councilmember Narum, Assistant City Attorney Seto stated this provision is not in Pleasanton's multi-family rental ordinance because they had the management companies take enforcement responsibility. City Council Minutes Page 11 of 18 December 7, 2021