Smoke-Free Nation 

Berkeley's new outdoor smoking ban is one of several recent Bay Area laws that mark the beginning of the end to smokers' rights.

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But the most overlooked aspect of the ordinance is a provision that made Oakland the first city in the nation to pass a law regarding what is known as "landlord disclosure." When landlords in Oakland show prospective renters their apartments, they're now required to disclose which units are smoking and which are not. Landlords also have to tell new tenants how they officially handle smoking complaints in their buildings. In theory, landlord disclosure will empower prospective renters to make informed decisions about where they want to live.

However, most people seem unaware of the new rules. A quick and informal survey of Oakland landlords posting nonsmoking rentals on Craigslist found that none knew about the change. Chuck Chakravartula, who had three different apartments for rent, in three different buildings in the Lake Merritt area, said he hadn't heard about the new disclosure rules, but added that he's "always preferred nonsmoking." He said that in his experience, it's often the guests of his tenants who violate the smoke-free policy in his buildings, and that "just talking" to the people involved usually resolves things. "I'm not sure waving an ordinance in their face works as well," he said. "It sets up a different tone."

But Chen said that many condo owners in Oakland are seizing on the new law as a way to make their entire buildings smoke-free. "I've gotten calls from four or five condo owners," she said. "Smaller condo associations that are predominantly owner-occupied seem to have a better chance of success at going smoke-free. ... If you have a lot of units, this is very difficult to achieve since many condo owners are absentee landlords and ... just want to collect their rent."

Serena Chen is helping Robin Brooks, a resident of the Essex, a twenty-story luxury tower near Oakland's Lake Merritt, organize her roughly 270 neighbors. "I want us to be the first downtown high-rise to go smoke-free," Brooks explained. She began renting her studio apartment with a view of the lake in 2002 just after the building was completed. A couple of years later, she bought her unit when the Essex changed owners and converted to condos.

Back in 2002, Brooks liked her neighbor well enough, but things turned sour when the single mom next door hooked up with a live-in boyfriend who was addicted to nicotine. Luckily for the kids he wasn't allowed to smoke inside. Unlucky for Brooks. "He pretty much camped outside on their balcony literally chain-smoking. And that was when I realized that it was a completely untenable position to have someone smoking in a multi-unit development," Brooks said. "I had my choice: I could either close the sliding door to my balcony and my window, and suffocate because there is no other source of fresh air entering the building, or I could leave everything open and be exposed to secondhand smoke. So there were no good options — which is how I got involved in trying to stop smoking at the Essex."

Because it was still a rental property at the time, Brooks was able to convince the building manager to deal with her secondhand-smoke conflict. The manager gave Brooks' next-door neighbor an ultimatum: either force her boyfriend to take the elevator down to the street when he needed to light up, or move out. They moved.

But Brooks lives in fear that history will repeat itself. Someone new could move into a nearby unit and start generating secondhand smoke all over again, and this time, since the entire building was converted to condos in 2004, Brooks would find it a lot more difficult to solve the problem. "Whenever you're dealing with a homeowners' association, you're dealing with the most absolutely frustrating dysfunctional bureaucracy that you could ever want to be involved in," she said. 'You have every right to be upset if secondhand smoke is coming into your home. It has been identified by the California Air Resources Board as a toxic air contaminant. Why will homeowners' associations not enforce that?"

Earlier this year, Essex condo owners voted on whether to make their building smoke-free, and according to Brooks, a large majority of those who cast ballots favored her plan. But the number of residents who voted fell short of the requirements governing condo associations, so the plan failed. One of the problems, Brooks said, was that many of the units generate income for their owners, who collect rent from tenants. So those owners have more to lose — and less to gain — financially by going smoke-free.

Brooks views her antismoking campaign as a struggle between different economic interests. "The battle right now, in my opinion, is essentially between Realtors, mortgage brokers, developers — all of those people in the housing industry — that want to keep the market as big as possible," she said. "They live in fear that any restriction might make the market smaller. They don't get it — that there's a global movement afoot to stop smoking in multi-unit housing.... All I'm talking about is protecting our investment by protecting our health. And that nobody in their right mind is going to want to buy into a condominium development if their next-door neighbor smokes."

One East Bay city is encouraging residents to take matters into their own hands. In September 2006, Dublin legally defined secondhand smoke as a nuisance. The law bars Dublin officials from spending any city dollars to enforce the ordinance, but nonsmokers are free to sue their neighbors to make them stop smoking in condos or apartment complexes.

Dublin residents Nancy and Chuck Sanders, a married couple in their sixties, did just that. They moved into an apartment in the fall of 2006 and immediately noticed that their downstairs neighbor smoked a lot of cigarettes. "He was not just a smoker, but a very heavy smoker," Nancy said.

She and her husband quickly became experts on their new neighbor's habits. He would sit on his patio reading a book, chain-smoking, with the smoke drifting up into their living room windows. Or he'd lock himself in his bathroom with the fan going, and they could smell the smoke in their own bathroom directly above. Or he'd sit by his open bedroom window and blow the smoke outside, whereupon it would drift the few feet up into their own bedroom window. "We'd sleep with our window open and wake up in the middle of the night with a headache, nausea, and a sore throat," Nancy said.

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