By Jorge Casuso

June 23 -- The City Council Tuesday will consider an ordinance to ban smoking in all common areas of multi-unit residential properties, including condominiums, except in a designated area.

If approved, Santa Monica would join Oakland -- whose ordinance serves as a model for the proposed measure -- as the only other city with rent control to impose such a ban after weighing concerns it could be used by landlords to evict tenants.

While smoking in most indoor common areas is already banned by California law, the Santa Monica ordinance would follow Oakland's lead and extend the ban to outdoor common areas, including patios, garden and pool areas and parking lots.

Under the proposed ordinance, a property owner can choose to designate a portion of an outdoor common area where smoking is allowed. The area must have a clearly marked perimeter and posted signs and must be at least 20 feet from any indoor area where smoking is banned or any outdoor area used by children.

"Based on public feedback and approaches used by other cities, allowing (but not requiring) designated smoking areas appears a fair and reasonable compromise to accommodate smoking under certain circumstances where it is least likely to impact other residents," staff wrote in its report to council.

In crafting the ordinance, staff grappled with whether to include condominiums (the proposed ordinance does) and whether to grandfather smoking rights for existing rent control tenants (it doesn't).

The decision was made after weighing concerns raised by Rent Control Board staff that the ability of a tenant in a controlled unit to smoke in outdoor common areas "might in certain cases be deemed by the Board a 'housing service' that could not unilaterally be taken away by the landlord or used as the basis for eviction under the rent control laws," staff wrote.

Under the proposed ordinance, a private person can sue the smoking tenant in court for damages or civil penalties, providing tenants suffering from second-hand smoke with a direct legal remedy. That form of enforcement is used in Oakland and Calabasas, among other cities.

Allowing others to sue "has the advantage for smoking tenants of not directly impacting their tenants' rights or tenancies since it need not alter the existing legal grounds for eviction," staff wrote.

"This is turn could minimize the temptation for unscrupulous owners to use smoking as a pretext to remove tenants in low-rent controlled units."

Tenants who violate the ordinance would be fined $100 for the first violation, $200 for a second violation within one year and $500 for a third and subsequent violations within one year.

In addition to banning smoking in common areas, the ordinance would create a tobacco retailer licensing program to help assure that minors are not sold cigarettes. The provision would:

* Require all sellers of tobacco products to have and display a special license.

* Prohibit selling tobacco products to minors or violating other related laws.

* Provide for suspension of the license after the first and second violations within five years. The license would be revoked after the third violation within five years.

The council requested the proposed measure after testimony at the April 8 council meeting from dozens of health experts, anti-smoking activists and tenants who said their health is at risk from second-hand smoke. ("Council Strengthens Existing Smoking Ban," April 9)

Some tenants said they were spending thousands of dollars on air filters, leaving doors open and even being driven from their homes by neighboring chain smokers.