Vaping: Should California Landlords Allow Tenants to Vape in Rentals?

Vaping is a relatively new trend. Most people still aren’t clear how smoking and vaping are similar and different that’s creating a lot of confusion for landlords in California where some of the strongest “Right to clean air” city ordinances exist. 

Bottom line, landlords have the right to ban vaping just as they do other tobacco products that leave a residue on exposed surfaces in a rental unit – even if that residue is much less with vaping than tobacco when it is smoked.

As a relatively new phenomena, vaping simply hasn’t been around long enough for a lot of the beliefs and facts to get sorted out. There’s a great gap in opinions on the subject between people who vape, and people who do not smoke E-cigarettes.

How smoking and vaping are similar is that they are both tobacco based products that convey nicotine by inhaling it. While smoking burns the tobacco and produces smoke which is inhaled, E-cigarettes also known as vaporizers deliver a vapor of heated liquid containing nicotine which the user inhales.

While E-cigarettes don’t contain tobacco but rather nicotine oils, they are often shaped like a cigarette which look about the same to non-smokers. The cloud of vapor emerging from the person using it may look like smoke, but it’s actually a lighter, whiter colored vapor which contains some of the same residues that smoking conveys but in greatly reduced form.

Some manufacturers claim only 20% of the odor and residues of regular smoking is produced by E-cigarettes.  However, E-cigarettes also contain chemical flavors that can leave behind a residue that builds up on walls, carpets and floors over time. Just because this residue is much less than traditional smoking doesn’t mean that it does not accumulate with regular use over time which will require extra cleaning before the next tenant can move in who expects the right to clean air.

E-cigarettes are advertised as being a safer way to use tobacco products compared to the more traditional cigarettes, cigars and pipes. However, research is showing that the devices do carry risks to the user, some of which are even making headlines with people being admitted to hospitals with severe lung injuries. They also have fire hazards from the lithium-ion batteries, even if less than the hazards from traditional smoking.

One issue is perception. Smoking and vaping look similar to the uneducated eye. People vaping usually convey the same impression as someone smoking that non-smokers want to avoid. A cloud of smoke or a vape cloud spreads beyond the control of the person making it, and other people rightfully feel their rights begin at their nostrils regarding what they are forced to breath.

There are now over 2.5 million E-cigarette users or 15 percent of adults under 40 vape . What California landlords need to understand about the perspective of people who do vape is that they do not consider it smoking and they feel perfectly legitimate checking the “Non-smoker” box on a tenant application form. 

They also do not believe the vapor emitted from an E-cigarette device is considered secondhand smoke for others.

This divergence of viewpoints between people who vape and people who don’t grows even greater regarding the long term effects of the residues of vaping flavors – because odors are subjective and can smell very different depending upon the nose who is smelling it.

Vaping is actually something of a misleading term, because the vapor is glycerin – not water vapor – which is slightly oily.  This is an aerosol gas that contains particles that include chemical flavoring and preservatives that stick to any surface they come into contact with which can build up over time.

While vaping doesn’t produce the dingy yellow tobacco stain like traditional smoking that can be very difficult to get rid of, carpets, painted surfaces, and ductwork nonetheless are difficult and expensive surfaces to clean. Deep cleaning carpets, fabrics and upholstery, washing all surfaces and potentially repainting the walls may be necessary that would not be necessary after a non-vaping tenant inhabited the unit.

Landlords need to think through the costs of cleaning after a vaping tenant and include that as part of the security deposit.

Landlords in California who also have the most stringent right to clean air ordinances in the nation need to think through the public perception of allowing vaping on the rental property.  People who do not like to be around tradition cigarette smoking also prefer to avoid being around E–cigarettes.  If you prohibit traditional smoking but allow vaping, many otherwise qualified tenants may be turned off at wanting to rent at an apartment where there is vaping. It looks to them as pretty much the same thing as smoking and they want to avoid it for themselves and their family.

While there are not the risks that traditional smokers have of falling asleep with a burning cigarette, there are still significant fire hazards associated with E-cigarettes.

195 vaping-related fires or explosions were reported in the United States in the eight-year period ending in 2016.  Many of these incidents occurred when the E-cigarette or spare lithium-ion batteries were in the user’s pocket. Others occurred when the batteries were being charged and the occupants were away. All fires or explosions have been related specifically to the battery.

Bottom line, it’s up to the landlord whether E-cigarettes are allowed and if they are worth the extra cleanup costs and potential fire hazard. Remember, vaping tenants will check the non-smoking box on the rental application and feel they are being truthful. You need to be very clear in your tenant application form and follow up questions regarding E-cigarettes.

The landlord needs to make sure the tenant understands the smoking and vaping rules before renting to them. Explain that allowing vaping entitles the landlord to an additional cleaning fee in the cleaning deposit. Be prepared for the vaping tenants to say it’s not a problem and minimize what they believe the results of their vaping will be.

Fact is, nobody knows how the rate at which this will accumulate over time.

Odors are highly subjective to different noses. Flavors the vaping tenant may like the next tenant may feel entirely different about if the odor is left in the rental. Every nose is different. The costs of additional cleaning after a vaping tenant leaves – that would not be required of a tenant who did not vape and leave a chemical and flavored residue – are costs that are fair to be added to the cleaning deposit under California Law.