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Clearing the Air
Common Ground, November/December 2002
P. Michael Nagle
WARNING: Secondhand smoke can be dangerous. But are you
responsible for protecting your residents from it?
Cigarette smoking is the single most preventable cause of
disease and death in the United States. Tobacco-related deaths
number more than 430,000 each year-more than from AIDS, alcohol,
cocaine, heroin, homicide, suicide, car accidents, and fires
combined. Medical costs directly attributable to smoking total
more than $50 billion per year. You might think that this is
strictly a problem for smokers, but in fact, every year, 62,000
nonsmokers die from coronary heart disease and another 3,000
die from lung cancer-caused by secondhand smoke, also known as
environmental tobacco smoke (ETS).
For smokers, the solution is obvious: quit. For nonsmokers,
the issue is more complicated. You can choose to avoid circumstances
in which you're likely to encounter secondhand smoke, but there
are many times when that's not so easy. Without going out of
your way, you'll come across ETS in the workplace, in restaurants,
even where you live. And it's not easy to figure out whose problem
that is.
DEAD TO RIGHTS
The National Institutes of Health's Report on Carcinogens,
published in January 2001, lists ETS as a "known" human
carcinogen, which means that there is a direct cause and effect
between exposure to ETS and contracting lung cancer. A 2001 Journal
of the American Medical Association clinical investigation
found direct evidence that ETS causes coronary dysfunction in
nonsmokers. The Centers for Disease Control and Prevention reports
that there are "measurable levels of continine in the blood
of 88 percent of all nontobacco users." (Continine is a
metabolite of nicotine whose presence indicates a person's exposure
to tobacco smoke.)
If that's not enough, the 2000 Surgeon General's Report on
reducing tobacco use states:
ETS exposure remains a common public health hazard that is
entirely preventable. Most state and local laws for clean indoor
air reduce but do not eliminate nonsmokers' exposure to ETS;
smoking bans are the most effective method for reducing ETS exposure....
Optimal protection of nonsmokers and smokers requires a smoke-free
environment.
Many jurisdictions have taken the surgeon general's advice
and now prohibit smoking in the workplace and in public buildings.
Indeed, as long ago as 1978, a federal court found a ban on smoking
in public stadiums in New Orleans to be within the city's police
powers. Similar bans have been upheld across the country with
regard to schools, restaurants, bars, theaters, hospitals, libraries,
museums, art galleries, hotel lobbies, child-care centers, malls,
public transportation (buses, trains, subway systems), playgrounds,
and recreation centers. And, for nearly two decades now, smoking
has been banned on all domestic flights in the United States.
The message is clear: There is no constitutional or legal
right to smoke, especially when other people may be affected.
The body of knowledge concerning the dangers of smoking both
to smokers and to innocent bystanders is so great, and the data
so overwhelming, that virtually any ban on smoking seems possible.
In an article for Common Ground five years ago, I wrote:
"The current anti-smoking sentiment in America-coupled with
a rash of anti-smoking legislation and an increased knowledge
of the dangers of secondhand smoke-may eliminate the last refuge
of diehard smokers: their own homes." We are even closer
to that prediction today, with the battle raging on a number
of fronts.
On Dec. 11, 2000, the Village of Friendship Heights, in Maryland,
passed a landmark anti-smoking regulation that made it unlawful
to smoke or discard tobacco products in all buildings and parks,
on sidewalks or sodded areas, and on all public rights of way.
In other words, the regulation prohibited smoking in public.
A court challenge was promptly mounted, and on March 2, 2001,
Montgomery County Circuit Court Judge Durke G. Thompson granted
a temporary injunction against the regulation. In a well-reasoned
and thoughtful opinion, Thompson said that the Friendship Heights
Council's attempt to shield its citizens from a "significant
health risk" was "admirable." He wrote: "[N]o
one is challenging that tobacco products are harmful and unhealthy
to users, and annoying, dirty, and potentially harmful to nonusers.
This proposition appears to be beyond debate in our modern society."
But good intentions weren't enough. Friendship Heights is
a special taxing district, not an incorporated municipality,
and thus the powers granted it by the Maryland legislature "do
not include general police powers." After taking a close
look at the nature of the regulation, Thompson concluded that
it was an "unauthorized expansion" of Friendship Heights'
powers. In a statement that should be taken to heart at all levels
of our government, Thompson opined: "Ultimately, the public
interest is best served by good government, not government that
acts without appropriate authority." The inference was clear:
Had a jurisdiction with normal police powers-that is, most cities
and counties in the United States-passed the ban, Thompson would
have upheld it and refused to issue the injunction.
More recently, a New York City cooperative association, 180
West End Avenue Cooperative, enacted a complete ban on smoking
for new residents. Smoking was already prohibited in common areas,
but, according to board president Scott Wechsler, a real-estate
attorney, the co-op still received complaints. "We've had
shareholders complain that they smell smoke coming through the
vents," Wechsler told the New York Times. "We've
made extensive attempts to remedy potential penetration of smoke
between units. Part of the problem is that you're never certain
which apartment smoke may be coming from."
Current residents of the co-op are grandfathered, but the
building one day could be entirely smoke-free. As for the effect
on unit marketability, the board surveyed local real-estate agents
and determined that many New Yorkers would be delighted to live
and raise their children in a smoke-free environment.
BANNED AID
Of course, the question on everyone's mind is whether such a
ban is enforceable. In 1998, after some residents complained,
the U.S. Department of Housing and Urban Development facilitated
a conciliation agreement in which the Park Towers Apartments,
in Loves Park, Illinois, would go smoke-free beginning with tenants
who moved in after March 15 of that year. Violators of the no-smoking
policy would get a written warning and then be subject to eviction.
As far as I know, the ban has never been challenged.
In Dworkin v. Paley, an Ohio appeals court held that the
presence of ETS in an apartment building could be considered
a breach of the covenant of quiet enjoyment. In Fox Point
Apartments v. Kippes, a Lackamas County, Oregon, jury unanimously
found a breach of the warranty of habitability when a smoker
moved into the unit below a nonsmoker who then suffered nausea
and respiratory problems. Other lawsuits have alleged battery,
intentional infliction of emotional distress, nuisance, negligence,
trespass, breach of contract, and constructive eviction. The
results (and verdicts) have been mixed, even when different lawsuits
have made the same allegations.
Smoking is also playing a major role in some child-custody
decisions. In a 1993 case in Duval County, Florida, Fourth Judicial
Circuit Judge Bill Parsons noted: "I'm not saying adults
can't smoke. I'm just saying don't do it in front of a helpless
child. Secondhand smoke is killing children, and I think it's
time for the courts of this country to help these children."
On a less emotional but equally significant note, a New Jersey
judge presiding over a custody case in 1994 said: "Clearly,
the effect of ETS is a factor that may be considered by a court
in its custody determination as it affects the safety and health
of the children." In Lizzio v. Lizzio, another 1994
custody battle, a Fulton County, New York, Family Court judge
went so far as to opine, "we are at a point in time when,
in the opinion of this judge, a parent or guardian could be prosecuted
successfully for neglecting his or her child as a result of subjecting
the infant to an atmosphere contaminated with health-destructive
tobacco smoke."
BLOWING SMOKE
What does all this mean to community associations? Let's start
with the inescapable conclusion that ETS is a known carcinogen
that causes the deaths of tens of thousands of nonsmokers every
year. We do not yet know how minimal the exposure must be before
a person suffers deleterious effects from ETS, so we must assume
that any exposure is too much, especially to those who may be
particularly sensitive, such as children. Although arguments
certainly can be made to the contrary, I suggest that most courts
would have no problem finding that the presence of ETS constitutes
a nuisance to nonsmokers. The implications of this line of reasoning
have particular relevance for high-rise condominiums and other
high-density communities, where residents live in close quarters
with one another.
Homes. Because most governing documents have a provision
prohibiting noxious or offensive conduct, or conduct that constitutes
a nuisance, boards of directors cannot afford to treat complaints
about ETS lightly. My article in Common Ground five years
ago discussed the possibility that such nuisance provisions could be used to prevent residents from smoking in their own homes
if the smoke traveled into another home. It concluded: "The
Constitution does not guarantee Americans the right to smoke
in their homes. No such statutory right exists, either. The right
of individuals to engage in activities that risk their health
does not include the right to jeopardize the health of their
neighbors."
The legislation, lawsuits, and research that have occurred
in the intervening five years strongly suggest that residents
will use nuisance provisions to force their associations
to provide a smoke-free living environment. Even child-custody
cases may become a means to force associations to act; woe to
the board that refuses to act and "causes" a parent
to lose custody of his or her child.
Common areas. Still, while the issue of smoking in
individual homes remains unclear, smoking in or on common areas
does not. You should use the very same nuisance provisions to
prohibit the use of tobacco in your interior and exterior common
areas. The number of bans on smoking in public places, the body
of knowledge concerning the perils of ETS, and the high degree
of anti-smoking sentiment virtually guarantee that a well-written
rule or document provision banning smoking because it constitutes
a "nuisance" or "annoyance," or is "noxious
or offensive" to others, would be upheld if challenged.
Although most "public place" legislative bans either
exclude or fail to include association common areas, it's best
for your board to be proactive and prohibit smoking in all indoor
common areas, especially meeting rooms, party rooms, lobbies,
hallways, elevators-and even outdoor playgrounds. Because a no-smoking
policy for outdoor areas such as parking lots, sidewalks, and
grassy areas may be difficult to enforce-and you should never
pass a rule you cannot or will not enforce-it might be better
to ban smoking at all community events, which could include picnics
as well as meetings and socials.
The growing number of lawsuits relating to smoking in the
workplace, smoking in restaurants and other public places, and
even smoking in one's own home sends a solemn and stark message
to community leaders around the country: Nonsmokers are the majority,
and they are becoming very determined not to let the smoking
minority affect their health. An old adage says, "Your right
to swing your fist ends at my nose." The "right"
to smoke, if there is one, ends at the same place-the nose of
the nearest nonsmoker. Community associations that wish to protect
themselves from lawsuits and other complaints about smoking-and
from the effects of ETS on nonsmokers-must evaluate the needs
of their residents and take prudent action.
P. Michael Nagle is a partner in the law firm of Nagle &
Zaller, PC, in Columbia, Maryland.
BREATHING EASY
When a resident complains about cigarette smoke drifting
in from a neighbor's home, lawsuits and flat-out bans aren't
your only options.
ALLOW smoking only in certain rooms within a unit,
with the window open or closed, depending on the ventilation
system.
ALLOW smoking only during certain hours.
ADD or modify fresh-air intake into the ventilation
system.
REGULARLY change and clean air filters, or install
filters designed to alleviate smoke.
ROUTE the air exhausted from the smoker's unit directly
outdoors through the ventilation system.
ENCOURAGE residents who smoke to purchase smokeless
ashtrays or air-smoke digesters.
RESET molding and caulking and seal all holes and cracks
that may allow tobacco smoke to enter a neighbor's home.
INSTALL door sweeps and weather stripping.
Reprinted from Common Ground, March/April
1997
This article originally appeared in the November/December
2002 issue of Common Ground magazine, published by the
Community Associations Institute. Reprinted with permission.
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