|
Information Page #3
What Laws Might be Applicable to Drifting
Secondhand Smoke in Multi-Unit Residential Buildings?
California's Smokefree Workplace
law (Section 6404.5 of the California State Labor Code) applies
to multi-unit housing which employs workers whether they are
regular employees or contractors such as painters or plumbers.
The law requires that all enclosed common areas including lobbies,
halls, laundry rooms, stairs, elevators, and recreation rooms
be smokefree.
In an opinion published September 23, 1999, the office of the
California Legislative Counsel affirmed: " The common areas
of an apartment or condominium building or complex, such as hallways
and stairwells are subject to the workplace smoking prohibitions
contained in Labor Code 6404.5 if those areas are enclosed and
are places of employment."
How Does the Federal Housing Act of 1988
Apply to Secondhand Smoke?
Under both state and federal law,
individuals with disabilities are entitled to reasonable accommodations
and/or modifications of policies, practices and procedures by
their housing providers to ensure equal access to, and enjoyment
of their housing. (See, Fair Housing Amendments Act of 1988,
U.S.C. Section 3601 et seq,; and the California Fair Employment
and Housing Act, Government Code Section 12900 et seq.)
If a tenant is disabled, and exposure to secondhand smoke is
preventing the tenant from using and enjoying the building, the
law requires a reasonable accommodation. For example, the landlord
may be required to allow the tenant to relocate to a different
unit, away from drifting smoke. Or, the tenant may be able to
break his/her lease without penalty. (Public Health Institute,
Technical Assistance Legal Center, Oakland, CA.)
Do Apartment Owners Have a Responsibility
to Protect Their Tenants from Drifting Secondhand Smoke?
California landlords owe a variety
of duties to their tenants including the implied warranty of
habitability. It is possible that, under certain circumstances,
a court might decide that a tenant's exposure to secondhand smoke
violates the warranty of habitability.
Can Drifting Secondhand Smoke be Considered
a Nuisance?
A nuisance is "That which
annoys and disturbs one in possession of his property, rendering
its ordinary use or occupation physically uncomfortable to him;
e.g. smoke, odors, noise, or vibration... includes everything
that endangers life or health, gives offense to senses... or
obstructs reasonable and comfortable use of property... An offensive,
annoying, unpleasant, or obnoxious thing or practice; a cause
or source of annoyance, especially a continuing or repeated invasion
or disturbance of another's right, or anything that works a hurt,
inconvenience or damage." (Black's Law Dictionary, sixth
edition.)
We have been informed by several attorneys that apartment owners
have evicted tenants because their secondhand smoke was considered
a nuisance.
In addition, tenants have sued on the basis of nuisance, breach
of the common law covenant of quiet enjoyment, breach of statutory
duty to keep the premises habitable, negligence, harassment,
battery, and intentional infliction of emotional distress.
In one of the first cases in 1991, a Massachusetts woman sued
her landlord because she was constantly exposed to the secondhand
smoke of another tenant. She suffered asthma attacks, prolonged
coughing, clogged sinuses, and frequent vomiting. That case was
settled for an undisclosed amount of money in 1992. (Donath v.
Dadah)
In 1992, a landlord in Oregon was sued by a tenant who was affected
by cigarette smoke from another tenant who lived directly below.
A six-person jury unanimously found a breach of habitability,
reduced the tenant's rent by 50%, and awarded her payment to
cover her doctor's bills. (Fox Point Apts. v. Kippes)
More recently, in 1998, a couple in Boston moved into an apartment
over a bar and then discovered that smoke from the bar was seeping
into their apartment. According to an Associated Press article
which reported their problem, Kristy Haile said that as a result
of the smoke, she was diagnosed with smoke-induced asthma.
The Hailes withheld three months of their rent, and the landlord
then began an eviction process. However, the eviction procedure
was halted when Boston Housing Court Judge F. George Daher ruled
that secondhand smoke was a health threat that interfered with
Kristy and Reece Haile's right to "quiet enjoyment"
of their apartment.
In 1996, in the City of Long Beach, California, Richard Layon,
a condo owner, was granted a three-year restraining order against
his neighbor, Dennis Jolley. Jolley's garage was under Layon's
condo, and the smoke drifting from the garage into the condo
was causing Layon and his wife to become ill. The restraining
order prohibited Jolley from smoking in his garage.
In 1998, Park Towers Apartments in Loves Park, Illinois became
a smokefree building as a result of a conciliation agreement.
Nancy V. Kirk filed two complaints under Section 504 of the Rehabilitation
Act of 1973 and the Fair Housing Act of 1968 as amended against
Guilford Management Corporation and Park Tower Apartments because
her respiratory condition was being aggravated by the secondhand
smoke drifting into her apartment from a neighbor's unit. A survey
of the tenants indicated that a majority preferred a smokefree
building. Smokers residing in the building can continue to smoke,
but new tenants are informed that smoking in violation of the
new policy will result in eviction.
|
The Smokefree Apartment House
Registry is administered by S.A.F.E. (Smokefree Air For Everyone)
and Community Partners, Los Angeles. The Registry is made possible
by funds through the Proposition 99 Tax Initiative. |
|
Page 1 |
What is the Smokefree Apartment
House Registry? |
|
|
Page 2 |
Why Are Smokefree Apartment
Buildings Needed? |
|
|
Page 3 |
What Laws Might be Applicable? |
|
|
Page 4 |
Suggestions for Transitioning
to and Managing Smokefree Apartment Buildings |
Comments? Questions? EMail Smokefree
Apartment House Registry
Created 06.19.02 - Updated 08.04.2004
- Built by Nightwatch
|
|
