Secondhand Smoke and Its Potential Effect on Apartment Community Policies.

MELISSA MANGUM

In 1993, the U.S. Environmental Protection Agency (EPA) labeled secondhand tobacco smoke a Class A carcinogen, giving it a dangerous status, comparable to that of radon. There are those who agree with this classification and others who feel that the EPA may have had a political agenda that influenced its decision. The anti-smoking movement has snowballed in the past few years, resulting in a dramatic increase in smoking restrictions in the workplace and in public places. The tobacco industry is currently under fire, facing lawsuits from every imaginable source in addition to pending federal legislation.

Secondhand smoke in particular has been the topic of numerous civil lawsuits across the nation encompassing not only the major tobacco companies, but several property owners as well. Experts claim that secondhand smoke can travel from its point of generation in a building to all other areas of that building. It has allegedly been shown to have the ability to move through light fixtures, electrical outlets, ceiling crawl spaces, into and out of doorways, and between floor panels under carpeting.(1) This alleged mobility has led to complications in relationships between apartment residents who smoke, their nonsmoking neighbors, and property owners and managers. Apartment residents who are upset about secondhand smoke are not confronting large tobacco companies with extensive legal representation; they are suing their neighbors or in some cases, the owner or manager of the apartment community.

RECENT LAWSUITS

In 1991, a Massachusetts man sued his neighbor claiming that the neighbor's smoking habit made the plaintiff's apartment feel 'like living in a barroom.(2) 'The plaintiff lost the case, but his argument has since made some headway in the judicial system. In 1992, a non-smoking Oregon resident won a civil suit alleging that a neighbor's smoking bothered her. The owner of the property was ordered by the judge to reduce the plaintiff's rent. In an equally alarming scenario, an Ohio appellate court ruled in 1994 that secondhand smoke could be considered a breach of a lease's implied right to 'quiet enjoyment' of a property.(3)

In 1995, a $6,100 settlement was awarded to a couple living in an apartment who sued the community's management company, the local residents' association, and the neighbors residing directly below their unit. The plaintiffs claimed that secondhand smoke fumes from the apartment below caused the couple to suffer from several respiratory ailments. In addition to the monetary settlement, the owner was required to install a top-of-the-line air filter as part of the settlement. Prior to the ruling, the plaintiffs had petitioned the court to restrain the neighbors from creating the secondhand smoke that was allegedly making its way into the plaintiffs' apartment. The judge denied their request and ordered the residents' association to provide a forum in which to mediate the residents' concerns.(4)

In June of this year, a Boston Housing Court judge officially extended a resident's right to quiet enjoyment of a property to include living free of secondhand smoke.(5) The case involved an apartment that was located above a local pub. The fumes apparently entered the unit through the fireplace and electrical outlets. The couple withheld their rental payments for three months in protest, and the 24-year-old wife was later diagnosed with smoke-induced asthma.

This pattern of rulings is certainly unpleasant news for property owners and could potentially open a floodgate for residents who have been complaining about their smoking neighbors to either sue or withhold their rental payments in protest. A precedent has been set that increases their chances of winning should they file suit against the owner or a neighbor.

MORE AND MORE REGULATION

More and more locations have become off-limits for smoking. Some state legislatures appear to be experimenting with the regulation of smoking inside private residences. The Utah state legislature defeated a bill in March 1997 that would have classified secondhand smoke as a nuisance. The bill would have allowed owners to begin eviction proceedings against residents whose secondhand smoke found its way into a neighbor's apartment 'more than once in each of two or more consecutive seven-day periods' if the neighbor found it offensive.(6) The Utah legislature did succeed, however, in creating a specific civil action against a smoker whose secondhand smoke drifts into a neighboring apartment or condominium. 'Apartment and condominium owners can [now] more easily define their buildings as smoke free zones.(7)'

Even public housing facilities have begun to regulate smoking. There is a bill currently in the Massachusetts state legislature that would require that 75 percent of all units of the state's public housing be reserved for nonsmokers.(8) The public housing authority in Fort Pierce, Florida, banned smoking altogether in private apartments located within St. Lucie County.(9) A resident's right to quiet enjoyment of the property can conceivably be interpreted to include that residents right to smoke in his or her own home regardless of ownership. On the other hand, people who become seriously ill from exposure to secondhand tobacco smoke are also entitled to breathe freely in their own homes. What is a housing provider to do when one resident's rights infringe upon another's?

LACK OF GUIDELINES

While there have been a few state court decisions, there are currently no federal guidelines regarding secondhand smoke. The Fair Housing Amendments Act and the concept of reasonable accommodation can only apply in a situation where either the non-smoker or the smoker can prove that he or she is disabled. In order to be considered disabled under fair housing law, the person must have such an adverse reaction to secondhand smoke that he or she cannot engage in a major life activity. On the other side of the coin, alcoholics and recovering drug addicts are considered disabled.(10) Is it possible that people who are addicted to cigarettes could be categorized in the same manner?

To date, neither smokers nor nonsmokers are considered a protected class. The only way to prevent smokers from smoking in their own apartments is to have them agree in their lease to a nonsmoking policy. Current residents who are smokers will be notably reluctant to sign the new policy. A property owner may also want to consider allowing residents to transfer to other units if they choose to do so voluntarily in order to avoid the fumes from a nearby heavy smoker. Many apartment communities are establishing smoke-free buildings. Smoke-free buildings could plausibly make for an extremely effective marketing strategy geared to both the young and health-conscious as well as those suffering from conditions such as asthma and heart disease.(11)

It has been estimated that including children, the nonsmoking public is now 90 percent of the population.(12) Property owners and managers would be wise not to ignore this overwhelmingly large segment of the population and the problems that can arise when smokers and nonsmokers live in such close proximity to one another. Taking a proactive approach to appease both smoking and non-smoking residents may be the answer. It might be best to address the issue before the judicial system creates your apartment community's smoking policy for you. U

NOTES

1. 'Smoke Free Apartment Buildings? ... Is there a market?' Rockford Apartment Association Newsletter. Jan 1998. p. 10.

2. White, Erin. 'Today, Where There's Smoke, There's a Neighbor's Lawsuit.' The Wall Street Journal. 13 Jul 1998, B1.

3. Ibid.

4. Ragonese, Lawrence. 'Apartment Neighbors Settle Smoke Lawsuit.' The Star-Ledger Newark, NJ. 3 Mar 1995.

5. Gainsborough v. Haile, Summary Process No. 98-0/2/2/7/9, Housing Ct., City of Boston (June 8, 1998).

6. Carter, Mike, 'House Kills Secondhand Smoke Bill.' The Associated Press Political Service. 5 Mar 1997.

7. Bernick, Bob. 'Remember the Legislature? 252 Laws That Take Effect Monday.' Deserei News. 4 May 1997. A20.

8. Barton, Gina. 'Secondhand Smoke Seeping Into Issues.' South Bend Tribune. 1 Aug 1998, C6.

9. Ibid.

10. Darling, William J. 'Second-Hand Smoke Issues.' El Paso Newsletter. El Paso Apartment Association. p. 24.

11. 'Smoke Free Apartment Buildings ... Is There a Market?' p. 11.

12. Ibid.

Mangum is the policy analyst with NAA's State and Local Policy department.