Q: I’ve had a tough time finding a rental because I smoke. I found a great place but was told it was a “smoke-free” building, inside and out. Don’t I have a right to smoke wherever I want?
A: The right to smoke depends on when and where you want to light up. Smoking has become a huge source of conflict, especially in light of health concerns regarding secondhand smoke. Fanning the flames are smokers who maintain that smoking is their right and should not be compromised.
The conflict has given rise to several laws and definitions regarding smokers’ rights, usually outlined by local law. In some localities, both residential and commercial buildings have been deemed “nonsmoking” in areas ranging from the common areas to the units themselves and everywhere in between. The only exception to the “no-smoking-allowed” rule being enforced may be when a pre-existing lease is silent on the subject, leaving the lessee undisturbed until the lease period has run out.
Since those who smoke are not considered a protected class, discrimination laws do not apply. As a result, disallowing smoking has been more and more commonplace. Besides rental properties and other private spaces, smoking being banned in public and private places is becoming more commonplace.
According to the American Nonsmokers’ Rights Foundation (ANRF) an advocacy group that tracks local ordinances, “as of Jan. 2, 2008, a total of 2,671 municipalities in the United States have local laws in effect that restrict where smoking is allowed.” Restrictions include 524 municipalities that enforce a 100 percent smoke-free workplace and 488 with a local law in effect that require 100 percent smoke-free restaurants. California, Delaware, New York, Connecticut, Maine, Massachusetts, New Jersey (casinos exempted), Rhode Island, Vermont and Washington now disallow smoking in restaurants and bars.
Indoor-smoking bans are now expanding to the outdoors, including more than 45 beaches and more than 220 parks around the nation. “What we’re seeing is the trend is going from the inside out,” says Cynthia Hallett, ANRF’s executive director.
Where did the no-smoking trend begin? In 1998, California became the first U.S. state to introduce a complete smoking ban inside public buildings. Several states have since followed suit, and cities have tightened definitions and applications, too. In Washington state, smoking is also not allowed within 25 feet of doorways, windows and air intakes of any protected space as defined in its restrictive law.
In December 2007, Seattle’s King County Housing Authority voted for a pilot program that bans smoking entirely in three apartment buildings, 222 units in all. Smoking already is banned in common areas in its county housing projects; the authority owns and manages some 2,700 units of public housing.
What about smoking in or near rental units? In California, the city of Calabasas enacted the Second-Hand Smoke Ordinance in March 2006, which in addition to restricting smoking in public places included places of employment and apartment building common areas.
In December 2007, the Calabasas City Council introduced an ordinance requiring at least 80 percent of apartment buildings to be permanently designated as nonsmoking units by Jan. 1, 2012. Leases for nonsmoking units will require a clause stating “smoking is prohibited in the unit and that it is a material breach of the lease to violate the terms of the ordinance.”
Similar to enforcement of noise laws, if a tenant violates the lease by smoking in or near his or her own unit, he or she is subject to being bounced when the current lease expires or if a violation is clear. If a landlord receives two written complaints from different individuals about a tenant smoking, the tenant “may be subject to eviction at the discretion of the landlord,” the site explains. Want to ignore the warnings? In Calabasas, violations can be pursued as a misdemeanor offense.
How does that affect you as a smoker? Be warned: Whatever the outcome of pending law and case law, leases across the country may come to include smoking as cause of eviction.
Q: A neighbor has just moved in below me and smokes constantly. I’ve complained to the management, but they claim there is nothing they can do. Do you have any suggestions?
A: Unless there’s a prevailing law in your area, common sense will have to prevail. Has management asked the smoking tenant to close windows whenever possible or consider an air purifier?
Is management receptive to the idea of prohibiting smoking in common areas? If so, a smoking ban in all public or common areas, such as elevators, hallways and laundry rooms, is a good place to start and can usually be done without the grace of local law. Meanwhile, the existing smoker probably has the right to enjoy the inside of the unit as far as the lease allows.
Think you have legal rights? Don’t hold your breath. Lawsuits have been filed on secondhand-smoke issues but are not complete on this evolving legal question. For details, consult a legal professional.
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