Wasn’t it just the other day that New York City proposed to ban smoking outdoors in parks? Why, yes, it was. The city’s health commissioner said kids shouldn’t “have to be breathing in smoke from the person next to them” or “have to be watching someone smoke.”
Don’t smoke in your office, at a bar, or on public property. And while you’re at it, don’t smoke in your apartment.
What’s that, you say? You have a right to smoke in your apartment?
Think again. Two years ago, Belmont, Calif., outlawed smoking in apartments and condos with shared floors or ceilings. Then last year, two New York condo owners sued their neighbor for lighting up in her apartment and “causing smoke to enter into the common hallway.” Now comes another court fight: According to the Dallas Morning News, a local woman is suing her ex-neighbor and her ex-landlord “for damage she says was caused by cigarette smoke wafting through adjoining walls of her high-end townhome.”
No smoking if you share a floor. No smoking if you share a ceiling. No smoking if you share a wall. That pretty much covers it.
I don’t know all the legal details of the Dallas case, so I’ll leave it to the litigants and the court to work out. But look how it’s pushing the envelope of indoor smoking restrictions.
Start with the plaintiff’s grounds. In Belmont and New York, the complaints were largely about nonsmokers’ health. That’s an issue in Dallas, too, but with a twist. According to the Morning News, the plaintiff has
filed a complaint under the Texas Fair Housing Act, alleging that her sensitivity to cigarette smoke qualifies her for protection set aside for people with disabilities. … Dr. Barbara Stark Baxter, a clinical associate professor at UT Southwestern Medical Center, wrote that [the plaintiff] “qualifies as disabled under the Texas Fair Housing Act and the Americans with Disabilities Act.” … To qualify for protection, the cigarette smoke would have to impair a major life function—such as breathing.
If this claim succeeds, the ADA may become a weapon in future indoor smoking suits. Then there’s the lease. “This lease says I have a right to a habitable place, this lease says I have a right to quiet enjoyment, this lease says I have a right to safe living,” says the plaintiff. So even if health effects can’t be proved, lease clauses implying peace or habitability can be invoked.
Meanwhile, totally apart from her health, the plaintiff is asserting property damage. She claims her “furniture will need to be reupholstered, artwork restored and closets full of clothing dry cleaned.”
The next question is what measures smokers or building managers are obliged to take to prevent smoke seepage. In the New York case, the smoker had bought two air purifiers, opened her windows, and used rolled-up rugs to seal the space under her doors. In the Dallas case, the Morning News reports,
There is a solid, two-hour fire wall from the foundation to the roof between each of the homes. … Managers replaced air filters repeatedly, installed sealant-type electrical plates and—at the [plaintiff’s] request—used an industrial-grade roofing sealant to caulk pipes under their kitchen cabinet. When that didn’t work, managers tried to negotiate a move for both tenants within the community.
That’s pretty elaborate. Maybe the managers should have pushed the move option sooner. Landlords, take note.
And while we’re at it, what measures are nonsmokers obliged to take? In the New York case, the smoker lived in the building for 10 years before the nonsmokers moved in next door. If they knew about her smoking, they should have factored it in. If they didn’t know, the building management should have told them.
In the Dallas case, the nonsmoker seems to have moved in before the smoker. A lawyer for the property managers says the nonsmoker renewed her lease after she reported the problem next door. Maybe that fact will get the lawsuit thrown out. But it shouldn’t absolve property managers of the responsibility to take precautions earlier. Find out whether your incoming tenants or condo buyers smoke, and check with the neighbors who await them. If you don’t, you may end up with a mess on your hands.
If landlords, property managers, smokers, and nonsmokers don’t take such precautions, some courts and legislators are clearly willing to step in. In the Dallas case, the Morning News reports that “a judge issued a temporary restraining order forbidding [the smoker] from lighting up in her home.” That’s right: a court order not to smoke in your bathroom. Pretty outrageous, I’d say. But so is having your bathroom invaded by smoke from next door. If you don’t want the government bringing its long arms and clumsy feet into such disputes, work them out beforehand.