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Here is a long read BUT it is worth it if you want to see where you stand. If you want to keep on insisting that you are right, that is not my problem. It is yours. You may not agree with the law, but you cannot fight it. You can only work to change it. Of course, you have to know what the law is and that is your problem.

Clearing the Air

by 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.