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Thank you to the
Smokefree Apartment House Registry of Los Angeles, CA
and the Technical Assistance Legal Center
for the much of the following information:

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.)

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.)

Is it discrimination to tell someone they cannot smoke?

No. Please click on the following link for more information.
Analysis of the authority of Housing Authorities and Section 8 multiunit housing owners to adopt smoke-free policies in their residential units

Furthermore, no federal or state court has ruled that smoking is a “disability” within the
meaning of the ADA. In Brashear v. Simms, 138 F. Supp. 2d 693, (D. Md. 2001), a
federal court dismissed as “frivolous” a state prisoner’s claim that a smoking ban in
Maryland’s prisons violated his rights as a smoker under the ADA. The court stated that
“common sense compels the conclusion that smoking… is not a disability under the ADA… Congress could not possibly have intended the absurd result of including smoking
within the definition of disability, which would render somewhere between 25% and 30% of the American public disabled under federal law because they smoke.”

Do Apartment Owners Have a Responsibility to Protect Their Tenants from Drifting Secondhand Smoke?

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.

Please go to the following Web site for more detailed legal research:  

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.

Belmont, California is discussing a ban on smoking in all apartments and condominiums. Read the Update April 12, 2007.

Additional educational information:

Legalities of Smoke-Free Air (Case law - 12th Century to now)

Smoke-Free Housing Consultants, Jacque Petterson
12274 Bandera Rd., Ste. 210, Helotes, Texas 78023-4385
(210)  383-3244
(9AM to 8PM Monday - Saturday Central Time Zone)
Fax: (210) 267-1227





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