Waiting to Exhale?
The Future of Tobacco Litigation
Columbus, Ohio October 27, 2006
A Word from Our Sponsors…
Smoke-Free Environments Law Project
Jim Bergman, J.D., Director,
Ann Arbor, Michigan
Tobacco Control Legal Consortium
Doug Blanke, Executive Director
William Mitchell College of Law
St. Paul, Minnesota
Secondhand smoke seepage
complaints increase
SFELP now receives more complaints
from individuals about secondhand
smoke seepage in apartments and
condominiums than any other, including
workplaces complaints
Why All The Fuss?
Why is there such concern about
secondhand smoke in apartments,
condominiums and other multi-unit
residences?
Secondhand Smoke is Deadly
“Breathing Even a Little
Secondhand Smoke Can Be
Deadly”
U.S.Department of Heralth and Human Services, the Health
Consequences of Involuntary Exposure to Tobacco Smoke:
A Report of the Surgeon General (2006)
Tobacco Smoke Travels
“Tobacco smoke travels from its point of
generation in a building to all other areas of the
building. It has been shown to move through
light fixtures, through ceiling crawl spaces,
and into and out of doorways. Building
occupants are at risk for irritant, allergic, acute
and chronic cardiopulmonary and carcinogenic
adverse health effects.”
John Howard, M.D., Chief of the CA Division of OSHA
Smoke Busters
Air Cleaners and Smoke Eaters
ARE NOT protection against the
health hazards of secondhand
smoke.
ASHRAE Health Warning
“At present, the only means of
effectively eliminating health risk
associated with indoor exposure is to
ban smoking activity.”
American Society of Heating, Refrigerating & Air Conditioning
Engineers (ASHRAE), June 2005
Structural Remedies
Nov. 2004 study
Center for Energy and Environment, MPLS
• Airflow in six multi-unit buildings reduced by an
average of 41%
• More than half of buildings had a reduction of
greater than 50%
• One third of units had no reduction
mncee.org/ceedocs/mpaat/summary.pdf
Structural Remedies
Sealing Treatments provide
only marginal benefit
if sole method of treatment
What Can Landlords and
A
Condo Boards Legally Do
Apartment and Condominium owners
and Condominium Boards are
permitted by federal and state law to
adopt total smoke-free policies.
Prohibiting Smoking in MultiUnit Housing is Legal
• Michigan Attorney General Opinion of
1992 states that neither federal nor
Michigan law prohibits a landlord
from making his/her apartment
building totally smoke-free.
• May want to see if there is an OH
Attorney General Opinion on this.
Common Law Permits Smokefree Policies
Under Common Law, a landlord can
restrict tenant activities as long as no
constitutional right is violated.
There is no constitutional right to smoke.
There is No Right to Smoke
HUD Legal Counsel: “The right to
smoke or not to smoke is not a right
that is protected under the Civil
Rights Act of 1964 because smokers
are not a protected class under federal
law.”
HUD Legal Counsel Letter, July, 2003
Prohibiting Smoking in HUD
Housing is Legal
• HUD Legal Counsel letter of July, 2003 states
that apartment owners are free under federal
law to make their buildings totally smokefree, so long as they “grandfather” current
residents who are smokers.
• “Grandfathering” means for a reasonable
period, such as until lease renewal
Adopting a Smoke-Free Policy
To implement a smoke-free policy in a
multiunit dwelling add smokefree
provisions:
• to the lease for apartment complexes
• to the “house rules” in public Housing
Authority buildings
• to the condominium rules or to condo
covenants (CC&Rs) for condominiums.
Remedies for Second-hand Smoke Infiltration
Tenants negatively impacted by
secondhand smoke actually have the
right to seek legal action against
landlords who do not adequately protect
them from second hand smoke.
Condominium Owners may take action
against the offending owner and the
condominium board.
Preliminary Steps
Aggrieved Non-Smoker should first:
. Get a Letter from their treating physician
. Measure Exposure to SHS
. Check for a Nuisance Clause that
prohibits activities that “unreasonably
interfere” with enjoyment of the unit
. Check for laws or policies prohibiting
smoking in any part of the complex.
Laws Requiring Smoke-Free
Common Areas
Local laws requiring smoke-free common areas in
multi-unit residential buildings are fairly common.
Areas covered include: hallways, entryways, laundry
rooms, common or recreation areas.
Fair Housing Act
FHA prohibits discrimination in
housing against persons with
disabilities including:
Renters (except single-family homes rented
without the use of a broker)
Condo Owners (except condo complexes of
less than four units).
.
FHA Hurdles
•
Non-smokers must demonstrate
severe and long-term hypersensitivity to
smoke that substantially limits life
activities.
•
Non-smoker who has itchy eyes or a
sore throat or otherwise finds
secondhand smoke irritating probably
could not qualify for protection.
FHA Hurdles Con’t…
If non-smoker successfully shows a
second-hand smoke disability, the
opposing party (landlord, condominium
board, or smoking condo owner) can
prevail if there is a “reasonable
accommodation” of the non-smoker’s
need for protection from SHS.
What is Reasonable
Accommodation?
HUD Housing: an agreement to make an existing
building smoke free for future tenants was
considered a “reasonable accommodation” U.S.
Department of Housing and Urban Developmentand Kirk and
Guilford Management Corp. and Park Towers Apartments
Renters of Private Housing and Condominium
Owners: may want to try seeking a similar remedy
without grandfathering current tenants.
Condos and Complaints
• Condominium Owners can file a
complaint against the condo ass’n, the
offending smoker, or both
(recommended).
• Condominium Owners who qualify as
“disabled” under the FHA are entitled
under the ADA to “reasonable
accommodation” in the public areas of
the condominium.
ADA Complaint
• File with the Department of
Justice.
• Complaint may be referred to a
DOJ mediation program.
State Housing Discrimination Laws
• In addition to federal law, states have
their own anti-discrimination laws.
• These laws have paralleled federal law
in requiring more severe symptoms
than personal discomfort.
State Disability Case
Massachusetts court ruled that a
residential tenant who
experienced itchy eyes and
tiredness from exposure to
secondhand smoke did not qualify
as disabled. (Donnelley v. Cohasset
Housing Authority, 16 Mass. L. Rep. 318
(Mass. Super. Ct. 2003).
Alternative Dispute Resolution
Consider arbitration or mediation as an
alternative to filing a lawsuit.
Lawyers are expensive and the outcome of a suit
is uncertain.
Condo owners should check condominium
documents to see if alternative dispute
resolution required before filing a lawsuit.
Condo Owners:
Whom Do You Sue?
• Thus far, no condo owner has won against a
condo ass’n, although possibly some settled.
• Standard condo agreement requires the litigating
owner to pay the legal fees of the ass’n if he or
she loses.
• Condo ass’ns have acess to an attorney and
considerable financial resources.
• To hold condo ass’n liable, important to inform
management or board about the problem.
Limitless Lawsuits
Common law remedies tenants or condo
owners may use:
• Breach of warranty of habitability and/or
breach of warranty of quiet enjoyment
• Nuisance law violation
• Negligence, harassment, trespass,
constructive eviction, intentional
infliction of emotional distress, battery
Trespass
• Can argue that secondhand smoke is
“trespassing” into plaintiff’s unit.
• No consensus among courts on whether
a substance can trespass.
For example, in Alabama, dust and gas can
trespass, but not heat and noise.
Nuisance
• Utah statute defines SHS as a nuisance if it
drifts into an apartment or condo more than
once in each of two consecutive 7- day
periods (78-38-1(3)).
• In every other state, SHS is a nuisance if it
substantially interferes with the enjoyment of
life or property.
SHS: Nuisance or Not?
Smoke from three to five cigarettes a day was not
considered a nuisance to a Massachusetts court
(Lipsman v. McPherson)
Massachusetts jury found that 40 to 60 cigarettes a
day was a nuisance. (Harwood v. Carey)
Florida court found that SHS was a nuisance; but
found that it was beyond mere inconvenience to
the plaintiff (Merrill v. Bosser)
Nuisance Clause: Condos
Most Condominium Agreements have a
“Nuisance Clause.”
Located in the Condominium CC&Rs
(founding documents) and may also be in
the Condominium Rules
Warranty of Habitability
Landlords are Responsible for Ensuring
Rental Housing is Fit for Human
Occupancy.
Under current caselaw, the greater the SHS
exposure, the stronger the argument that
the exposure is a breach of the warranty of
habitability.
Covenant of Quiet Enjoyment
Protects a tenant from serious intrusions that
impair the character of value of the premises.
Condominium owners typically sign an
agreement that includes the covenant of quiet
enjoyment.
Successful Condo Cases
against Smokers
• Harwood v. Carey (Boston Housing Court, 2005):
jury held that tenants of a condo unit who together
smoked 40-60 cigarettes a day had committed a nuisance
and could be evicted by the owner of the condo unit.
• Merrill v. Bosser (County court, Broward county, FLA,
2005): judge awarded $1,000 in damages to a condo
owner who had been exposed to SHS from a tenant of a
neighboring condo unit. The tenant had smoked so
heavily that it set off the plaintiff’s smoke detector in
one instance.
What do these cases have in
common?
Excessive Smoke Involved
Successful Condo Cases Con’t
Layon v. Jolley (L.A. Superior Court, 1996)
Condo owner successfully enjoined a
fellow owner from smoking in a
shared garage under the owner’s
condo. The judge determined the
smoker was harassing the plaintiff,
who lived directly above the garage.
Successful Suits Against Landlords
Fox Point Apt. v. Kipples: (Ore. Dis. Ct. 1992)
a jury found that a landlord breached
the warranty of habitability when he
allowed a smoker to move below a
tenant who suffered respiratory
problems as a result of the SHS.
Successful Suits Against Landlords
50-58 Gainsborough St. Realty Trust v. Haile
(Boston Housing Court 1998)
Court held that a landlord breached
the covenants of habitability and
quiet enjoyment to a renter whose
apartment was located over a bar.
Hope for Future Lawsuits
“The dangers of secondhand smoke are not
imaginary, and the risks to health of
excessive exposure are being increasingly
recognized in court… The inherent capacity
of the common law for growth and change is
its most significant feature. It is constantly
expanding in keeping with progress of
society”
(Cited in a 2004 case in CA allowing a condo owner to
proceed with a claim against a neighboring smoker)
Key Resources Online
MISmokeFreeApartment web site:
www.mismokefreeapartment.org
SFELP Apartments site:
www.tcsg.org/sfelp/apartment.htm
SFELP Condominiums site:
www.tcsg.org/sfelp/condos.htm
Tobacco Free Utah apartment/condo site
www.tobaccofreeutah.org/aptcondoguide.html#smoke