THERE IS NO CONSTITUTIONAL RIGHT TO SMOKE ! SMOKE FREE HOUSING SEMINAR July 16, 2012. Fair Housing Project Legal Aid Society of Palm Beach County, Inc. Presented by: Jean Marie Middleton, Esquire WITH ASSISTANCE FROM Nazli Sonmez Matt .
THERE IS NO CONSTITUTIONAL RIGHT TO SMOKE!SMOKE FREE HOUSING SEMINARJuly 16, 2012
Fair Housing Project
Legal Aid Society of Palm Beach County, Inc.
Presented by: Jean Marie Middleton, Esquire
WITH ASSISTANCE FROM Nazli Sonmez Matt
Title VIII, Fair Housing Act (FHA)
One week after the assassination of Martin Luther King, Jr.
Main purposes of the Act to protect tenant/buyer of a dwelling from being discriminated by seller/landlord by making it unlawful for a person or entity to:
protected classes include:
FLORIDA CLEAN INDOOR AIR ACT Prohibition.—A person may not smoke in an enclosed indoor workplace, except as otherwise provided in s. 386.2045.
Current AG- Pam Bondi opines that the St. Johns River Water Management District CANNOT adopt a policy to prohibit smoking at outdoor locations by all persons.
HOWEVER, they could regulate outdoor smoking by their employees as a personnel matter.
The State Clean Indoor Air Act preempts municipal or local policies
FEDERAL POLICIES ARE NOT SUBJECT TO STATE LIMITATIONS
FEDERAL AGENCIES LIKE HUD have authority over public housing
Public Housing Authorities and recipients of HUD funds for housing
BECAUSE Florida Indoor Clean Air Act does not cover private residences HUD policies can.
Q. is there a right to smoke?
A. no legally protected right to smoke so housing providers can legally create smoke free policies in:common areas, units; any other part of the property that they own or control.
There is a fundamental right of privacy; BUTThe right to privacy does NOT include smoking
Q. Are smoke free laws discriminatory against people who smoke?
A. No. smokers are not a protected class and smoking is not a protected activity
1. Tenants w/ disabilities may have special
2. If their disability is worse by
secondhand smoke, they can request a reasonable accommodation
3. Subjects housing providers to future
[CA Civil Code Section 1947.5(b)]
In Re: HUD and Kirk & Guilford Management Corp. and Park Towers Apts. – (IL) conciliation agreement requiring no-smoking policy; violator could be evicted
Gainsborough St. Realty Trust v. Haile-(Mass.)-Landlord suing for non-payment of rent lost. Held: amount of smoke from bar below Haile’s apartment deemed “unfit for smokers & nonsmokers alike”.
McCormick v. Moran-(NY) Held: excessive smoking...caused tobacco smoke residue…creating offensive odor and a potential health risk that may arise to others who may use the premises.”
Heck v. Whitehurst Co.- (Ohio) landlord failed to make repairs to keep apartment in a “fair and habitable condition”. Ordered to make repairs w/n 21 days; abate rent by 50% & pay tenant $639.
Zangrando v. Kuder-(Ohio) Plaintiff asked defendant to move 30 feet away to smoke. Defendant refused and condo association would not
get involved. After defendant moved away, plaintiff filed suit and lost.
Harwood Capital Corp. v. Carey (Mass.)- “jury finds heavy smoking to be gounds for eviction.” Landlord breached lease prohibiting tenants from creating a nuisance or engaging in activity that substantially interfered in the rights of other building occupants.
Poyck v. Bryant, et al (NY) Held: “secondhand smoke is just as insidious and invasive as …noxious odors, smoke odors, chemical fumes, excessive noise and water leaks and extreme dust penetration.”