Smoke-Free Condominiums: Legal Issues and Implications

1. Smoke-Free Condominiums:Legal Issues and Implications

2. Why Adopt a Smoke-Free Policy? • Health Impact • “There is no safe level of exposure to tobacco smoke” – Report of the Surgeon General (2010) • Secondhand smoke can have 80-90% of the health impact of chronic smoking (J. Barnoya, MD, MPH (2005)) • Economic Impact • Reduce maintenance and turnover costs • Reduce health costs • Reduce insurance premiums • Limit liability for residents and condo association • Safety Impact • Reduce risk of residential fire

3. Benefits of Going Smoke-Free Protection From Secondhand Smoke • Up to 65 percent of air can be exchanged between units and that smoke travels through tiny cracks, crevices and chasing, involuntarily exposing individuals in adjacent units. • Secondhand smoke (SHS) contains more than 7,000 identifiable compounds released as gases or particles, including at least 70 known cancer causing compounds • 50,000 nonsmokers die each year from cancer or disease caused by SHS • Even brief exposure for children increases the risk for sudden infant death syndrome (SIDS), acute respiratory infections, ear problems, and asthma. • “At present, the only means of effectively eliminating health risks associated with indoor exposure is to ban smoking activity.”- American Society of Heating, Refrigerating & Air Conditioning Engineers (ASHRAE)

4. Benefits of Going Smoke-Free Lower Costs • HUD estimates that apartment turnover costs are 2 to 7 times greater when smoking is permitted • A survey of housing authorities and subsidized housing facilities in New England found the cost to rehabilitate a smoking unit was $1,500 to $3,000 more than a non-smoking unit • Some insurance companies offer discounts on property casualty insurance for multi-unit owners with a smoke-free policy

5. Cost of Rehabbing a Unit Source: Smoke-Free Housing New England, 2009

6. Benefits of Going Smoke-Free Reduce Risk of Fire • Smoking is among the leading causes of residential fires in multi-unit buildings and the number one cause of fire deaths in the U.S. (Source: National Fire Protection Association) • National Fire Protection Association 2011 Data: • 17,600 smoking related residential fires • 540 civilian deaths (20% of all fire deaths) • 1,640 civilian injuries • $621 million in direct property damage • #1 NFPA Recommendation to avoid residential fires: “If you smoke, smoke outside”

7. Benefits of Going Smoke-Free Soaring Demand • Only 18% of American adults smoke, and roughly half that total smoke in the home • 8 out of 10 asked in a multi-state survey indicate theywould prefer to live in a smoke-free complex • 1 out of 2 say they have moved or would move because of tobacco smoke drift

8. Is it Legal? No Constitutional Right to smoke • Proponents of smokers’ rights often argue that smoke-free laws or policies: • Violate an individual’s constitutional right to privacy; or • Discriminate against smokers in violation of the Equal Protection Clause • All courts, including the U.S. Supreme Court, considering the issue have found: • Smoking is not a protected liberty, and • Smokers are not a protected class of people • Important Note: Several state constitutions, including MD, provide broader protections than the federal constitution; however, no state court has found smoking is a constitutionally protected right.

9. Is it Legal? No smoking laws and policies do NOT violate the right to privacy • The Constitution protects the “fundamental right to privacy,” and any law encroaching upon this right must pass a heightened level of court scrutiny • The U.S. Supreme Court has repeatedly held the fundamental right to privacy only applies to marriage, intimate relationships and rearing of children • No court has extended the right to include smoking No smoking laws and policies do NOT discriminate against smokers • The Equal Protection Clause guarantees “equal protection of the laws,” meaning a law cannot treat groups of people differently without adequate justification • Laws discriminating against an inherent characteristic (i.e. gender or race) are rarely upheld, but laws discriminating against other groups need only be “rationally related to a legitimate government goal.”

10. Is it Legal? No Federal Law Prohibits Smoke-Free Laws or Policies • All 50 states (and the District of Columbia) have the authority to enact smoke-free housing laws • No federal or state law prohibits an owner, property manager or housing authority from making their apartment building smoke-free

11. Is it Legal? Family Smoking and Tobacco Control Act (2009) Sec. 916. Preservation of State and Local Authority. “Nothing…shall be construed to limit the authority of a…State or political subdivision of a State…to enact, adopt, promulgate, and enforce any law, rule, regulation or other measure with respect to tobacco products that is in addition to, or more stringent than, requirements established under this chapter, including a law, rule, regulation or other measure relating to or prohibiting the sale, distribution, possession, exposure to, access to, advertising and promotion of, or use of tobacco products by individuals of any age…”

12. Is it Legal? • Maryland Clean Indoor Air Act (2007) • Prohibits smoking in indoor areas open to the public, including indoor common areas of residential properties • Exempts private residences • “Nothing in this subtitle shall be construed to preempt a county or municipal government from enacting and enforcing more stringent measures to reduce involuntary exposure to environmental tobacco smoke” (MD. Ann. Code 24-510) – i.e. continue lack of preemption in field of smoking regulation found in Fogle v. H&G Restaurant) • The smoking law has never been interpreted to prevetn private landowners from regulating smoking on their own property.” – Maryland Office of the Attorney General

13. The Maryland Condominium Act • Condominium rules containing restrictions on use of individual units are permissible as long as the rules adopted by a board of directors are properly adopted and within the scope of the powers delegated to the Board. • Any rule, properly adopted, is binding on residents, whether the rule applies to common areas, individual units or both. • Common examples: pet or noise restrictions, solar panels, clotheslines, grills, flags, etc.

14. Potential Liability • Condominium Association • Breach of Implied Covenant of Quiet Enjoyment • Breach of contract – nuisance provision • Smoking Resident • Nuisance • Trespass • Negligence

15. Presenter Legal Resource Center for Public Health Policy University of Maryland Francis King Carey School of Law 500 West Baltimore Street Baltimore, MD 21201 (410) 706-0842 tobacco@law.umaryland.edu