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

Center for Energy and Environment, MPLS 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 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 Multi-Unit 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 Smoke-free 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 smoke-free, 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