Are Smoking Bans Legal in Apartments?

Homeowners associations and rental property owners are evaluating their policies surrounding secondhand smoke as laws and attitudes across the country evolve.  Condominiums, cooperatives and co-housing developments have approached this issue by changing their CC&Rs through a membership vote, but apartment owners have several other considerations.

People have become accustomed to signs that ban smoking at work and in other public buildings, but it gets dicier when landlords start to restrict smoking inside and outside residential buildings.

If current trends continue, however, they will be getting some assistance from their local municipalities.  City officials across the country are attempting to address threats to public health and smoking cigarettes is on the hit list.

Who smokes?  According to the Centers for Disease Control and Prevention (CDC) the most recent figures available show about 46 million adult Americans were smoking in 2008.  That is about one out of every five people, with gender divisions at 23.1% for the men and 18.3% for the women.

When broken down by race/ethnicity, the numbers were as follows:

Whites 22.0%
African Americans 21.3%
Hispanics 15.8%
American Indians/Alaska Natives 32.4%
Asian Americans 9.9%

Unfortunately, there were more cigarette smokers in the younger age groups with 23.7% of 25 to 44 years olds current smokers, compared with 9.3% of those aged 65 and older.  Still, with a super-majority of Americans not smoking, it should be no surprise that tolerance for the habit has waned.

Respecting our behind-closed-doors mentality, the sanctity of one’s home has been considered utterly sacrosanct whether rented or owned.  However, as sacred and inviolable as the concept may be in theory, landlords are getting pressure from their tenants as Personal Injury Attorney Philadelphia, insurance carriers and city fathers to revamp or develop and disclose  a building’s smoking policies.

As there is no specifically outlined Constitutional right to smoke, it is not a fundamental freedom that is protected.  Many suits over the last several years attempted to overturn regulations that prohibited smoking in bars, restaurants and other public places without success.

Therefore, most legal experts agree that a private owner would not be prohibited from proclaiming his property a ‘smoke free’ zone. Always check with your local apartment association and city manager as a precaution as regulations in this area are in a state of flux and change.

Banning smoking in common areas or outside the complex is relatively simple, but carrying this forward to balconies, patios and individual units can be an extraordinarily delicate maneuver and certainly a challenge for any manager.

The California Apartment Association, however, is a very vocal supporter of non-smoking ordinances, particularly the first one that was passed by the city of Calabasas, California, in January of 2008.  The Calabasas ordinance bans all smoking within the city and has been held up as a model for other cities to adopt.

The ordinance will also require landlords to convert 80% of the city’s apartment units to smoke-free by 2012. Smoking anywhere in the city where a non-smoker could congregate is an automatic misdemeanor with a fine of $250.

As non-smokers are considered to ‘congregate’ everywhere, the ordinance defines this as including public sidewalks and apartment complexes.

Under Calabasas’ law landlords do not need to make allowances to accommodate smokers beyond designating a smoking-allowed outside area that meets certain conditions of size and distance from entrances, balconies and units.  However, the City manager may waive this area requirement in the event he or she deems space is unavailable or it is impractical to create.

Landlords are specifically allowed in the language of the Ordinance to decide to designate their units as  ‘100% smoke-free’ complexes.

To cover enforcement, the ordinance gives the landlord the right to sue tenants who smoke in prohibited areas, but it does not require him to do so.

It also gives other tenants the right to bring actions against the smokers, so it will be interesting to see how that plays out over the next few years.

However, no matter how much an owner would like to accelerate change, landlords generally may not take away an amenity that an existing tenant has previously enjoyed.  The majority of California cities with non-smoking ordinances specifically ‘grandfather’ existing tenants who smoke.

California cities with such an ordinance include Calabasas, Loma Linda, Temecula, Belmont, Novato, Dublin, Glendale, Santa Monica, Albany and Oakland.  Check these cities’ websites and they can probably direct you to the specific language.

You may also want to direct your own city fathers to these sites if you don’t have an ordinance in your town.

There are many recommendations from the Environmental Protection Agency (EPA) with regard to smoking and indoor and outdoor environmental air quality. President Bill Clinton in 1997 got the ball rolling when he banned smoking in all executive branch government buildings.

In 1998 the U.S. Department of Transportation followed suit by banning smoking on all domestic commercial flights.  “Smoke free” environments often now include the complete grounds for commercial properties.

As of February 2010, twenty-five states had passed smoking bans for all public places – there are exemptions for tobacconists, cigar bars, casinos and/or private clubs – but Calabasas may still own the title as having the strictest smoking ban in the country if not the world.

Second hand smoke has been a verified health risk for decades, of course, but now third hand smoke has been defined as a threat to public health.

Tobacco toxins can persist in automobile interiors and inside buildings for months after smoking has ceased.

Smoking residues become embedded in furnishings and clothing and are re-distributed by HVAC systems from other units.  They can also seep in through a home’s natural ventilation system of doors and windows.

On the medical staff of Dana-Farber/Harvard Cancer Center in Boston, pediatrician Dr. Jonathan Winickoff warns that babies and children are particularly vulnerable to third hand smoke.  A study he led on the affects of third hand smoke on children was published in the January 2009 issue of the magazine PEDIATRICS.   He states that as children are closer to the ground – crawling around on carpet and other smoke-absorbent flooring – they are being exposed to anything that may off-gas.

Of course, any non-smoking campaign is music to fire insurance underwriters and any fire department chief.  Science Daily reported in 2000 that:

“Based on a worldwide study of smoking-related fire and disaster data, UC Davis epidemiologists show smoking is a leading cause of fires and death from fires globally, resulting in an estimated cost of nearly $7 billion in the United States and $27.2 billion worldwide in 1998. The study is published in the August [2000] issue of Preventive Medicine. Smoking causes an estimated 30 percent of fire deaths in the United States and 10 percent of fire deaths worldwide.”

These incendiary devices – that cause so much misery in later life – also fall into the hands of children, a frightening thought without any additional elaboration.

One organization, Smoke Free Apartments (SFA), has suggested Gold, Silver and Bronze designations be awarded to any apartment building that meets specific criteria for smoking  limitations and bans.  They also recommend that if you want to test the water with your residents, consider taking a simple tenant survey.
SFA claims their surveys have documented that 80% of residents want to live in a smoke-free environment.  Your tenants might be similar.

There are other liability issues to consider with regard to secondhand smoke as well.  In January of 2006, the California Air Resources Board (ARB) identified tobacco smoke as a “Toxic Air Contaminant with no safe level of exposure… “, and further stated, “Secondhand smoke is now formally identified as an airborne toxic substance that causes and/or contributes to death or serious illness.”

Although most people now might consider landlords innocent of any wrongdoing when tenants create the second and third hand smoke?  Once the pendulum swings the other way, it can move pretty quickly.  If you are concerned about the health of your tenants, perhaps now is a good time to establish some smoke free policies.

On a positive note, advertising your vacancies indicating the units are ’smoke free’ seems to be a winning strategy and perceived by tenants as a very desirable amenity.  Many landlords are in the process of developing a smoking policy, as more municipalities are requiring the policy be disclosed as part of any lease agreement.

Oregon’s landlord disclosure law, which went into effect January 1, 2010, requires landlords to advise prospective tenants of smoking policies.  Landlords with a restricted smoking policy may fill their vacancies faster than those without one.  Surveys in the Portland/Vancouver metropolitan area consistently show 70% to 75% of the respondents state a preference for living in a smoke-free complex.

Although the health of occupants is always the primary concern for a landlord, reducing or eliminating smoking can also:

  • Reduce the cleaning requirements for blinds, drapes, rugs and walls
  • Maintain higher efficiency and require fewer repairs in HVAC systems
  • Lower expenses for painting, refurbishing and general maintenance
  • Improve grounds appearance (without cigarette butts)
  • Lower fire/theft insurance premiums

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