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Jury Finds Heavy Smoking To Be Grounds For
Eviction - Boston Globe
Verdict is said to be one of first in nation
By Ralph Ranalli and Jonathan Saltzman, Boston Globe Staff
June 16, 2005
In a case that tobacco law specialists say is one of the first
of its kind in the nation, a Boston Housing Court jury ruled that
a South Boston couple could be evicted from their rented water-view
loft for heavy smoking, even though smoking was allowed in their
lease.
The landlord who rented the Sleeper Street unit to Erin Carey and
Ted Baar ordered them out within a week last November, after neighbors
complained of the smoke odors filtering into their apartments.
Carey and Baar, who each smoke about a pack a day and run an information
technology sales business out of the one-bedroom unit, fought the
eviction, arguing in court that the converted warehouse's shoddy
construction and aging ventilation system were to blame for the
wayward odors.
Last Friday, a jury ruled in favor of the landlord and the eviction.
Even though the landlord could have written a nonsmoking clause
into the lease and didn't, the jury found that the couple's heavy
smoking violated a more general clause banning 'any nuisance; any
offensive noise, odor or fumes; or any hazard to health."
Although the verdict is not binding on other courts, tobacco law
specialists said the decision is one of the nation's first to declare
smoking a nuisance serious enough to become grounds for eviction.
'It is very important, because it is a sign that people are more
aware of how dangerous second-hand smoke is," said Professor
Richard Daynard, chairman of Northeastern University's Tobacco
Products Liability Project, which tracks second-hand smoke litigation
nationally.
'I believe this decision could accelerate the willingness of courts
to decide that, if you are creating smoke that is seeping into
other people's units, you are doing something that has to stop," Daynard
said.
He said the verdict could be cited in other Boston tenant-landlord
disputes.
Carey and Baar are now planning to move out of state, but say they
will countersue landlord Neil Harwood, who told them before they
moved in that he had lived and smoked in that unit for years without
a problem. The couple say that moving their belongings and all
the computer equipment associated with their business twice in
a little more than a year -- they moved into the 33 Sleeper St.
building last summer -- will cost them more than $30,000.
Inside the fifth-floor unit yesterday, the odor of smoke seemed
to a reporter to be strong, but not oppressive, and the only visible
sign of tobacco use was a large, immaculately clean glass ashtray
on their kitchen table. Carey, 41, said she goes through slightly
less than a pack of Marlboro Lights a day, while Baar, 55, said
he smokes about one pack of Parliaments.
Walking around the unit with their lawyer looking on, Carey pointed
out what the couple said were numerous structural problems, including
a ventilation unit patched together with duct tape, holes and gaps
in the exposed brick walls, and a closet ceiling where the planks
of the subfloor of the unit above were clearly visible.
'The condo board doesn't want to spend the money to replace a dying
HVAC system," said Carey, who said she grew up in New Hampshire.
'It's more convenient to get rid of us. . . . We are second-class
citizens because we're renters."
Carey and Baar said the trouble began a few months after they moved
in, when an upstairs neighbor who was also a member of the condo
association board knocked on their door and complained about the
odor of smoke. The couple say they used humidifiers and an air
purifier, but that the complaints continued,
John Forcier, another member of the Dockside Place Condominium
Trust board who is acting as its spokesman, said that the smell
of smoke wafting into the other units was overwhelming and that
one neighbor feared for the health of her 4-month-old baby.
Forcier said in an interview that the couple's heavy smoking, not
the construction of the building, was the problem. At least a half-dozen
other residents of the building are known smokers, he said, but
the only complaints the board ever received were about Carey and
Baar.
'You could walk in the hallway and smell it," said Forcier,
who said his unit isn't affected. 'One time, after spending about
an hour in the unit upstairs from them, I went home smelling like
I had been in a bar."
After the complaints to the board, Carey said she tried to get
Harwood to pay some of their moving expenses if they agreed to
leave, but said the landlord refused and also said he would not
fix the structural problems with the apartment. By November, Harwood,
who was being fined $75 a day by the condo association for the
smoke problem, served them with an eviction notice.
Harwood's lawyer, Peter S. Brooks, said yesterday that the jury
correctly found that, under the state sanitary code, landlords
are not required to 'prevent odors from escaping an apartment" and
that it was the couple's responsibility to moderate their smoking.
In another Massachusetts case several years ago, a superior court
judge found that a tenant could not be evicted for smoking three
to six cigarettes per day, Brooks said, but Carey and Baar's cigarette
use was so constant and so heavy that it rose to the same nuisance
level as loud parties or excessive noise and created an unhealthful
condition for other tenants.
Brooks said he hopes last week's decision will become a useful
tool for protecting the health of other tenants.
This material provided by RESPECT, Resources & Education
Supporting People Everywhere Controlling Tobacco ,a project of
the American Lung Association. Made possible
by Grant No. 04-35307 from the California Department of Health
Services, Tobacco Control Section.
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