Finding and Keeping
Good Tenants
by Having Rules About
Smoking in Apartments and Condominiums.
What Do Managers Need to Know About Drifting Tobacco
Smoke?
Frequently Asked Questions.
Question #1
Why would an owner choose to make his/her apartment building
totally or partially smokefree? What are the advantages for the
owner?
Answer:
Smokefree apartment units are not as costly to prepare
for the next tenant. Tobacco smoke covers walls, ventilation systems,
and other exposed surfaces with a dirty, yellow coating.
Question #2
But do tenants care about tobacco smoke?
Answer:
Most tenants don't want to be exposed to drifting tobacco
smoke, even outside.
Question #3
How can managers and owners make rules about where people
can smoke their cigarettes, cigars and pipes? Isn't that discriminating
against people who smoke?
Answer:
No, it isn't. People who smoke are not in a protected
group. Protected groups include people who use wheelchairs, people
who are members of a particular nationality or ethic group, or people
with children. Also, people federal disability rights laws.
People who smoke are in the same category as people with pets.
You can ask a person if they have a pet. You can have House Rules
about pets and you can have House Rules about smoking. You can have
House Rules about where people can smoke, or whether they can smoke
at all on your premises.
Question #4
Why bother to make rules about the use of tobacco?
Answer:
Secondhand tobacco smoke can actually move from one apartment
where a smoker lives to another apartment where a non-smoker lives.
Depending on the age, design, and condition of the building, it
can move through the plumbing system, through the electrical system,
through shared attics, and even through tiny cracks in the walls
and ceilings.
Question #5
What is secondhand tobacco smoke and why should we care
about it?
Answer:
Secondhand smoke includes the smoke that comes off the
tip of a burning cigarette, and the smoke exhaled by a smoker.
Secondhand smoke has been known to be a health risk for more than
10 years. It contains over 4,000 chemicals, 43 of them know to cause
cancer in humans. According to the California Environmental Protection
Agency in a report published in 1997, secondhand smoke can also
cause nasal sinus cancer, heart disease, and sudden infant death
syndrome.
Tobacco Smoke can cause eye, nose and throat irritation, and headaches.
Exposure to tobacco smoke is especially harmful to children and
can cause an increased risk of bronchitis, pneumonia and ear infections.
It can cause asthma in adults and children, and makes the symptoms
of asthma worse.
Question #6
Isn't it unfair to people who smoke to tell them they
can't smoke in their own apartment? Where else can they smoke? After
all, here in California, the law requires no smoking in most workplaces.
The law also requires no smoking in restaurants, and even no smoking
in bars.
Answer:
We suggest separating apartment buildings into smoking
and non-smoking sections including the outdoor areas. This can take
place over time so that current residents who smoke are not inconvenienced.
Hotels have done this for years, even before the law required it.
Since 1995, California law (Section 6404.5 of the California State
Labor Code) has required that 35% of rooms be set aside for non-smokers.
But many hotels have reversed that and have set aside 65% of rooms
for nonsmokers. Sometimes it is difficult to reserve a non-smoking
room because the demand for them is so great.
At the present time, non-smoking tenants who have smokers move
in below or next to them have no choice but to move to avoid the
drifting tobacco smoke. This king turnover is costly to owners.
Question #7
Is it legal to ask a tenant to stop smoking on their patio
or balcony, or even in their own apartment?
Answer:
Yes, if the apartment is not covered by rent control or
a lease agreement. (For rent control information, contact the local
Housing Authority or Rent Stabilization Board.)
If a tenant's smoke has become a nuisance in the opinion of management,
a 30-day notice of Change of Tenancy can be sent to the smoker.
The notice should indicate that as a certain date, "smoking
will no longer be permitted in the following locations," and
list the locations.
It is possible that a tenant who smokes will choose to move rather
than comply with the notice.
Question #8
How many people are still smoking?
Answer:
Here in California, only 17% of the adult population is
still smoking. (and 70-90% of them want to quit.) However, in some
lower economic communities and in some communities of color or particular
nationalities, the numbers could be as high as 35%.
Question #9
Are there any laws about tobacco smoke in apartments?
Answer:
Enclosed common areas are required to be smokefree according
to state law.
If a tenant is disabled or has or has a chronic illness and tobacco
smoke from another unit is causing a worsening of the tenant's symptoms,
Fair Housing Laws apply. The tenant is entitled to a reasonable
accommodation. The landlord may be required to allow the tenant
to relocate to a difference unit, away from drifting smoke. Or,
the tenant may be able to break his/her lease without penalty.
(42 U.S. Code Section 3604 and Cal. Gov. Code Section 12955)
Question #10
Have there been any lawsuits in California about drifting
tobacco smoke in apartments?
Answer:
No, but there have been legal actions in other states.
In one case in Boston, a judge ruled that the amount of smoke in
the apartment made it "unfit for smokers and non smokers alike."
The judge ruled that "the evidence does demonstrate the tenants'
right to quiet enjoyment was interfered with because of the secondhand
smoke."
Question #11
Can secondhand smoke be considered a "nuisance"
like loud music or a loud party that continues after midnight?
Answer:
California law defines a nuisance as "anything which
is injurious to health, … or is indecent or offensive to the
senses, …so as to interfere with the comfortable enjoyment
of life or property."
Smoke, odors, noise or vibration can be considered a nuisance.
Courts also require that a plaintiff prove the behavior is both
"substantial" and "unreasonable."
Question #12
How does a manager or owner begin to establish a smokefree
policy in a building or complex which is fully occupied?
Answer:
Begin by adopting a House Rule which required that common
areas be smokefree. This will include enclosed indoor areas and
outdoor areas around spas, swimming pools, play equipment and barbecues.
Notify all of your tenants of this new rule.
Survey your tenants. Ask if they would like to live in a smokefree
apartment building or the smokefree section of the apartment building.
Choose the section or building with the most "smokefree"
tenants. As tenants move out, advertise the vacant unite as "smokefree"
or "no smoking." Let your tenants know that you are transitioning
to a smokefree or partially smokefree building. Ask their help in
finding qualified "smokefree" tenants.
Ask prospective tenants on the rental application whether they
smoke or allow others to smoke in their home.
Be sure you include in the lease or rental agreement a statement
that there is no smoking permitted in the unit or on the balcony
or patio by residents or guests. (See Sample Smokefree Policy.)
Question #13
How can we advertise our vacancies so as to attract non-smokers
and smokers who prefer a no-smoking policy?
Answer:
Advertise your vacancy as "smoking" or "non-smoking."
Also, get in touch with the Smokefree Apartment House Registry.
The Registry has a web site on the Internet: www.smokefreeapartments.org
Vacancies in smokefree apartment buildings are listed a no charge.
The Registry provides this free service no only to managers and
owners, but also to tenants. Apartment buildings which offer 1/3
of the units next to each other as smokefree can also be listed.
Reprinted with permission from the Smokefree Apartment
House Registry.
Email: smokefreeapartments@pacificnet.net
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