Tobacco-related deaths in the U.S. number more than 430,000 each year. Medical costs directly attributable to smoking total more than $50 billion per year. Every year, 62,000 nonsmokers die from coronary heart disease and another 3,000 die from lung cancer caused by secondhand smoke, also known as environmental tobacco smoke (ETS).

For smokers, the solution is obvious: quit. For nonsmokers, the issue is more complicated. While avoiding circumstances likely to have secondhand smoke, there are many times when that's not so easy. ETS is common in the workplace, in restaurants, even where you live.

The 2000 Surgeon General's Report on reducing tobacco use states: "ETS exposure remains a common public health hazard that is entirely preventable. Most state and local laws for clean indoor air reduce but do not eliminate nonsmokers' exposure to ETS; smoking bans are the most effective method for reducing ETS exposure."

Many jurisdictions have taken the Surgeon General's advice and now prohibit smoking in the workplace and in public buildings. Similar bans have been upheld across the country with regard to schools, restaurants, bars, theaters, hospitals, libraries, museums, art galleries, hotels, child-care centers, malls, public transportation, playgrounds, and recreation centers. And, for nearly two decades now, smoking has been banned on all domestic flights in the United States.

There is no constitutional or legal right to smoke, especially when other people are affected. The dangers of smoking both to smokers and to innocent bystanders is so great, and the data so overwhelming, that virtually any ban on smoking seems possible, and with passing time, probable.

A New York City co-op called 180 West End Avenue Cooperative enacted a complete ban on smoking for new residents. Smoking was already prohibited in common areas, but the co-op board still received complaints. Current residents of the co-op were grandfathered, but the co-op one day will be entirely smoke-free. As for the effect on unit marketability, the board surveyed local real estate agents and determined that many New Yorkers would be delighted to live and raise their children in a smoke-free environment.

Is such a ban enforceable? In Dworkin v. Paley, an Ohio appeals court held that the presence of ETS in an apartment building could be considered a breach of the covenant of quiet enjoyment. In Fox Point Apartments v. Kippes, a Clackamas County, Oregon, jury unanimously found a breach of the warranty of habitability when a smoker moved into the unit below a nonsmoker who then suffered nausea and respiratory problems. Other lawsuits have alleged battery, intentional infliction of emotional distress, nuisance, negligence, trespass, breach of contract, and constructive eviction. The results (and verdicts) have been mixed, even when different lawsuits have made the same allegations.

What does all this mean to community associations? ETS is a known carcinogen that causes the deaths of tens of thousands of nonsmokers every year. The minimum level of exposure that causes deleterious effects is not yet known, so we must assume that any exposure is too much, especially to those who may be particularly sensitive, such as children. The implications have particular relevance for high-rise condominiums and other high-density communities where residents live in close quarters.

Because most governing documents have a provision prohibiting offensive conduct, or conduct that constitutes a nuisance, the Board should not treat complaints about ETS lightly. The Constitution does not guarantee Americans the right to smoke in their homes. No such statutory right exists, either. The right of individuals to engage in activities that risk their health does not include the right to jeopardize the health of their neighbors.

While the issue of smoking in individual homes remains unclear, smoking in or on common areas does not. A well-written rule banning smoking because it is "noxious or offensive" to others, would likely be upheld if challenged. It's best for the board to be proactive and prohibit smoking in common areas, especially meeting rooms, party rooms, lobbies, hallways, elevators and even outdoor playgrounds. Because a no smoking policy for parking lots, sidewalks, and grassy areas may be difficult to enforce (and the board should never enact an unenforceable rule) it might be better to ban smoking at all community events, which could include picnics as well as meetings and socials.

The growing number of lawsuits relating to smoking sends a stark message to HOA leaders around the country: Nonsmokers are the majority, and they are becoming very determined not to let the smoking minority affect their health. An old adage says, "Your right to swing your fist ends at my nose." The "right" to smoke, if there is one, ends at the same place: the nose of the nearest nonsmoker. Homeowner associations that wish to protect themselves from the effects of ETS on nonsmokers must evaluate the needs of their residents and take prudent action.

For more on this subject, see www.smokefreeapartments.org. For a sample No Smoking Policy, "Policy Samples." Excerpts from an article by attorney P. Michael Nagle of Nagle & Zaller, PC.

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