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Smoking at Home Targeted

Apartment and condo residents could face restrictions if a lawmaker's bill to control secondhand smoke is approved.

March 02, 2003|Nancy Vogel | Times Staff Writer

SACRAMENTO — California anti-smoking forces have cleared the air in elevators, offices, bars and restaurants in the last 30 years, but home -- that's always been a smoker's sanctuary.

If home is an apartment or condominium, however, that might not always be so.

Such dwellings have become the next front in the battle over the right to smoke and the right to avoiding breathing cigarette smoke.

A bill pending in the Legislature by Assemblyman Joe Nation (D-San Rafael) would ban smoking in the common areas of multifamily buildings, such as laundry rooms and courtyards. It would allow landlords or homeowner associations to penalize residents who repeatedly bother neighbors with drifting smoke. And it would set a 2006 deadline for a ban against smoking in any apartment or condominium building except in units designated for smokers.

"If you are in apartment 3A and the people below you in 2A smoke day and night and ventilation is poor," Nation said, "you really don't have much to do about it except complain. I think most people would agree that that's not right."

Close quarters and drifting smoke have long sparked fights among neighbors, tenants and landlords. Sometimes the disputes land in court, with nonsmokers claiming a nuisance, battery or interference with the enjoyment of their home.

Nation's bill would give nonsmokers more rights in a largely unregulated realm. It also would reverse the presumption that a person is free to smoke in an apartment unless forbidden by a lease.

No law protects smokers from discrimination by landlords who either don't want to rent to them or charge a higher rent because of the odor, stains and fire hazard that smoking brings. But neither does current law give landlords and homeowner associations clear authority to restrict drifting smoke in an apartment complex.

"It's a huge issue," said Esther Schiller, director of Smokefree Air for Everyone, a nonprofit group in Granada Hills that is supported by a state grant of cigarette tax money. "It's a mountain that's been hidden."

People irritated by secondhand smoke call Nation's bill long overdue. They said they can sic police on a neighbor blasting music at 2 a.m., but can get no help to combat potentially dangerous cigarette smoke.

"They can do whatever they want in their apartment; I just don't want them to send smoke into mine," said Harold Shanbaum, 69, who lives near Beverly Hills. Since several smokers moved into the apartment downstairs in December, Shanbaum said, his wife has slept on the living room floor to avoid smoke that drifts through cracks in floorboards and ceiling molding. She complains of a constant cough, burning eyes and sore throat.

When Shanbaum asked his landlord to caulk cracks in the apartment, the landlord's attorney wrote back: "There is no legal right to stop someone from smoking in their abode."

Shanbaum said he is considering taking the dispute to small claims court.

"Smoke pollution is acceptable," he said, "at least under current law."

Smokers counter that California's restrictive laws make the home about the last place smoking is acceptable.

Ray Domkas called Nation's bill, which is likely to be debated in a legislative committee this month, more of the same philosophy that led to a ban on smoking in restaurants and bars in 1994 and 1998.

"This is something that should be controlled by the landlord, not the state," said Domkas, a Burbank resident and president of the California chapter of Forces, a national nonprofit group that describes itself as dedicated to fighting government interference in consumer choice.

"Little by little, they're inching toward a total smoking ban," Domkas said, "even though they claim they're not looking for a total and complete ban.

"The anti-smoker wants everything," he said. "They want the entire world to themselves. Intruding on a man's castle is the last straw."

Others see it as a logical next step in California.

Orange County attorney David B. Ezra studied the law surrounding tobacco smoke in apartment buildings for a 2001 Rutgers Law Review article. He found that Minnesota restricts smoking in the common areas of such buildings, and Utah designates drifting cigarette smoke a nuisance, making it easier for people to sue successfully. A dozen years ago, Long Beach banned smoking in the enclosed common areas of apartment buildings.

It is no surprise, Ezra said, that California lawmakers are turning to the close quarters and shared ventilation systems of apartment buildings.

"My theory has been that the more areas where nonsmokers can be without breathing in tobacco smoke, the more they get used to clean air and the more annoying those instances become when they're actually subjected to tobacco smoke," Ezra said.

But trying to regulate secondhand smoke from the long-held sanctuary of people's homes promises to be politically volatile.

In Montgomery County, Md., last fall, the county council updated its indoor air pollution ordinance to include tobacco smoke as a substance about which people could complain to county regulators.

"Why should we say that cigarette smoke -- which is after all a health hazard -- is something people can't complain about when they can complain about all these other things like formaldehyde?" said county spokesman Patrick Lacefield.

The proposed ordinance caused a furor in the county of 900,000 on the outskirts of Washington, D.C.

On radio and television talk shows, people called it an invasion of privacy. Political commentator George Will, a county resident, compared it to Afghanistan's Taliban extremists, Lacefield said.

The county executive vetoed the bill. Cigarette smoke was kept off the county's list of indoor air pollutants.

"It may sound strange to include it," Lacefield said, "but it also may sound strange to not include it."

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