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Action on Smoking and Health
A National Legal-Action Antismoking Organization Entirely Supported by Tax-Deductible Contributions
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NJ Condo Complex Bans Smoking; ASH Quoted [12/27-1]
Excerpts from: In more condos, home isn't where the smokers are
By PAULA SAHA The Star Ledger [12/23/04]
For years, Don Williams put up with a downstairs neighbor who smoked. The
stench was so overpowering to Williams it would wake him in the middle of the
night, cause his voice to become hoarse and stress him out.
"It's not only a nuisance, it's a threat to my well-being and my life," said Williams, who owns a condo in Mendham Knolls, a tiny, 12-unit affordable housing complex in Mendham Township.
The next person who moved into the unit didn't smoke, but the condo is back on the market and Williams didn't want another smoker to move in. So he fought to ban smoking in Mendham Knolls altogether.
Earlier this month, the homeowners' association did exactly that by a 9-2 vote (one owner was absent) and joined a growing number of smoke-free condominiums and apartment buildings across the nation.
"Smoking has become an increasingly contentious issue," said Frank Rathbun, a spokesman for the Community Associations Institute in Alexandria, Va..
In New Jersey, anti-smoking groups report that most of their calls from the public are concerning secondhand smoke in multi-family dwellings.
"We hear from tenants in rental units, we here from owners in condo situations, we also occasionally hear from people who are in office spaces," said Regina Carlson, executive director of the New Jersey Group Against Smoking Pollution, or GASP.
Carlson said it is not clear how prevalent homeowner association bans are in the Garden State, but "it is obviously an area that people are now addressing."
Bay View Manor in Ocean City became the first public housing facility in New Jersey to go smoke free, but such bans are controversial. Many question both the propriety and legality of dictating what people can and cannot do in their own home.
Chris Bostic, general counsel to Action on Smoking and Health, a Washington, D.C.-based anti-smoking organization, said no court has ruled directly on the issue of a condominium banning smoking in individual units. Edward Sweda, who runs the Tobacco Products Liability Project based at Northeastern University School of Law in Boston and tracks smoking-related litigation, also said he was not aware of any cases challenging condominium smoking bans.
"There have been many cases across the country brought on behalf of non-smokers trying to get some relief from smoke seeping from one unit to another," Sweda said. In those cases, he said, the courts have generally ruled that there is no constitutional right to smoke.
The underlying principle, said Carlson of NJ GASP, is that these would not be issues "if people found a way to smoke in their own home when it doesn't go out of their own home."
At Mendham Knolls, one resident smokes and she will still be allowed to smoke in her unit. But at least one non-smoking resident wasn't happy with the association vote.
Penny Newell, a trustee of the Morris S. Frank Housing Corp., agrees. The town-created housing corporation, which oversees affordable housing in Mendham Township, markets the units at Mendham Knolls. Newell believes screening prospective buyers on whether or not they smoke is discrimination.
Newell said the unit below Williams is for sale, and he has told her she cannot sell to a smoker.
"I cannot discriminate that way against a potential purchaser," she said.
But Bostic disagrees. "People have the right to do whatever they want in their house until it starts affecting somebody else," he said.
It was Bostic who Williams contacted when he was researching his options to avoid another smoking neighbor. Bostic told him that having the residents of his complex vote on a ban was the simplest way to avoid smoking neighbors.
"There is no right to smoke," Bostic said. "There is a constitutional right to privacy (but) the moment it affects someone else, it becomes a new issue."
David Ramsey, a Morristown attorney who represents numerous homeowners' associations and is past president of the Community Associations Institute, said so long as a substantial number of residents in the complex voted for the ban, it is legal.
"It's discrimination, but it's not illegal discrimination," Ramsey said, likening the smoking ban to no pets or no loud music policies.
As for the issue with the housing authority, Ramsey said, "This is where I think there ends up being a little tension between the public and private sectors. It's not public housing."
Ramsey also said smokers would have other affordable housing unit option in the town.
Newell says she is concerned that the no-smoking rule will discourage buyers, but Williams disagrees. "It makes the place more desirable, that's my point of view," he said.
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