HomeMy WebLinkAbout2015/03/05 Public Comments Written Communication AM E RI CAN
LUNG
ASSOCIATION�
IN CALIFORNIA
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SMOKEFREE
HOUSING
INITIATIVE
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� AMERI�AI� L�JNG e�S50CIATl�i�l�
IN CALIFORNIA
2014 Tenant Survey About Secondhand Smoke
RESULTS
n=179
1. Yes 97% Secondhand smoke comes off the end of burning cigarettes. Do you think breathing
secondhand smoke is bad for your health?
2. Yes 87% Have you ever been bothered by cigarette smoke coming into your apartment from
somewhere outside?
3. Yes 83% Have you ever been bothered by cigarette smoke coming into your apartment from a
neighbor's apartment?
4. Yes 83% Have you been bothered by cigarette smoke when using a shared area of the complex
such as the pool, courtyard, stairway, or walkway?
5. Yes 9% Do you allow smoking in your apartment?
6. Yes 35% Do you allow smoking on your balcony or patio?
7. Yes ' 92% People have the right to live in smoke free housing.
8. Yes 89% I want my complex to have a no-smoking policy for the areas shared by all tenants (like the
pool, laundry room, playground, and recreation room).
9. Yes 79% I want my complex to have a no-smoking policy for balconies and patios.
10. Yes 81% I want my complex to have separate buildings for smoking and non-smoking apartments.
11. Yes 88% I want my complex to have a no-smoking policy for inside all apartments.
12. Yes 76% I want my complex to be completelv non-smoking.
13. Yes 88% We need laws to protect non-smokers in apartment buildings from secondhand smoke.
14. Yes 79% Apartment managers are allowed to make no smoking rules for their complexes.
15. Yes 26% I would move if my apartment manager made a new rule that no one could smoke inside their
apartments or the shared areas of the complex.
16. Yes 45% I have complained to the manager about a problem with other tenants' smoking.
17. Yes 19% I am afraid to complain to the manager about a problem with other tenants' smoking.
18. Yes 49% Someone under the age of 18 (children) lives in my apartment.
19. Yes 19% Someone over the age of 65 (seniors) lives in my apartment.
20. Yes 20% Someone who is pregnant or has a medical problem such as asthma, lung disease, cancer,
heart disease, high blood pressure, diabetes, or allergies lives in my apartment.
21. Yes 15% I have smoked a cigarette in the past 30 days.
22. Yes 25% Someone else in my household smokes cigarettes.
23. Yes 20% Someone in my household wants to quit smoking.
24. Please tell us which CITY you live in: 100%- City of Chula Vista
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IN CALIFORNIA
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Results from 179 Chula Vista Tenants
Report prepared by Marianne Brown, MPH
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�O 2014 This material was made possible by funds received from the California Department of Public
Health, under contract#CTCP 10-10196.
Backaround
During October 2013 –April 2014, staff from the American Lung Association in California, San
Diego office (ALAC) visited community fairs, the downtown area and a community college in
the City of Chula Vista to survey people that lived in apartments. The 1-page, 24-item survey
asked tenants to report esposure to secondhand smoke at home and to provide opinions about
various smoking policies for apartment complexes. ALAC staff coltected 179 surveys; survey
', data�vere entered into an Escel spreadshcet by project staff and then exported into PASW
, Statistics for descriptive analysis by the program evaluator.
Description of Respondents �
' Almost all (96%) respondents �vere Chula Vista residents. About l�alf(49%) reported that there
were children living in their aparlments �vhile 19% oP households include a senior(over age 65).
One in five (20%) lived with somc with soineone that was pregnant or had a medical condition
' (e.g. astluna, diabetes, hearl discase, cancer). OPthe 179 respondents, 15% smoked cigarettes
' while 29% of households contained at least one smoker. About three in five (58%) households
with a smoker included someone �vho wauted to quit smoking.
, Survey Results
, �1. Atlittrdes nbo:d Smoki��g
Almost every (97%) respondent was a�vare that breathing secondhand smoke �vas bad for
one's health. In fact, fe�ver than 1 in 10 (9%) allo�ved people to smoke inside their
apartments, while roughly 1 in 3 (35%) allo�ved people to smoke on their balcony or patio.
Some people such as children, seniors and those witl� medical conditions are more sensitive
to secondhand smoke esposure. About 60% of households surveyed had at least one resident
of this type. Households with mcdical conditions nnd those with children were significantly
more likely to restrict smoking indoors and on patios/balconies. Households with seniors -
�vere significantly more likely to only restrict smohing outdoors. Households �vith smokers
were sianificantly more likely to al(oiv smoking in their apartments and on their patios and
balconies.
Tnble l. At Nonte Smoku�g Policies hy HotiseJrold Tj+pe
Smoker Children Medical Problem Seniors
POl%C Yes No Yes , No , Yes No Yes No
Allo�v Smoking Inside )9% 1% 4% 14% 0% 12% 9% 10%
Sig. 2'Z=9LG,p=.000 �Z=4.9, p<.OS x'-=d.9,p<.OS NS
AIIowSmokingoit 73°/a 28% 21% 49% 3% 4d% 21% 39%
Pa[io or Qalcony
Sig. x'-=19.4,p=.000 xZ°15.4,p=.000 x'-=203,p=.000 x'-=4.0,p<.OS
/3. Bothered by Seco�idhand Smoke
Overall, 90% of respondents had been bothered by secondhand smoke from somewhere
within their apartment complex: 87% of the tenants surveyed had been bothered by cigarette
smoke drifting into tlieir apartments from sanewhere outside; 83% had been bothered by
smoke coming specifically from a neighbor's apartment, and 83°/o liad been bothered by
smoke in a sliared area of Uie co�nplex such as ihe pool or slainvay. Non-smokers had morc
complaints aboul driIling cigarette smoke—they were significantly more likely to rcport
being bothered by smoke drifling in from outside, from a neighbor's apartment, and
1
especially shared areas of the complex. About 1 in 3 smokers indicated that they had been
bothered by smoke; too.
Table 2. Percent of Tenants Botherer!by Secondhand Sntoke, bv Sotrrce
Source of Drifting Smoke All Smokers Non-Smokers Sign.
From somewhere ouiside 87% 33% 96% x2=77.7,p=.000
From a neighbors a artment 83% 30% 92% x'-=62.5,p=.000
From a shared area 83% 30% 93% x'-=655,p=.000
C. Complaints to Mmtagement aboid Secazcflaand Smoke
Many residents (79%) were a�vare that apartment managers are allowed to make no smoking
rules for their complexes and 4�% of tenants had complained to the manager about a problem
with other tenants' smoking. Tenants that understood management's policy setting ability
were sienificantly more likely to complain compared to those unaware of managements'
po�ver (51% vs. 24%; xz=9.3, p<.01). Only about half(49%) of tenants bothered by
secondhand smoke had complained; another 19% �vere too afraid to complain. Households
with children �i�ere more likely to complain (52% vs. 38%; xz=3.4; p<.OS); however;
households with medical issues were less likely to complain (22% vs. 50%; �=9.2, p<.O1).
D. Support for Smoke Free Policies
The majorit}� (92%) of tenants agreed that people had the right to live in smoke free housing,
including equal numbers of smokers and non-smokers. Seventy-six percent of tenants
reported that they wanted to live in an apartment complex that �vas comnleteh� non-smoking.
More (79%) �vanted no-smoking policies for balconies and patios; �vhile even more (81%)
�vanted separate buildings for smoking and non-smoking apaRments their complex. Support
�vas very high (88%) for a no-smokine polic}� for inside all apartment units and highest
(89%) for smoke free areas shared by all tenants (e.g. laundry room; pool).
As one �vould expect, non-smokers expressed more support for each of the suggested smoke
free policy options. Smokers �vere most supportive of separate buildings for smokers and � "
least supportive of smoke free complexes.
Table 3. Percent of Tenmrts in Favor of Smoke Free Policy, by Aren
Complex Area All Smokers Non-smokers Sign.
Shared areas 89% 44% 97% A�=67.7,p=.000
Inside all units 88% 41% 97% xz=69.4,p=.000
Se arate buildinos 81% »% 85% AZ=13.4, p<.O1
Patios & balconies 79% 37% 86% xZ=33.1,p=.000
Entire com lex 76% 30% 84% x'-=37.4,p=.000 _
About 1 in 4 (26%) of tenants indicated that if the manager made a new rule that no one
could smoke inside their apartments or shared areas of the complex, they would move.
Smokers were significantly more likely to indicate they would move, compazed to non- .
smokers (70% vs. 18%; x2=32.0, p=.000). It«�as unclear why non-smokers �vould choose to
move. Of this group;jusi 13% reported at least one other smoker lived in their apartment;
perhaps some of their frequent guests «�ere smokers.
�
I
� Sap�ort fa•Smoke Free Laivs
'1'he majority (88%) of tenants agreed that laws were needed to protect non-sn�okers in
apartment buildings from secondhand smoke. Support was very high among non-smokers
(97%) compared to smokers (d 1%) (�=69.4, p=.000). Support for such laws was significantly
higher among tenants that had been bothered by secondhand smoke in their compleses,
compared to those that had not been bothered (94% vs. 33%; x2=583, p=.000). Tenants that
had complained to management�vere more supportive of smoke free laws compared to those
who had not complained (96% vs. 82%; �=9.2, p<.01). 1-Iouseliolds �vith children (93%) or
people �vith medical issues (97%) were also very supportive of smoke free laws.
Discussion
The l5% smoking prevalence rate among the sample of respondents is close to the state average.
"Che majority of those surveyed reported high levels of secondhand exposure and were supportive
of complex policies and city laws that would protect them fi�om additiaial exposure. It should be
noted that this same survey has been used by other tobacco control programs in San Diego
County for a few years, and results from this survey indicate that puUlic demand far smoke free
living may be at an all time high.
The survey results indicated strong support for smoke free shared areas of complexes as well as
separate buildings for smokers and non-smokers. Discussions �vith comples management liave
revealed challenges related to separating smokers including vacancy rates and enforcement. So
�while the idea"may appeal to tenants, it is not popular �vith property managers.
Survey res�ilts indicated that the best advocates for suiokc Il�cc housing would be tenants that had
��been bothered by secondhand smoke in the past and tenants �vith medical issues. While
households with medical problems had tUe striclest home smoking policies, they were also the
least likely to complain about other tenants' smoking. They may lecl particularly vulnerable;
�tobacco control advocates need to be sensitive and address any fears about complaining,
including fears of eviction.
Although smoking levels are at an all-time low in California, 70% of smokers surveyed indicated
dtey would move if units and shared areas of their complex becamc smoke free. A local
ordinanee mandating smoke free multi-unit hotising city-wide may be the only�vay to prevent
smoking households from moving to a complex tllat allows smoking. People that had previously
complained to management about smoking problems were also most supportive of city
ordinances to mandate smoke free living. These complliners would be the ideal citizens to offer
public testimony during council meetings.
Pinally, policy makers should remember that smokc frce policies have been sho���n to reduce
_ smoking prevalence. It should be noted that survey respondents from smoking households
reported that 58% of smoking tenants wanted to quit. Making apartment compleses completely
smoke free may be just the push they need to quit smoking for good.
3
f«Tobacco Policy
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Public Opinion Research Survey: July 2006
Survey of California Latino Renters
About Smokefree Multi-Unit Housing Laws
Badcground
Drifting secondhand smoke in multi-unit housing from neighboring units, balconies and outdoor areas is a health hazard for many
tenants. The increasing awareness of the dangers of secondhand smoke and the acceptability of smokefree environments are
encouraging tenants to seek out smokefree units and property owners to declare their buiidings smokefree. In addition, several
cities and counties have passed wdinances restricting smoking in multi-unit housing. Since 2003,the Center for Tobacco Policy
8 Organizing has commissioned a series of scientific public opinion research surveys to assess aititudes among tenants,voters,
and apartment owners and managers about secondhand smoke exposure and what to do abou[it.The surveys were conducted
by Goodwin Simon vctoria Reseazch.
In July 2006, 400 Latino renters in Cal'rfomia were surveyed to assess their views about secondhand smoke exposure in their
homes,and what solutions they would support for limiting their exposure. 97% of the interviews were conducted in Spanish.
Latino renters were surveyed because the Center's 2004 poll of Califomia renters showed stronger support for smoking
resVictions in multi-unit housing among Latino renters than California re�ters overall.
Summary of Key Fndings
Secondhand Smoke Exposure in Muiti-Unit Housing
Latino renters in Califomia understand secondhand smoke is harmful,are bothered by drifting secondhand smoke and have indrviduals
living in their apartment complexes who are significantly impacted by expasure:
• 98% believe that secondhand smoke is harmful to those who inhale it
• 86% think that secondhand smoke can drift from apartment to apartment
• 82% believe that secondhand smoke can drik from outside into an apartment unit
• 63% have experienced secondhand smoke drift into their apartment
• 63% are bothered by secondhand smoke drifting into their apartment
• 64% are bothered by secondhand smoke in indoor common areas of their apartment building
• 58% are bothered by secondhand smoke in outdoor common areas of their apartment building
• 88% have children living in their apartment complex
• 5�% have senior citizens I'roing in their apartment complex
Smoking Restrictions in Multi-Unit Housing
Latino renters in Califomia are supportive of different types of laws to protect residents in mulli-unR housing from secmdl�nd
smoke exposure:
• 82%feel that there is a need for laws to fimit smoking in apartments
• 85% support a law to prohibit smoking in outdoor common areas of mutti-unit housing
• 82%suppat a law requiring apartment buildings to offer non-smoking sections of units
• 95%would prefer to live in an apartment building where smoking is not allowed anywhere or where there are
separate smoking and non-smoking sections
• 60% believe that if there is a law restricting smoking in apartments,that an individual who repeatedty violates
those resfictions should be evicted
The Center forTobacco Policy&Organizing• 1029 J Street,Suite 450•Sacramento,CA 95874
Phone:(916)554.5864• Fax:(916)442.8585
-- - - - - - - --- — -- — - -
www.Center4Tobacco Pol icy.org
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Survey of California Voters
About Policies in the Tobacco Retail Environment
Public Opinion Research Survey:Aprii 2011
Background
The sale of tobacco products to minors is a problem in most cities and counties in California. Illegal sales by retailers
contribute to the start of a lifelong addiction of many youth to tobacco.To combat this problem, many communities have
passed a law that requires retailers to obtain a license to sell tobacco products.A local tobacco retailer licensing ordinance
includes an annual fee to fund an enforcement program and provisions for suspending or revoking the license for violations.
In addition, some communities are considering other policy options, such as restricting where and how tobacco products
are sold,that can be "plugged-in" to the basic licensing ordinance to provide greater health protections for youth.
In April 2011, the Center for Tobacco Policy � Organizing commissioned a survey of 600 California voters to gauge the
level of support for licensing ordinances and other policies in the tobacco retail environment.The survey was conducted
by Goodwin Simon Strategic Research. A memo summarizing the results and other survey documents are available at
www.Center4TobaccoPol icy.org/polli ng-retai ler-pol icies.
Summary of Key Findings
Provisions of a Tobacco Retailer Licensing Ordinance
California voters understand the need for greater enforcement of laws against selling tobacco products
to minors.They support a licensing ordinance and the different provisions of such a law:
• 45% feel that it is easy for minors to buy cigarettes at local retail stores
• 83% support requiring store owners to get a license to sell cigarettes and other tobacco products
• 80% favor a fee of a few hundred dollars a year that would be used to enforce the law against selling
cigarettes to minors
• 88% agree that a store oevner who repeatedly sells cigarettes to minors should have their license to
sell tobacco products suspended
Policies to Restrict the Location of Tobacco Retailers
California voters support laws that limit where tobacco retailers can be located:
• 73% support a law prohibiting any business located within 1,000 feet of a school from selling tobacco products
• 57°/a feel that stores that are currently located within 1,000 feet of a school should not be allowed to continue to
sell tobacco products if such a law was adopted
• 57% support requiring stores that sell tobacco products to be located at least 500 feet apart from one another
Policies to Restrict How Tobacco Products are Said
California voters support laws that restrict the manner in which tobacco products are sold in the retail environment:
• 82% support requiring stores that sell tobacco products to post warning signs about the dangers of tobacco use
• 66%support a law prohibiting stores that sell meth pipes from also selling tobacco products
• 54°/o support prohibiting the sale of individual little cigars and cigarillos
www.Center4TobaccoPol icy.org
Arguments For and Against Policies in the Tobacco Retail Enuironment
California voters are more receptive to arguments in favor of restricting the location of tobacco retailers and restrictions
on tobacco product sales than they are to arguments opposing these policies. In each section below,the first two
arguments listed are in support of the policy and the second two arguments are in opposition to the policy: i
Prohibi6ng Businesses/rom Selling Tobacco Products within 1,000 Feet o/Schools
• 79% think a good reason to restrict tobacco retailers near schools is that this law will reduce illegal sales to minors
• 79% think a good reason to restrict tobacco retailers near schools is that this law can reduce youth smoking
• 48% think a good reason to continue to allow tobacco retailers near schools is that it's wrong for the government
to tell stores where they can and cannot do business
• 35% think a good reason to continue to allow tobacco retailers near schools is that a law like this could hurt the
economy and jobs during this recession
Requiring S�ores to Post Health Waming Signs about Tobacco Use
• 83°/o think a good reason to require warning signs is that these signs would encourage people to quit using
tobacco and would prevent young people from starting to use tobacco
• 83% think a good reason to require warning signs is that we know that warnings really work in helping people quit
using tobacco, so they should be visible before people buy tobacco products
• 51% think that a good reason to not require warning signs is that warning labels are already on the tobacco
packages and adults can make up their own minds without being forced by the government to see even more
intrusive information
• 41% think that a good reason to not require warning signs is that these signs would require retailers to post
negative information about the very products they are trying to sell
Eliminating fhe Sale of Individual Litfle Cigars and Cigarillos
• 70% think a good reason to prohibit sales of individual little cigars and cigarillos is that they are inexpensive and
marketed to young smokers,so this law would discourage their use among young people and reduce youth smoking
• 65% think a good reason to prohibit sales of individual little cigars and cigarillos is that they are developed and
marketed primarily to African Americans and Latinos, so this law can help reduce smoking rates among these groups
• 50% think a good reason to allow sales of individual little cigars and cigarillos is that these products are used less
frequently than cigarettes, so requiring them to be bought in packages Is a needless hassle for the customer
• 50% think a good reason to allow sales of individual little cigars and cigarillos is that it is wrong for the government
to tell retailers how to sell certain products
Survey Methodology
This survey was conducted by Goodwin Simon Strategic Research.This survey data represents information acquired from
600 voters by telephone interview, including both land lines and wireless numbers. Interviews were conducted in both
English and Spanish, with about 8% of the interviews conducted in Spanish. The margin of error for the survey results is
plus or minus 4% at a 95% confidence level.
Resources
The Center for Tobacco Policy & Organizing has many resources available on tobacco retailer licensing ordinances
and other policies in the tobacco retail environment available at www.center4tobaccopolicy.org/localpolicies-licensing.
These i nclude documents that track ord i nances in the tobacco retail envi ronment,a fact sheet on drug paraphernalia in tobacco
retailers and a document showing the effectiveness of tobacco retailer licensing ordinances in reducing sales to minors.
For model ordinance language for many of the policies in the survey, visit the website of the Technical Assistance Legal
Center at www.phlpnet.org/tobacco-control.
The Cenfer for Tobacco Policy&Organizing •American Lung Association in Cal'rfornia
1029 J Sheet,Suite 450 •Sacramento,CA 95814 •Phone:(976)554.5864 •Fau:(916)442.8585 •vnvw.Center4TobaccoPolicy.org
�2011.Calilomia OepaRment of Puhl�c Healih:Funded under contrac[509-11173.
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Understanding California's New Smokefree Housing Law
November 2011
On September 6, 2011 Governor Jerry Brown signed Senate Bill 332 into law making it explicit that landlords have the
right to make their rental properties smokefree. SB 332 was authored by Senator Alex Padilla(D-San Fernando Valley)and
goes into effect on January 1, 2012.The new law simply places an existing authority into state law. In fact, many landlords
throughout California have already prohibited smoking on their properties. More importantly, many cities and counties
in California have gone much further than this new state law and prohibit smoking in multi-unit housing through local
ordinances and housing authority policies.
This new state law has generated many questions from advocates, tenants, landlords and elected officials. This
document serves to answer those questions by providing an overview of California's new smokefree housing law
and how it impacts the different types of smokefree housing policies. For more smokefree housing resources, visit
www.center4tobacco pol i cy.o rg/local pol i ci es-smo kefree h o usi ng.
Common Questions about the New State Smokefree Housing Law
What specifically does this new What does this new law mean What does this new law mean
law do? for smokefree housing policies for existing and future local
While it has always been legal for for condominiums or housing smokefree housing ordinances?
landlords to prohibit smoking in the authorities? The state law specifically does
apartments they own and manage, It was legal to prohibit smoking in not preempt any local ordinance
this law specifically spells out condominiums and housing authority in effect on or before January 1,
that authority in state law. Moving properties prior to this law and it 2012, including ordinances that
forward, landlords who adopt a remains legal to do so. Homeowners' 9randfather tenants who smoke,
smoking restriction for anywhere associations and housing authorities and it does not preempt any
on their property would need to rovision of a local ordinance in
include a rovision in all leases and can continue to adopt smokefree P
P housing policies. Homeowners' effect after January t, 2012 that
rental agreements specifying where associations and housing authorities restricts smoking. This means
smoking is prohibited and provide ,,,�ere likely already providing adequate that cities and counties can
adequate notice for these changes notice for changes and including continue to adopt ordinances
in accordance with federal, state information in leases and rental that create nonsmoking units in
and local notice requirements. agreements when implementing multi-unit housing. Landlords
nonsmoking policies, which this new implementing a local ordinance
law requires landlords to do. For more Will need to include a provision in
information about how to implement all leases and rental agreements
these types of policies, see the fact specifying where smoking is
sheets from the Technical Assistance Prohibited and provide adequate
Legal Center on creating smokefree notice for these changes in
policies for affordable housing and accordance with federal, state and
condo comp�exes. local notice requirements. These
requirements are standard for any
sort of changes in terms for tenants
and mostly already included in
ordinances passed prior to this law.
The Center for Tobacco Policy&Organizing •Amencan Lung Association in California
1029 J Street,Suite 450•Sacramenio,CA 95874 •Phone.(916)554.5664 • Fax:(976)442.8585•www.Center4TobaccoPolicy.org
O 2017.Calrfomia Department of Public Hesfm.Wndetl under cnnVact a09-t t 173.
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Authority to Regulate Smoking
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A Law Synopsis 6y the To6acco Control Legal Consortium
��� Legal Authority to Regulate Smoking and
Common Legal Threats and Challenges
Chery1 Sbarra .
,
FUNDED BY:
April 2004
��
TaOeeeo TeeMieal
AecFStarwe C�rtl�an
Suggested citadon:
Cheryl Sbazre,Tobacco Control Legal Consortium,IrgalAxtbonty io Regulate Smoking and
Common Isga!Tbnau and Cbalknger(2004).
Copyright 0 2004 by the Tobacco Control I.egal Consortium
The Consortium can be reached aC
E-mail: tobaccolaw�wnutchell.edu
Web: wwwtobaccolawcentevoLg
TeL• (651) 290-7506
Legal Authority to Regulate Smoking and
Common Legal Threats and Challenges
Cheryl S6arra
Secondhand smoke is responsible for the earty deaths of up to 65,000 Americans each year.' It is ihe third leading
preventable cause oi death in the United States, surpassed onty by smoking and alcohol consumption.' The World
Health Organization and the United States Environmental Protec[ion Agency classify secondhand smoke as a known
human carcinogen,for which there is no known sate level of e�osure. There also ebsts abundant scientfic data linking
secondhand smoke to numerous negative health outcomes,including immediate adverse respi2tory and cardiovascu-
lar effecLS.
States, municipalities and other political subdivisions have responded to the health hazards of secondhand
smoke by prohibiting smoking in indoor areas. The number of smoke-free communities has grown dramatically in
recent years. This law synopsis reviews the most common legal challenges to smoke-free ordinances. The vast
majority of these challenges fail. When plaintiffs succeed in striking down a smoke-free ordinance,the reason is
usualy preemption or a procedural error during passage of ihe ordinance.
Section I of this synopsis outlines siate and local governmental authority for regulating smoking, and also
addresses the legal doctrine of preemption,which raises concerns in some, but not all states. Seclion II outlines
several constitutional legal challenges to smoke-free ordinances that are often threatened, but which lack merit.
Section III examines the legal authority of local regulatory bodies for passing smoke-free ordinances. Lastly, .
section IV uses the example of private clubs to illustrate the need for care when dratting smoke-free ordinances.
Section I — Legal Authority to Pass It states "this Consdtudon, and the ]aws oE the
Smoke-free Ordinances Of1C� the United States wluch shall be made in pursuant
Doctrine of Preemption ��eof shall be the supzeme law oE the land;and
the judges in every stare shall be bound theieby."
I.aws aimed at protecting public health,safery and Essentially, tLis means a hiesazchy of laws exiscs,
welfaze aze tzadirionally considered matters most �9heie,in cettain circumstances,federal law trumps
properlp regulated by s[ate and local governments �PIeempts)state]aw and state law trumps(preempts)
puisuant[o their"police powels." T'he United Sta[es local law
Supreme Court has statcd"the historic police powus Unless the federal or state law in quesrioa
of the srates aze aot to be superseded by a federal act �ontains expmss preemption or expzess anti-
unless that was the cleaz and manifest pucpose oE Key Points • .
Congress"' Therefore,ia the neaz absence of federal ■Secondfia�smoke i�a leodng cause of wrxer
regulation of secondhand smoke, smoke-fcee . and=cordiovascular�disease-ond is linked�to
ocdinances aze mostly atablished at the state and local numerous other adverse heahh eBectss :
lec-eLs of governmeat ■Neither ihe United St6tes Cor�siBirtion:frorstate-
While they deady Eall withia the ambit of public �"��t��ore recognize,o co�stit�tionol 'right to
health and safe law smoke-free ordinances have smoke'that'would limit'the power of fedefal,state
�' �+ or local o�rHrorities to 'regulaFe smobng.�
been and continue to be challenged in courts �yyhen considering a.smoke-free ordirignce;
throughout the nauon. T'he ovuwhdming majoary ,apPropriate procedures,should be followed,
of plaiatiffs aze unsuccessEuL T'hey have the buiden i�xiuding'provi�ng �rotice and,-a for�m for the
of iebutting a stroag presumpaon that the law is p��<<o cnmmeM:
coasdtudonal.` When a plaiatiff is succwsful and the ■Smoke-free brdinances do rwt deprive,resfauram �
law is stzuck down, the mason is usuallp pzeempdon and bar owners,of property rights or equal
or a procedural ecror during passage of the ordinance. Protection urder the low.
The pceempdon doctrine is derived from the � �State preemption of I«ql smoke5free ordirwrxes
Supremacy Clause of the United States Consriruaon. '"O1'.P`�^t PfOblems'in some states.�
,
This synopst5 is D�e01w etlucaibrel P�oM'aM b rot W De construed as e kgal uW�n w es a suMUERe br abtaWng legal ativke from an
attorrrey. Laws�mtl are arta`rt es oi AprO 1�2004.The Toba¢o Control Legal ConsoNUm WovlEes lepal Inbrmatbn antl eEUatim a�art tabacco ard
heatth�dn dom not provida lepal repraserrtation. Readers with Cuestlons ahart ihe appOntbn ot Ure law W spedfic lact.s ara enoo�uaged W wnsW[kgal
counsel lam�ar wqh the taws of tlretr�urlsdictbro.
1 '
Legal Authority to Re9ulate Smoking
pceemptionl � ° ,theceazenopzeciseguidelines places. The state law contained express anti-
in deteimining whethec a]aw is pLeemptive. Each pzeecnpdon language,which cleady pzovides that aties
case must be decided on its own meetss The factocs and towns may cestrict smoking fucther than the
to consider were enumerated by the Unired States statewide standazd.'
SupLeme Court,° and are as follows: Likewise, the Arizona Court of Appeals upheld
the Ciry oE Tucson's smoke-Eree ocdinance ia
1. Is the scheme of the regulation so pervasive restaurants finding it furthers,not frustrates,the state
as to infez that Congress lefr no room foc ]aw on smoldng:10 `Both a dty and a state may legislare
states to supplement id In other words,did oa the same subject when it is of local concecn,"
Congress eEfectively pxeempt the field? according to the Arizona couct. The court reiterated
2. Is the federal interest so dominant that the �'e geneial principal that a local law will not be Found
invalid if it can reasonably be interpteted in a a�annez
fedecal system will be assumed to piedude
enforcement of state laws on the same �at avoids conflict with a state staruce.
Court decisions striking down smoke-free
subject? ordinances aLe also instructive on the issue of
3. Does the state law pzoduce a cesult that preemption. ANewJecseysuperioLCOUttstruckdown
conElicts with the objective of the federal a tegional ordinaace pzohibiting smoking in most
]aa,� indoor public places on the grounds that state law
preempted it" New Jersey has numuous state statutes
Geneially speaking, the same facto=s apply to that address smokingin public placea The court noted
state laws as they affect local govemments' abiliry that the preamble of each such statute "zepeatedly
to pass laws,induding smoke-fxee oLdinances. emphasizes that the purpose of the statutes is to
In upholding a town ordinance prohibiting balance the rights oE smokecs and nonsmokers and
smokiag in town-Gcensed fadlities or Lequiring the that it is not the pubGc poliry of this State ro deny
facilides to construct enclosed,aduit-only azeas Eor anyone the right to smoke." The court also celied on
smoking, the Rhode Islaud Supreme Court found explicit preemption language£eatured in the state law
there was no conflict between the oxdinance and on smoking.'Z The court concluded"the Srate scheme
state law,nor an iadicadon expressed or implied that is so pervasive and compcehensive that it predudes
[he State I.egislature inrended ro occupy the fleld' coexistence oE muniapal regiilatioa."
W6ile the Rhode Island Legislatuce enacted a Recendy,the Supceme Court oE New Hampshue
statewide law cegulating smoking in public places,it stcuck down a muniupal smoke-Eree otdinance on the
allows municipalities to adopt more stringent grounds that the New Hampshue Indooi Smoking
cestricdons on smoking. "No restaurant or bar iu Act preempted the otdinance." The court Eound that
EastGreenwich[orotherRhodeIslandmunicipality] the state law was comprehensive and detailed. The
willviolate rules and tegulauons promulgated by the court tejected arguments that language in the Act
DeparttnentofHealthifitisboundtocomplywith disavowed any intent to preempt local action,
strictex zegulaaons,"accozcling to the Rhode Island intecpreting the alleged aati-pteemption language to
Supceme Court. pecmit additional municipal cegulation oE smolcing
The Supzeme Judicial Court in Massachusetts "only with tespect to fue protection, safety and
reached a similar condusion whrn it held the state sanitation, not with cespect to public health."14 The
law zegulatiag smoking in public places is not in Iowa Supreme Court also struck down a local smoke- '
conElict with a muoicipal boazd oE health's smoke- fiee ordinance in Ames on the ground that state law
free cegulation foi cestaurants and baxs.e Instead, pceempts those ordinance provisions that pcohibit
the court stated, the boazd of health's regulatioa designated smolang azeas15
"Eucthers, rathec than Erustcates" the iarent oE These cases highlight the importance of anti-
Massachusetts statewide law on smoking in public pieempdon language. Anyproposed statewide smoke-
2
Legal Authority to Regulafe Smokirg
freeordinaace,whethustrongorweak,shouldindude The fact that smokers are not a "suspec["
speafic anti-pzeempaon language. This will enable classificaaon under the]aw is the second reason smoke-
local goveraments to euact local laws that aze stmagez Eree ordinances do not violate the Equal Protection
than stare]aw without feaz oE a legal challenge on the Clause A law can treat one group of iadividuats or
basis of preempdon. rntities diEferendy than othen as long as there is a
raaonal basis for the distiaction and the group af£ected
Section II —Constitutionol Challenges �s aot part oE a suspect class Classificarions that azc
coasideced suspect aze those types of classifications
Equal Protection Arguments that "share a common element—an immutable
Equal protection challenges to smoke-free �azacterisac determined solely by the accident oE
ordinances have bem unsuccessfuL The Fifrh aud birth,"'B such u race,naaonal oIlgill,sexual orientarion
Fourteenth Amendments to the United States �_$�dec According to the court ia Fagan�AaYlm�
Constitutioa guarantee all petsons equzl prorecaon ��e classificadoa is aot suspect oc dces aot involve
oE the law Equal protec[ion c6allenges to smoke- a fundamental right, as is the case with smoke�s, a
free ordiaances Eall into tmo categories: the equal presumption of consrirutionality attaches to the
protection of smokers and equal pcotection of �ssificaaonbeinganalyzed,andthechallengingpacty
business ownus Both azgumrncs aze based on the must prove that the dassification is9aot related to a
ill-conceived premise that smoke-fzee ordinances �egitimate goveinment purpose. Couzts have
somehow"disc�m;.,ate"against smokers or business �onsistentlyhdd thatprotectingpeople fromeaposure
o���, to secondhand smoke is a valid use of the State's poGce
Smokecs have challenged smoke-&ee ordiaances po�'er, theceby furthering a legitimate government
on the basis that they are uafauly subordinated to p�osem
nonsmokers The azgument is articulated in the New In addidon to equal pcotecdoa challenges by
Yoik case Fag'an u Axelmd'6 In this case,the plaintiff smokers,restaucant and baz ownas have also brought
azgued the New York C1ean IndooL Air Act"n,.railc equal protecaon challenges,which have failed. Some
access by the subordivate class(smokecs) [o places of restaurant and baz owners have azgued smoke-frec
public accommodarioa by ieasons of their peisooal ozdinances uafaixly discrin+i.,a���st certain types
habits," "Eocces the subordinate class to wozk in a oE establishmenu whrn the regulaaons allow smolang
smoke-free envizonmrnt" and "dis�*+**�i.,a�� �ainst � �me establishments and not in others In JuJtiana
members of the subordinate class on the basis oE a u i\7iagam CounJy Dcpastment oj Healtb, the plaintiffs
physiological impaizmrnt (nicotine addiction)." The �ed a New Yodc counry law that prokvbirrd smolQng
court held that these claims were without merit for � some, but not all, public places was azbitrary and
two reasons. discriminatory, and thus in violation o£ the Equal
Fust, the dassificarion of smokers does aot Pro�ecuoo ClauseZ' T'he plaintiffs aLso azgued"if the
infringe on a fundamental righ[. In fact,no murt hu B���f the regulations is to prorect the public health,
determiaed that smoking is a fundamental, it is irrational to restrict smoking in some places but
consarutionally protected right "I'he court in Fagan u not othecs" The U.S.district court disagreed with the
Axelmd staced "there is no more a fundameatal right P��fs and stated"if a dassificanon neither burdrns
to smoke cigarettu thaa there is ro shoot-up or snort a fundamrntal right noc targets a suspect dass, thrn
heroin oz cocaiae." A right is Cundamental "if it is �e classification will be upheld so long as it bears a
deeply rooud in our naaon's history and tradition or �aoaal relaaon to some legitimate end." In Tuuon u
so ingcained ia concept of ordeced liberty that neithei Gre<affi, the Arizona Court of Appeals dismissed a
jusace noc Gberty would cvst if i[wece impaired"" 5�]aI�halle°$e,stating"Itis no requiremeat of equal
Foc example, freedom of the pcess and the right to protecaon that all evils of the same geaus be eradicated
vote am fundamental cigh[s under the U.S. olnoneatall."� Communiriesmayaddressthepublic
Consritution. Smolang u aoc ���� pioblem of second6aad smoke incremmtally
3
Legal Authority to Regulate Smoking
by prohibiting smoking in some but not all public of public health, safety oz welfaze." Even if theze
places, cegardless oE the pcobability that the were evidence of a dispute as to the hazmfiil effects
government will ever address the rest oF the pzoblem. of cigar smoke, this dispuce cannot rebut the
presumpdon that the ocdinance is raaonaL "Moreovec,
Substontive Due Process Argument to succeed on a substantive due process c6allenge,a
Substantive due process challenges to smoke-Eree plaindff must do more than show that the legislature's
ordinances have been unsuccessfuL The Due Pcocess rtated assumpdons aze uradonal — he must disciedit
Clause oE the U.S. Consritution pcovides that the any conceivable basis which could be advanced to
governmen[maynotdepriveoneofaconstitutionally support the challenged pcovision, zegardless of
protecred liberty interest or pcoperty interest without whethec that basis has a foundation in the record,"
due process oE law Substantive due process pcotects according to the court.
against govemmental interference with liberty intexests,
also ceEetzed to as fundamental rights. These Procedural Due Process Argument
fundamental rights,in addidon to those contained in As stated above, the Due Ptocess Clause oE the
the Bill of Rights,have been held to indude the right U.S. Constitution pcovides that the govemment may
to mazry, to pcocceatq to educate and raise childcen, not deprive one of a consututionally protected liberty
to marital privacy, to travel and to vote Smoking is oc pcopetty intezest without due process of law
not a fundamrntal right Proceducal due pzocess safeguazds aze intended to
Courts aie extLemely seluctant to expand protect individuals not from the deprivarion icself,but
substantive due pcocess pLOtectioa to other"asserted &om inadequate pcocedutal safeguazds prior to the
rights oz liberty interesu."n Due pLOcess ptotection deprivation. Procedural due pcocess is mean[to ensure
is affo:ded to those rights and liberties"deeply rooted that the government utilizes a Eaic and open process
in this Nation's history and ttadition,"so much so that in enacting and enfotcing laws
"neithez Gberty oz jusrice would euist iE they were Procedural due ptocess is a flexible concept
sacrificed.s2d "The Fourteenth Amendment foLbids vazying with the pazticular situation,with the ultimate
the goveLnment to infringe . . . fundamental liberty goal oE ensucing a law is nnplemented fairly. "Aa
inrexests at all, no matter what pzocess is provided, essential principle of due process is that a deprivauon
unless the infringement is nazcowly tailoied to serve a of life,libert};oz ptoperty be preceded by nodce and
compelling state intuest"'� opportunity foc a hearing appropriate to the namce
Sina the act oE smoking is not a consatudonally of the case."n To consritute a procedural due process
protected fundaznental right ot liberty intuest,any]aw claicn, one must establish that he oz she has been
prolubiting the activiry need only be radonally related deprived oE a liberty oz property intuest� .Uso,state
to a legitimate govemmeat interest In Beatre v. City of aud local]aws and pcoceduxes usually mandate cectain
Nem York, the plainrifE alleged a law that restricted notice and hean� cequirements for the passage of
smoking of cigars violated his substantive due pxocess any state or local law Communiries interested in
rights.'� He claimed thece was iasufficient scientific prohibiting smoking should take caze to provide noace
evidence that secondhand cigar smoke was hazmful and allow foz public comment,in accordance with thei�
to nonsmokers and,thereEoie,the law had no rational state and local requicements.
telationship to a legitimate government interest. The Supzeme Court of Appeals oE West Vicginia
The United States Couct of Appeals for the held that an adininistrative zegulation pxolubiting
Second Circuit held that in the azea oE"social welEaze, smoking ia the prison system violated piocedural due
. . . being the category undes which this case falls, as process by not aEfocding suEficirnt pcocedural
distinct &om those freedoms guazanteed citizens by safeguards as required by the State Administcative
the Bill of Rights . . .it is up to those who attack the Pxoceduces Act�' Similarly, in 2003, a smoke-fcee
law to demonsttate that there is no rational connecdon iegulation in Abiagton,Massachusetts was challenged
between the challeaged ordinance and the promodon on rhe gtounds that the public was not norified about
4
. Legal Authority to Regulate Smokirg
heazings on the cegulaaoo. Although there is no prohibitioodidnotiepiesentapazvalzegulatorytalflag.
Massachusetts starutory cequirement that a public First, in examining the chazacter of the municipal .
heazing be held prioz ro passage of a smoke-Ezee govecoment's acdoo, the court stared that "[t]his is
zegulation,almostallboazdsofhealthinMacsachusetts not, like aearly all takings cases, . . . a land-use
provide notice and a public hearinpy In an effort ro reguladon;it is,rather,a response to a serious public
a�-oid this challenge, the boazd simply rescinded the health problem."36 While the court acknowledged
regnladon it passed,6dd aaothu public hearing a&er evidence that some oEthe businesses acperienced loss
propeily posting nodce oE same, and passed the oE revenue,"that fact alone was insuffident to render
regularion once again.'0 the govemmeat's acaon a takiag,especially when the
court considered the distinct investmenabacked
The Takings Argument expectadons of businesses dependent oa smoking.'�
The Takings Clause of the U.S. Consdtution Smoking has been a public health issue fox neacly
provides [ha[ no pavate property may be taken for fifty years,in light of growing concems acpressed by
public use without just compensadoa" Owners of public health experts and scieatists, "not just to
restaurann and bars in Toledo, Ohio, challenged the smokers themselves from smoking, but also to
coasatutionality of a ciry ozdinance that restricted aonsmokeis exposed to secondhaad smoke."" The
smoking in public places on•the basis that the court noted that the uend across the country was to
ordinance amounred to a regulatory taking cvithout lesxn the public's exposuce ro secondhand smoke.
just compensatioa.32 Theiz daim was based upon an `Businesses dependeat in whole or part on patronage
allegation d�at,as a result of the smolflng prohibirion, by smokecs,and those who iavest in such businuses
their busiaesses had no economically viable use and seek to make their livelihoods from them, have
The plainrifEs did not allege a physical taking,buc - long been on oodce that the value of theu investments,
rather a partial iegulatory taldng. Regulatory takings aod impliddy,the abiliry to pcofit from su�businesses,
fall into two cacegories First,if the taking"allows[he may be affected advecsdy by contiauiag govemmeata!
pcoperty ownez `no productive or economically efforts [o reduce exposure ro secondhand smoke."i0
beneficial use oE laud'(sometimes called a categorical, The restaurant and baz busiaess is zegulated from
or complete takin�;' the owner is enti[led to door to dumpstec "Those who do busiaess in [a)
compeasation." Secoad, a paztial regulatory taking regulared field caanot object if the legislative scheme
may occur if a regiilaaon prevrnu a property owner is buttressed by subsequeat ameadments ro achieve
from some economic use of his properry,depending the legisla[ive end.""
on the state interesc at stake and the levd oE
govemmenral inrcusion." Privacy Argument
Wherhez a pazrial zegulatory taking occurs is Smoke-free ordinances do not infringe upoa
de[ecmined on a case-by-case basis. Fac[ocs a court privary rights. "Ihe U.S.Supreme Court has hdd that
coasidexs iadude: "one upect of the Iberty protected by the Due Process
Clause of the Fourtewth Amendment is a right of
1. The chazaaa of governmental acaon; personal privacy, or a guarenree oE certain azeas or
zones of privacy."42 State constitudons and laws aLso
2. The economic impact of the action on the
P1OP�9°WII��d establish cettain privacy rights This constitutionally
protected right of prn•ary extends only to fundamental
3. The extent to which the acdon interferes with personal in[erests, such as mazriage, ptocreation,
the claimant's "distinct investmeaabacked contracepdon,fanvly reladoaships and educating and
expectations>,�s ieariag chilcken a'
Secondhand smoke laws do not violate any
In the Toledo case, a Eederal dis[rict court consrirudonallyprotecteddghtofprivary.Asdiscussed
ezamiued these facrors and 6eld that the smoking above, t6ere is no fundamental right to smok� In
5
Legal Authority to Regulate Smoking
addidon, even "if petitionezs in fact have a genecal and the "petitionecs engaged in policy-making
`right of privary'to smoke,[the Clean Indoor Aic Act] req»'�a balancing of social,polidcal,economic,and
merely requues them to exercise it outdoozs oz in privacy concems" that are legislative in nature. Io
private."" These laws do not prohibit smokers from suiking down the New Yotk Public Health
smoking,only ftom smoking in areas that will expose Comnilssion smoke-free tegulation on similac grounds,
others to secondhand smoke. the New Yock Court of Appeals held that"a number
of coalescing circumstances that are pcesent iu this
Section III — Challenges t0 Legal case peisuade us that the difficult-to-define line
Authority of Regulatory Agencies between administsative rulemaking and legislative
policy-making has been transgxessed."°�
Numesous legal challenges have alleged that local In Massachusetts, the Supzeme Judicial Court
regulatory bodies have no authority to regulate upheld the authority of munidpal boazds of health to
smoking.Many communiries pass smoking cegulations Pass smoke-free reguladons Boazds of health in
ttuough such local cegulatozy bodies. Foi example, Massachusetts act under severel statutory delegadons
the vast majoriry of local smoking regulations in of authority, but primarily rely on one particululy
Massachusetts aze passed tFuough municipal boazds broad delegation foi passing smoke-free cegulations.
of health. Uulikemunici alandcoun ovemments, T�s broad delegadon of authoriry sta[es "boazds of
which ace political subdivisions of a state, local healthmaymakereasouablehealthieguladons:'48 "Ihe
regulatory bodies derive theu authonry fiom state couzt Eound this language indicated that the
stamte. They function in part as quasi-state agents, M�ssachusetts Legislatuce made the poliry decision
although theu membership,operaaon,and rulemaking �at public health matters affecting local ades aad
occur at the localleveL towns could be the subject of reasoaable reguladons
The primary azgument used by smoko-fzee developed at the local leveL Addiuonally, according
regulation opponents is that state]aw gxants the local to the court, the Massachusetts Legislature has
regularory agencies "cule making" authoriry, but Provided guidance foc implementing such authoriry
withholds"substantive authority�'to enact xegulations by requiring that municipal regulation oE local health
not explicidy contemplated within the statutory gtant. matters must addces a the"health"of the communiry
Not sucprisingly,the bceadth of authority foL each local a°d be"ieasonable."
regulatory agenry varies&om state to state. If a state
legislanue only authorizes"nile making"authoriry ro Section IV — Challenges to
its local regulatocy agendes, tobacco control eEforts Regulating Smoking in Private Clubs
can still move fonvazd in that state thxough local
legislative bodies, such as by city ordinance or town 1-OC� smoke-free otdinances sometimes exempt
bylaw "����y prn'ate clubs" that sell food and alcohoL
In determining whethes a cegulatocy agenry has The theory behind the exemption is that the goal of
the authority to enact substantive]aws,courts examine �e ordinance is to protect the genezal public &om
the statutory language that grants the authority, the �Posure to secondhand smo�e and a p=ivate club is
legislative history sueiounding the eaactment of the not open to the genetal public Prrvate clubs that aze
statute, and the overall statutory scheme. The Ohio �empted aze usually nonprofit,private entiaes owned
Supceme Court conducted this type of analysis and by their membership. Because these clubs are
found that Ohio boazds oE health do not have the nonprofit,not open to the public,and distinctly private,
they wjoy certain tax brneflts,and aze noc subject to
substantive legal authority to pcolubit smoking in all 52
public places15 Accotding to the court,Ohio law dces state action foc discriaunatory acu Whethec a club
not gcant boards of health "unfettered authority [o � ��cdy private is a quesdon of fact. A Court of
promulgare any health cegulauon deemed necessaty," Appeals for New York set focth Fve factocs to
considec:s'
6
Legal AWhoriiy fo Regulate Smoking
i�fassachusetts taed unsuccessfully to stop the tread
1. Is membecship determiaed by subjecm•e,not of induding pm are dubs in the regulaaons The I.oyal
objective factozs? Ordec of Moose Lodge alleged the Town of Yazmouth
Boazd of Health's smoke-free ordinance violated its
2. Is use of the club's faciliries limited to membus
right to privary and its Fust Amendment right to
and guests? associate.55 While the court did not address either
3. Is the dub contxolled by its membenhip? alleged constitutional violaaon,� it is deaz that the
4. Is it nonpzofi[, and operated solely Eor the �adon does not pievrnt membezs from assembling
benefit of its membus? or assodadng.As aoted previously,smoldng does not
rise to the level of a fundamental right accorded
5. Is its publiary directed exdusiveky and only constituaonal prorection. In addirion,because these
to members for theu informaaon and dubs aze aot opeiating as distincdy puvate clubs,
���e? smoke-fzee iegulations do not violate any
consamtionally pcotected aghrs of theii membCLS
Other states also coosidec the size of the The U.S. Supreme Court has afEorded
membership of the dub, the degree to which non- consutuuoaal protecdon to &eedom of associadon
members use [he dub's facilides, and the fiequwcy in two wayss' First, "the Court has held that the
with w6ich the pcemises aze rented to non-members.�` Consatuaon protects agaiost uojusrified govunment
Ohen, w6en a city or town is consideung the interfecence wi[h an individual's choice to eater into '
adopdon of a smoke-free ordiaancq cestauraat and and maintain certai❑ iatimate oc private
baz owness complain that if these dubs are exempted retaaonships"� T6e types of celaaonships afforded
from the ordinance, cestaucant and baz patrons will this pzorection include "mazriage . . . the begetting
simply &equeat these dubs in ozder to smoke. IE a andbeaiingof children,...cl�ildreaangaadeducation,
dub is truly distinctly private, this Elight should not . . . and whabitaaon with reladves."59 The F'ust
occur. Howevey maoy of these pucportedly distiacdy Amendmeat protects "those zelationships, induding
private dubs do not operam as distinctly private,but family relationships, that presuppose `deep
rathez ope�ate as public bats. T'hey fredy advertise attachments aad commitments to the necessarily few
cazd game nights aad bingo nigha that aze "open to other individuaLs with whom one shazes not only a
the public" Aayoae can walk in the door and order a special community of though[s, eaperiences, and
clriak Theiefore,the notion that patrons will simply beliefs but also disancdy personal aspecu of oae's
walk across the street to these clubs to smoke if lifa"'°0
smoking is pzohibited in restauraats aad bazs can prove In determining whether a pazticulaz relationship
to be true is sufficiendy intimare to cequire constimtional
As a result,aaes and towns in Massachusetts aze protection,the Court considers"factors such as size,
bea nning to indude privare dubs in local smoke-&ee puipose, sdectivity,and whether othess aze exduded
ocdinances on the basis that these private dubs aze from cridcal aspects of the zeladoaship."61 T'he
wockplaces and protecting the health of wockers is a relarionship among membus oE the types of private
legitimate public health goal, well within the police dubs described above is aot usually the kind of
powers of local govemmrnt That an establishmrnt intimate relationship affocded consti[utional
is private dces not somehow cwove it from muniapal protection. As discussed above,many of these clubs
ceguladon. These clubs hold club liquor licenses are not bona fide pavate dubs buc ceally public bazs
granted by municipal licensing authoriaes T'6ey hold "masquexading as ...private club[s]"�and,thus have
occupanry permits gcanted by municipal building no constirutioaally protected right of intimate
deparcmenu and food service permits granted by associadon.�' In a mceat Ohio case, for example, a
munidpal boazds oE health. group oE baz and restauran[ownets set up a aon-pcofi[
Opponents of smoke-fcee cegulations in cozporation,"Tavernsfo:Tots,"wherememberscould
7
I
Legal Authority to Regulate$moking
pucchase one-dollaz"membecships"entiding them to About the Author
smoke at the"dub's" "private social functions."�' A
Eederal district court gcaated the city of Toledo a Checyl Sbazca is Senioc Staff Attorney and
preliminary injuncdon ordering the "club" to stop D'uector oE the Tobacw Conuol Program fot the
allowing smoking a[.i[s "events." T'he court rejected Massachusetts Associatioa of Health Boazds. The
the coLpozadon's claim that it was a charity, stating �.yews expressed hete aze those of the authoi and aze
that "the ocganizadon exists not primatily to raise not meant to represent the views of the Massachusetts
funds for needy childten, but to evade the stricnues Associadon oE Health Boazds.
and consequences oE the anri-smoking osdinance."bs
The second type of Ereedom oE associadon to
which the Court has afforded consamaoaal protection
is even less applicable to these cases. This is the
freedom of expcessive associadon 66 Pcolubiting
smoking in private clubs does not afEect "in a
significant way the gxoup's ability ro advocate public
or private viewpoints."61 Moieover, the piohibidon
does not psevent people &om associatin� it simply
pzevrnts associates &om smoking.
Conclusion
The vast majority of laws that piotect the public
&om exposuce to second6and smoke have been upheld
because they pcomote the legitimate govemment
interest of pzotecting rhe health and safery of its
arizens� These laws aze well within the police powen
oE state and local govecaments.
Endnotes
' National Cancer Institu�e, Healfh ENec[s o�Exposure to Environmenta/Tobacco Smoke: The Report ol Ihe Calilornia
Environmenta/Protection Agency,Smoking and Tobacco Control Monograph 10(Aug.1999).
' American Cancer Sociery, The Facts about Secondhand Smoke(2001), at http://www.cancer.org;Stanton A.Glantz&
William W.Parmley, Passive Smoking and Heart Disease:Mechanisms and Risk,273(13)JAMA 1047-1053(1995).
' Rice v Santa Fe Elevator Corp.,331 U.S.218(7947).
' Ciry ol Tucson v. Grezalli,23 P.3d 675(Ariz.Ct.App.2001).
' City ol Burbank v. Lockheed Air Terminal, Inc.,411 U.S.624(1973).
° Rice,331 U.S.at 230.
' Amico's, Inc. v. Mattos,2001 WL 1685597(R.I.Super.2001).
° Tn-Nel Mgmt. v. Bd. o/Health ol Barnstable, 741 N.E2d 37(Mass.2001).
° The anti-preemption language states"nothing in this ect shail be construed to permit smoking in any area in which
smoking is or may hereafler be prohibited by law including,without limiting the generality of ihe foregoing,any other
provision of law or ordinance or any fire, health,or safety regulation'
10 Ciry o/Tucson,23 P.3d at 680.
" LDM, Inc. v Princeton Regional Health Comm'n,764 A.2d 507(N.J.Super.Ct.Law Div.2000).
�� The language states"The provisions of this act shall supersede eny other statute, municipal ordinance,and rule or
regulation adopted pursuant ta law[s]concerning smoking in restaurants....'
" JTR Co/ebrook v Town ol Co/ebrook,829 A2d 1089(N.H.2003).
" The preemption language states"Nothing in this subdivision shall be construed to permit smoking where smoking is
prohibited by any other provision of law or rule relative to fire protection, safety and sanitatian.'
8
Legal Avlhority}o Regula}e Smoking
" Cyclone Truck Stop v. Ciry o/Ames,661 N.W.2d 150(lowa 2003).
" 550 N.Y.S2d 552(N.Y.Sup.Ct.1990).
" See Washington v. Glucksberg, 521 U.S.702, 721 (1997).
1° Fagan,550 N.Y.S.2d at 560. -
10 The CouA in Fagan v.Axelrod also noted that,contrary to their assertions, laws restricting or prohibiting smoking do not
restria smokers'access to public places,only their abilities to smoke in those places.
2D Id.
^ Jus[iana v. Niagara County Dept. ol Health,45 F.Supp.2d 236(W.D.N.Y. 1999).
a Tucson,23 P.3d at 682(quoting Rossie v. Sfate,N.W2d 801, 807�s.Ct.App. 1986)). �
" Washington,521 U.S.at 720.
" Id.at 721.
xs Id.
$1 Beatie v. Ciry o7 New YoAc, 123 F.3d 707(2d Cir.1997).
" Cleveland Bd. 07 Edut. v. Loudermill,�470 U.S.532, 542(1985).
2° R.J. Reynolds Tobacco Co. v Bonta, 772 F.Supp2d 1085(E.D.Cal.2003).
29.State v Parsons,483 S.E.2d 1 (W.Va. 1996). -
i0 In a similar decision,a Maryland appeals court found a smoke-free regulation invalid because the Montgomery County
Council did not have sole authority to act as a board of heatth in passing the law. Montgomery Counry Council v Anchor
Inn,822 A2d 429(Md.2003).
" U.S.Cor+sr.amend.V. .
� D.A.B.E., Inc. v. Ciry ol Toledo,292 F.Supp2d 968 (N.D.Ohio 2003).
" Id.at 971.
" Id.
u Waste Mgmt., Inc. v Metropolitan Gov't oJ Nashville, 130 F.3d 731,737(6a Cir.1997).
� D.A.B.E., Inc., 292 F.Supp2d al 972.
" Many economic studies have examined rastaurant sales tax revenues and found no loss of revenue as a result of
smoking prohibitions. See William J.Bartosch&Gregory C.Pope, The Economic ENect o7 Smoke-Free Restaurant
Policies on Restaurant Business in Massachusetts, 5(1)J.Pua.HEUtN McwT.Pw�cncE 53(1999);see also Stanton A.
Glantz 8 Mnemarie ChaAesworth, Tourism and Hofel Revenues Before and Aker Passage o7 Smoke-Free Restaurant
Ordinances,281(20)JAMA 1911 (1999).
'° In Arizona,tor example,a federal district court dismissed a lawsuit that elaimed Tempe's anti-smoking ordinance is an
iliegal taking of proDerry,stating'Plaintiff cannot show that an ordinance that merely 6ans smolting strips the establish-
ment of all economically viaWe uses' Clicks Tempe, Inc. v. Ciry ol Tempe, No.CV 02•2000-PHX•ROS(D.Ariz.2003).See
also Helena Partnership v. City o7 Helena,No.2002320(Mont.1si Dist.Ct.2002),where restaurant owners in Helena,
Montana, sued the ciry allaging that a secondhand smoke ordinance resutted in the government's unconstitutional taking
of their estadishments without just compensation. The city court judge ruled the ordinance unconstitutional because it
did not allow violators to have a jury irial;the city appealed that ruling, bul the appeal is on hold in district court until the
state supreme court resolves a related lawsuit.
'° D.A.B.E., Inc., 292 F.Supp2d at 972.
10 Id.In a pending Kentucky rase,for example,the state supreme court is considering whether state law preempts a local
ordinance that prohibits smoldng in public places,including bars and restaurants,and whether the ordinance infringes on
the properry rights of business owners. Lexington-Fayette Counry Food& Bev Assoc. v. Lexington-Fayette Urban Gowt,
2003-SC•978, 2003-SC-990.
" Id., quoting lrom FHA v DaAinglon, Inc.,358 U.S.84,97 (7958).
`� Carey v. Population Services InYI,437 U.S.678,684(7977).
" See id.at 684-85.
" Fagan,550 N.Y.S.2d a�559.
� D.A.B.E., Inc. v. Toledo-Lucas Counry Bd. ol Health, 773 N.E.2d 536(Ohio 2002).
i1 Boreali v Axelrod,517 N.E2d 1350(N.Y. 198n.
" Tri-Nel Mgmf.,741 N.E2d at 46.
i° Mass.Gen.Laws ch. 111, §31.
`9 Importantly,the Massachusetts Supreme Judicial Court also held that the broad delegation of aulhority used to pass
smoke-tree regulations does not violate separation of legislative, executive, and judicial powers in Massachusetts. The
Massachuseris Constitution and that of other sWtes require that legislative delegations of authority must be accompanied
by safeguards and standards for using such authority. This requirement is intended to limit Legislatures from delegating
their powers to other bmnches of the government. Courts in Massachusetts test whether a delegation is praper by
considering three faclors:'(1)Did tha Legislature delegate the making of fundamental policy decisions, rether than just
the implementation of legislativaly determined policy;(2)does the act provide adequate direction for implementation....
(3)does the act provide safeguards such that abuses oi discretion can be controlled7' Tri-Nel Mgmt., 741 N.E2d at 44.
9
Legal Authoriry to Regulafe Smoking
Couris in other states apply similar factors.See,tor example, LDM, Inc., 764 A.2d at 507,where a New Jersey superior
court held that a regional health commission ordinance was preempted by a statute exempting bars f�om smoking
regulations. � � �
50 If, however,the goal of the regulatian is to protect all workers from exposure to secondhand smoke,then private clubs
would be included because these clubs have workers that pertorm services for tha club, such as bartenders and
custodians.
61 Loyal Order ol Moose v. Bd. ol Health o�Yarmouth,790 N.E2d 203(Mass.2003).
� Ci[izens Council on Human Relations¢ BuNalo Yacht CIu6,438 E Supp.316(D.C.N.Y.1977).
" New York State CIu6 Ass'n. v. City ol New York,505 N.E2d 915,97 9 (N,Y.1987). �
�' See, e.g., 204 Code of Mass.Reg. 10.02.
' � Loyal Order o�Moose, 790 N.E2d at 206.
6° The court held that the regulation did not apply to private clubs because they were not 9ood service establishments"as
defined by the regulation and the regulation only prohibited smoking in 9ood service establishments' °Food service
establishments'were de(ined as establishments'open to the public' Id.at 205.
" Bd. o/Directors ot Rotary InYI e Rotary Club of Duarte,481 U.S.537(1987).
b1 Id.at 544. �
60 Id.at 545.
°0 Id.
°' Id.at 546.
°' Moose Lodge No. 107 v. Irvis,407 U.S.163, 177(1972).
" Assuming ihat a private club meets the strict criteria of a distindly private club and its members have a constitutionally
protec[ed right of intimate essociation,prohibiting smoking would still be permissible on the ground that it is a valid
exercise of police powers and an exlension of the right of municipalities to license and regulate the consumption of liquor
in private clubs. See Moore v. Ciry ol Tulsa, 561 P2d 961 (Okla. 1977). '
°' Taverns lor Tots, Inc. v. City ol Ta/edo,2004 WL 424009(N.D.Ohio).
ss Id.
11 Bd. oi Directors of Rotary InYI,481 U.S.at 549. �
°' Boy Scouts olAmerica v. Da/e, 530 U.S.640(2000).
° A1 the time of publication,severel cases chaltenging legal authority to regulate smoking were pending throughout the
couniry. In Washington,the Tacoma-Pierce Counry Board of Health and Health Department is appealing a Superior
Court order invalidating a resolution that prohibits smoking in all indoor public places and places of employment in Pierce
County(Entertainment Industry Coalifion v. Tacoma-Pierce County Bd. of Health, No.31396-1-17 (2004)). In Ohio, a
district court's decision not to enjoin Toledo trom enforcing its Clean Indoor Air Ordinance of 2003 is on appeal to the 6th
Circuit(D.A.B.E., Inc. v. Ciry ol Toledo, 2004 WL 287475(N.D.Ohio)). In Colorado,the city of Greeley is detending its
new anti-smoking ordinance irom a lawsuit by Greeley Club Venture, Ltd.that elaims the ordinance is unconstitutional
and based on bad science. In New York,a tederal district court denied a temporary injunction in a still-pending case
seeking to block New York's new state statute regulating smoking (Empire State Restauranf& Tavern Assoc. v New York,
289 F.Supp2d 252 (N.D.N.Y.2003)). In Arkansas,a special election in February 2004,upheld a Fayetteville ordinance
that prohibits smoking in most public venues and workplaces. '
10
About the Tobacco Control Legal Consortium
The Tobacco Contzol I.egal Consortium is a aarioaal network of
legal pcogzams supporting tobacco control policy change by giving
advocates bettei access to legal expertise. The Consortium's
coordinating office,located at William Mitchell College of Iaw in St
Paul, Minnesota, fields requests for legal technical assistaoce aod
coordinates the delivery oE servica by the collaboratiag legal resource
centeza I.egal technical assistance iacludes help with legislative
drafting; legal research, analysis and strategy; tiaining and
presentaaons; prepara[ion of Eriend-of-[he-coutt legal baefs; aad
litigation support. Drawiag on the eapertise of irs collaboraring legal
crnters, the Consortium wozks to assist communiaes with urgent
legal needs and to increase the legal resources available ro the tobacco
control movemrnt
Pceparadon of this synopsis was supported by the Tobacco Technical Assistance Consorti„m,Atlanta, Geoigia,
undez Grant Na 416290 from the Robert Wood Johnson Fouadadon,Priaceton,New Jersey.
� � �� � � p�a�lic heal�h lau� � polic�
� B� #ec#�nical assistanc� le al cer�ger
�
'�'he�-e �� 1�10 �o���taatio��fl �ght to ��olke
February 2004
Revised April 2005
I. INTRODUCTION �
Laws that limit how and where people may smoke should survive a legal challenge claiming that
smoking is protected by the state or federal constitution. Smoking is not mentioned an}nvhere in
either constitution. Nevertheless; some people may claim that there is a fundamental "rigbt to
smoke."� These claims are usually made in one of t��o ways: (1) that the fundamental right to
privacy in the state or federal constitution includes the right to smoke, or(2) that clauses in the
state and federal constitutions granting "equa] protection" provide special protection for smokers.
Neither of these claims has any legal basis. Therefore, a state or local law limiting smoking
usually will bejudged only on whether the law is ratiooal, or eveo plausibly justified, rather than
the higher legal standard applied to laws that limit special constitutionally protected rights.
II. THERE IS NO FUNDAMENTAL RIGHT TO SMOKE
The areument that someone has a fundamental right to smoke fails because only certain rights
are protected by the constitution as fundamental; and smoking is not one of them. The U.S.
Supreme Court has held that "only personal rights that can be deemed `fundamental or `implicit
in the concept of ordered liberty' are included in the guarantee of personal liberty."Z These rights
are related to an individual's bodily privacy and autonomy within the home.
Propooeuts of smokers' rights often daim that smoking falls wit6in the fundamental right to
privacy, by arguiog that the act of smoki�g is an individual and private act that govemment
cannot invade. Courts consistently reject this argument. The privacy interest protected by the
U.S. Coostitution includes only marriage, contraceptiou, family relationships, and the rearin�and
educating of childreo 3 Very few private acts by individuals qualify as fundamental privacy
interests, and smokiog is not one of them.4
Developed by the Technical Assistance Legal Center(TALC),a project of Public Health Law&,Policy(P}{LP).'ILis material
was made possible by(unds received from the Califomia Depanment of Public Health,under contract 904-35336.
PHLP is a nonprofit organization that provides legal information on mavers relating to public health.7Le legal infortnation
provided in Ihis documenl dces not constitute legal advice or legal mpresentation.For legal advice,readers should rnnsult a
Inwyer in their awte.
www.phlpnet.org • talc@phlpnet.org • (510) 302-3380
Example:A firefighrer c�ainee challenged a ciry fire deparcment requirement that trainees must
eefcain from cigarette smol:ing at all times,by ar�uin�tha["akhough there is no specific
constitutional �ight to smoke, [there is an) implicit . . . right of libextp or privacy in the conduct
of�] private]ife, a right[o be lec alone,which includes the right to smoke."�The couct,
howevec,disagreed and disdnguished smoking from the recognized fundamental pcivacy
righes�The court wenc on ro find that the city xegulation met the fairly low standard for
regulating non-fundamental righcs because thexe was a perfecdy eadonal reason for nc�
re ulation,namely the need foc a healthv firefi htin focce.
III. SMOKERS ARE NOT A PROTECTED GROUP OF PERSONS
The second common constitutional claim made by proponents of smokers' rights is that laws
regulating smoking discriminate against smokers as a particular group and thus violate the equa]
protection clause of the U.S. or the California constitutions. No court has been persuaded by
these claims.
The equal �rotection clauses of the United States and California constitutions, similar in scope
and effect, guarantee that the government will not treat similar groups of pcople differently
without a good reason.g Certain groups of people—such as groups based on race, national origin
and gender—receive greater protection against discriminatory government acts under the U.S.
and California constitutions than do other groups of people.9 Smokers have never been identified
as one of these protected groups.10 Generally, the Supreme Court requires a protected group to
have "an immutable characteristic determined solely by the accident of birth."�� Smoking is not
an "immutable characteristic" because people are not born as smokers and smoking is a behavior
that people can stop. Because smokers are not a protected grou�, laws limiting smoking must
only be rationally related to a legitimate government purpose.�
Example: Ne�s�1'ork Ciq�and New York State enacted laws pcoliibiting smoking in mosi
indoor places m ocdez to prorett citizens from the�vell-documented harmful effects of
secondhand smoke. Tlie challenger argucd that the smoking bans violated the Isqual Protecdon
Clause because thep cast smokers as "social lepers bp,in effect,classifying smokers as second
dass citizens."13 The cour[responded that"the mere Eact that tUe smoking bans single out and
place burdens on smokers as a group does not,b}'��self,offend rhe 13yual Protection Clause
because chere is no . . . basis upon�vhich to grant smokers the status of a protected dass."14
The court pcoceeded to uphold the smoking bans since they�vere rationally related to the
le itimate overnment ur ose of �xomoun the �uULc health.
The equal protection ciause not only protects certain groups of people, the clause also prohibits
discrimination against certain fundamental "interests" that inherently require cqual treatment.
Tl�e fundamental interests protected by the equal protection clause include the right to vote, the
right to be a political candidate, the right to have access to the courts for certain kinds of
proceedings, and the right to migrate interstate.�s Smoking is not one oY these recognized rights.
If a government classification affects an individual right that is not constilutionally protected, the
classification will be upheld if there is any reasonably conceivable set of facts that could provide
a rational basis for it.�b So long as secondhand smoke regulations are enacted to further the
government goal of protecting the public's health from the dangers of tobacco smoke, the
regulation should withstand judicial scrutiny if challenged.��
2
IV. CONCLUSION
There is no constitutional right to smoke. Claims to the contrary have no legal basis. The U.S.
and Califomia constitutions guarantee certain fundamental rights and protect certain classes of
persons from ail but the most compelling government regulation. However, no court has ever
recognized smokine as a protected fundamental rieht nor has any court ever found smokers to be
a protected class. To the contrary, every court that has considered the issue has declared that no
fundamental "right to smoke" exists. So lone as a smoking regulation is rationally related to a
legitimate �ovemment objective such as protectine public health or the environment, the
regulation will be upheld as constitutional.
� Common usage of the term"rights"conflates nvo distinct legal meanings: those rights that are specially provided
for or protected by law(e.g.,free speech);and those righ[s that exist simply because no law has been passed
restricting them(e.g.,the right to use a cell phone while driving). The latter type of right is ahvays subject to
potential regulation. Therefore,this memo addresses only those rights provided for or pro[ecied by law.This
memo also does not address�vhether an employer may refuse to employ someone who smokes. While prohibiting
smoking at work is permissible, Cal. Labor Code§96(k)protects employees Gom discrimina[ion based on off-
work conduc[,though one court held that this statute does not create new rights for employees but allows the state
to assen an employee's independently recognized rights.Bar6ee v. Household Au�o. Finonce Corp., 1 13 Cal.
App.4th Sti (2003).
ZRoe v. {f'ade,410 U.S. I13, 1�2(1973).
3 See; for example, Griswold v. Connecticur;381 U.S. 479,4S4(1964)(recognizing the right of mamed couples ro
use contracep[ives);Alevers v.NebrasAa, 262 U.S. 390(1923)(recognizing the right of parents to educate children
as they see fit);and Aloore v.East Cleveland,431 U.S.494(]977)(protecting the sanctiry of family
relationships).
° CiN ojA'orth Miami v.Kurtz,653 So2d 102�, 1028(Fla. 199�)(city requirement thatjob applicants affirtn that
they had not used tobacco in preceding yeaz upheld because°the `right to smoke' is no[included wi[hin the
peuumbra of fundamental rights protected under[the federal constimtion's privacy provisions]").
5 Grusendorjv. City ojOklahomn City, S 16 F.2d 539,541 (IOth Cir. 1987).
bld.The court relied heavily on the U.S. Supreme Court decision Ke/lei�v.Jo/rnson,425 U.S. 238 Q976). In Kelle}�,
the Coun held that a regulation goveming hair grooming for male police officers did not violate rights guaranteed
under the Due Process Clause even assuming there was a liberty interest in personal appearance.
�U.S. Const.amend. XIV,Cal. Cons[. art.l §7. See Serrono v.Priest,5 Cal. 3d 584,597 n.l I Q971)(plain[iff's
equal protection claims under Article 1 §11 and §21 of state cons[itu[ion aze"substantially equivalenP'[o claims
under equal protec[ion clause of Fourteenth Amendment of U.S.Constitution,and so the legal analysis of federal
claim applies to state claim).
8 Equal protec[ion provisions generally permi[legislation that singles out a class for distinc[i��e treatment"if such
classification bears a rational relation to the purposes of the legisla[ion."Brown v. Merlo, 8 Cal. 3d 855, 861
(1973).
9 See,for example,ero�+m n. eonrd ojEducatiat, 347 U.S.483 (1954)(race);Sugarman v. Dovga!l,413 U.S.634
(1973)(exclusion of aliens from a state's competitive civil semice violated equal protection clause); Croig v.
Bornn, 429 U.S. l90(1976)(classifications b}'eender must seme important govemmental objectives and must be
substantially related to the achievement).
10 Even some potentiatty damaging classifications,such as those based upon age,mental disabiliry and wealth,do
not receive any special protections. See; for example, City oJCle6urne v. Cleburne Living Cen(er,Inc.,473 U.S.
432 (1985)(mentally disabled adults are not protected under Equal Protectiou Clause);San Antonio Ltdependent
School Dist. v. Rodriguez,411 U.S. l (1973)(education and income classifications are not protected).
�� Frontiero v.Richardsm�,411 U.S. 677, 686(19T).
1z Fagan v.Axelrod,550 N.l'.S.2d 552,560(1990)(rejecting the argument that a state s[atu[e regulating tobacco
smoking in public areas discrimioated against members of a subordinate class of smokers on[he basis of nicotine
addiction b}'holding that`the equal protection clause does not preven[state legislatures from drawing lines that
[rea[one class of individuals or en[ities differently from others,unless the difference in[rea[ment is`palpably
arbi[rary' ").Note,roo,that nonsmokers also are not recognized as a protected class,so equal protection claims
brought by nonsmokers exposed to smoke in a place where smoking is permitted by!aw aze unlikely to succeed.
13 NYC C.L.A.S.H., brc. v. New }'ork,315 F. Supp.2d'461;450,482(S.D.N.Y.2004).
3
�"!d. nt 492.
15 See,for example,Bnker v. Carr,369 U.S. 186(1962) (improper congressioual redistricting violates voters' rights
under equal protection); Tiu�ner». Fouche,396 U.S. 346(1970)(all persons have a constitu[ional righ[ro be
considered for public service); Shnpiro v. Thompson,394 U.S. 618 Q969)(residency requirement for receipt of
sta[e benefits viola[es equal protection).
�b People v.Letmg, 5 Cal.App.4th 482,494 Q992).
��Dutchess/Pumnnr Resta�a'arit& Taver'n Ass'n, /nc. u Puhrmn CounN Dep't ofHenitl:, 178 F. Supp.2d 396,405
(N.Y. 2001)(holding that County code regulating smoking in public places does no[violate equal protection
rights); City ojTuscon v. CreznJfe;23 P3d 675 (2001)(upholding ordinance prohibiting smoking in bars bu[not
in bowling alleys because it is rationally related to legitimate government interes[); Operation Badlaw v. Lrcking
CoanR�Gen. Health Dist Bd. ojHenith, S66 P.Supp. 1059, 1064-5 (Ohio 1992)(upholding ordinance prohibiting
smoking excep[in bars and pool halls);Rossie r. Slnte, 395 N.W.2d 801, 807(Wis. 1986)(rejec[ing equal
protec[ion challenge to statu[e tha[banned smoking in government buildings but allowed it in cer[ain restaurants).
4
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A Law Synopsis by the Tobacco Control Legal Consorfium
��� The Americans with Disabilities Act: Effective Legal
Protection Against Secondhand Smoke Exposure
Clifford E. Douglns
April 2004 FUtJDED BY:
��
Tobecco Te�lvYCal
G�actn.v-s Cpy�. ym
Suggested citauon:
ClifEord L. Douglas, "1'obacco Control Legal Consoxtium, "]'Ge An�eiiranr
avithllirnbi/itierA�t: E(fCC�ILPLCgO�P)DZPCIZO11AgQIl7JISPCOJJ[I�JQIl[IS77J0�3CI�\�OJif)'P
(2004).
Coppright �O 2004 b�� the "1'obacm Control l..egal Consortium
'I'I�e Consortium can be ieached aL
E-maiL tobaccolaw a�vinitchell.edu
\\�eb: ���vuetobaccola�vicentex.org
Tel: (G51) 290-7506
The Americans with Disabilities Act: Effective Legal
Protection Against Secondhand Smoke Exposure
CliffordE. Douglas
Inhoduction
Theie is no safe level of esposure to secondhand accommodadon fails to do sq it maj-be Eound liable
tobacco smoke, according to the lini[ed Stares under the ADr1 for having discnminated againsc the
Enviionmental Protecuon Agenc}', the \ational disabled per;on. Similazl��, if secondhand smoke
Insdtute for Occupational Safety� and Health, the substanuall}� unpairs a disabled person at woik, the
American Lung Associadon, the tlmerican Cancer ADA requues the employer to protect the indi�-idual's
Socien; the \t'orld Health Organizauon and othec health be making reasonable accommodadons in the
leading public health and medical ocganizauons. �irockplace.
Secondhand smoke is the thud leading pie�-entable If a polic�� of permitting smoking has a
cause of death in the United States. Foi millions of discriminator3- effect b}� den�ing a person wich a
Americans, secondhand smoke has the potential to substanual smoke-related impaument access to a
cause unmediare,life-threatening asthmadc attacks. pubGdp accessible faciliry's goods oc sen�ices,the o�vne=
ThefederalAmericans��vthllisabiliriesAct(ADA), or managec must allow access b}', fox example,
�vhich rook effect in 1992, �vas adopted to pcovide a institudng a smoke-free polic�- and piocedures Eoi
comprehensive national mandate to eliminate eFfecuae enforcement of that policy-. \\�hile the ADA
discriminadon against people �vith disabilities. The proaides that a facility can daun rhat accommodating
ADA ma}'be used to pzotect people�vich asthma and the disabled peison�vould unpose an undue hazdship
others �ehose dail}* acnvities ue substandally lumted on the business, businesses mai� be hazd-piessed to
b}'secondhand smoke exposure in pri��ate and public demonstrate such haidship since the insntudon of a
workplaces ���th fiEteen or more emplo}ee; (Tide n; smoke-free policp ordinaril}� creates Gtde, if an}',
mhileaccessinprhesercicesoE,ocpazdcipatingin,sta[e difficult}' oz expense. The same is tcue in the
and local govemment(I'ide In;and in places of public employ�ment contest. If an individual is quaGfied to
accommodarion(Tide II�. Tfils legal sjnopsis outluies do a job but cannot do (or appl}' for) it because of
�vhen esposure to secondhand smoke quaGfies as a the presence of secondhand smoke,the emplover can
disabilitp undei the AD�1(Secuon n,summarizes�vhat avoid a potential finding of discvmination undec the
consututes a "reasonable accommodation" b}' an
emplo}'ei or public place (Secdon I�, describes the Key Points
scope and constiturionality�of [he ADA as deEmed bp �Those who are 'disobled' by sxondhond smoke
recent Supceme Cour[ and othec cases (Secaon Ii�; �on use the ADA to oued a legol right not to be
exposed to smoke in workplaces ond public places,
and iden[ifies the remedies undec the ADA for suchosrestaumnts.
smol;ing-relateddiscruninadon (SecdonT��. Section pMostquolifiedindrviduolsmnseekmoneydomoges
IV also pzovides infoimation on who to contact fox ond injundi�e relief.
assistance in btingingADA legal actions. O Employers, owners and manogers must
If secondhand smoke substanuall}' impaiis a occommodaie o disobled person by providing
disabled person in a place of public accommodation effedive seporoiion of smoking ond nonsmoking
e. a res[aurant, hotel, school, s[ore, museum, a�easorbyeliminotingsmokingentirely.
� S��
communit}� center oc homeless sheltet'), the t1DA 0 People wifh dimbilities can obiain(ree ADA-related
xequixes [he facility to make itself accessible ro t6e �egol ossisionce Irom the Equal Employment
Opporfunity Commission and ihe U.S.Department
disabled pezson b}' making reasonable modiGcadons of Justice.
in ir policies and procedures. IE the place of public
This synopsis is prarided tor educational purposes onty antl is not to be construed as a legal opinion or as a subshtute for obaining legal advice fmm an
attorney. Laws dted are current as of April 1,2004.The Tobacco Control Legal Consortium provides legal intormation and eduwtion about robacco and '
health,but does not pmvide legal representation. Readers with questions about the application of the law ro speafic facts are encouraged to consuldeqal
counsel�amiliar with lhe laws of lheirjuri5dictions.
�
Legal Protedion AgainsiSemndhand Smoke Exposure ,
�1llA b}'�nstituting a smoke-free workplace polic}�or asthma, had asked his emplo}'er to modify his duties
by taking other steps to ensure the disabled person to minimizc his exposuce to cigarette smoke and
will uot be exposed to smoke. caxbon mono�ide. ���hile the Supreme Couxt ruled
A number of cases involving secondhand sinoke- that state agencies cannot be sued for money damages
related disabilities have been brought under the ADA undec the ADA,'- the Couxt notably did not quesuon
and related la�vs. Some cases have been resolved by the right of a pexson to claim a disability undex the
jury verdicts; others have been setded out of court. ADA relating to secondhand tobacco smoke exposuie.
\��liile the outcoine has depended on the specific facts (The Couci did pexmit claims fox injuncuve relief.)
oC each case,it is cleax that a failure to accommodate "l l�e Supreme Court's acceptance oE a claun involving
a clisabled person it�a sansfactorv mannec can xesult in esposum to secondhand smoke conf�med tha[eligible
costly, not to mention avoidable, litigation for the plaintiffs �vho suffer feom a disability� that is induced�
pcivate ox public employex, place of puUlic ox esacerbated bj� exposure to secondhand smoke
accommodatton or pcovidex oF scrvices. In cases can seek]cgal xedicss undee the ADA.
decided agtinst the plainuFE,dic adverse rulings ofte❑ On die othcr hand,tl�e ADA can��ot be used bV a
resulted�vl�en courts found diac either the mclividual pexson mGo rmoker to demand that he or she be
�vas unable to demonstrate that tlie alleged disabilit�� pennitted to smoke in a�vorkplace or place of public
substantially limited his or her abilitp to�voxk, ox rhe accommodation bascd on an acgument that he oz she
defendant had taken sufficient steps to accommodate is addicted to nicotine and thexefoxe"disabled"under
a disabled individual. the AllA. The ADA is clear on rhis mattec, stating:
"Nothi��g in this �la�v] s6a11 be co�strued to preclude
Section I — When Does a the pcol�ibiaon of, or tlze iinposition of xestric[ions
Secondhand Smoke-Related Illness on, smoking in places of employment covered b}'
QUq�lfy as a Disability under the �1lt1eI],ic� teansportationcovcredby� �Title]IosIII],
ADA? ox in places of puUlic accommodal�on covered by
[I'itle III] "3
To satisf��tl�e requirement that a disabilitV constitute
The ADA pxovides that an inclividual is � °°substanliaP' limitation of a major liEe activiq�, a
"disabled" if he ox she has a physical ox mcntal �erson who is icnpai�ed by sccondhand smoke
unpa�ment that exposuee must demonstrate d�e impaieme��t is both
� severe �nd precLctaUlp long-texm." \\�hile disabiliq�
]. ,substanuallp limits a majox life activiq;suc6 as �etexmiu2tions are u�ade on a case-b}'-case basis, a
Uxeathing, walking ox �vorking; pecson�vl�ose astlima,clironic Uronclutis oc angina is
senously aggravated by exposute to secondhand
2. has a record of such an impa�menr, or smoke—clusing hun or her, for e�ample, to suffer
restricted brcathing, uncontrollaUle coughing ox
3. is xegaxded as having such an impaumei�t. �]ebtlit�tin�r chcst paiu—i+ uiuch moxe lilcel}' to be
covered by l6e t1DA thati a person who experiences
O�e such unpntement is diEficulry Uread�ing or 2 teinpocaty condition, such xs bronchtds Eollo.ving
ot6ec aiLnencs, such as a caidiovascular disoide1, diat the flu,sincc tlie foxmeeillnesses are chraiic,undeely�ing
are caused ox esacecbated b}'esposuxe to secondhai�d conclinons and lilcely to be viewed as uuly clisabling.
tobacco smoke. Por a pecson�vho suffexs fxom such � �
7�vo pcominenl cases are illustrauve. 'fhe fust led
licalth efEects, secondhand tobacco smoke may posc
to the elimivation of smokiug in man�� D4cDonald's
as great a baxrier to access as a flight of stai�s poses �0 1nd 13ucger IG��g restaura��ts. ln the 1995 case Staron
a peison in a �vheelchaii. In the Z001 case BoarA of �, nlcvonald r Cap.,s tl�e U.S. Couxt of Appeals fox the
TrJUiee.r of tbe Univer,re}� qf Ala�iama r. Garrel/,' one
Second Ciccmt Lzded unaiumouslp that three asthmatic
plainuff�vas a state emplopee�vho,because oE chxonic cl�ildren aud au s�dult�vitli lupus could sue I�4cDonald's
2
Legal ProtectionAgainst$econdhand$moke Expos�re
and Bucgei King under the AD!1° The plaintiffs indi��iduals �vho might�1�sh to daun disability under
alleged that the two cocporations' policies of the ADA, the Court emphasized that a disabilin�
permitting smol;ing in their restaurancs �-iolated the determinadon must be based on the persods actual
ADA and they sought an injuncdon requinng the condirion at che time of the alleged discriminadon.
defendants to establish smoke-free polides. ��'ithin a This means that,iEthe plaintiffwas not in the pcactice
yeu,D4cDonald's announced its decision to implement of using a medicarion or de��ce ro mirigare the disabilitp
a smoke-free polic�• in all of its corpoiate-owned at the time the discriminarion occuired, speculadon
iestaurants. The court stated, "under the appcopriate reguding �ehethec the person might not have been
cucumstances, a ban o� smdcing could . . . be a disabled with the aid of inedication or a decice is
reasonable modification" for puiposes of urelecant, and an emplo}'ex or pcoprieroc of a public
accommodating a pecson's disabilin�. accommodarion cannot make such an azgument.
In a similar case in�-olcing nvo of the largest It is possible, of course, that in secondhand
iestaurant chains in the United States,a D��land cou�t smoke-celated case; a plaintiff, such as a pe�son �dth
ruled that three �vomen «nth asthma could proceed asthma, whose condidon was fully contiolled ��ith
��vth an ADA lawsuit to compel che Red Lobstei and medicauon,would no[be regazded as disabled undec
Rubp Tuesda}' chains to implement smoke-free the ADA. \onetheless, pmdent emplo}'ers, o�t'neis
policies.� The couit�z�zote, "just as a staucase denies and manager;�vill s�ill bear in mind thar.
access to someone in a �vheelchair, tobacco smoke
pce��ents Plaintiffs from dining at Defendant's • The ADA cleazlc pecmits clauns of disability
cestaurants. Thecefore, Plaintiffs ha�•e adequatel}' due ro secondhand smoke exposure;
alleged they are disabled «ithin the meaning of the
ADA and thaT their disability bais them From • Determinadonsof disabilit}�anddisciitnination
Defendants'restaucant�" are made on an individual-by-individual basis;
The Availobility of"Miti9ating Meosures° • Potenuall5 millions of Amencans have robacco
The Supreme Court has mled that a disabled smoke-related disabilides that ma}'qualif}�them
person who expenences no substantial limitadon in to take acuon pursuant to the ADA.
an}' major life acti�-iri wbea uring a mitigaling meanne,
such as medicadon oi a device, does not meet the The 2001 Fedecal discrict court case Service r. Unran
ADA's fust deEuuuon of disabiliq�—that the disabilitp Pacific. RR Ca.,' �ehich considered the pucpocted
subscanually limits a major liEe activiRc The plaintiEfs a�-ailability of a mitigaring measure to offset the effeccs
in the 1999 Srdton r. UnitedAirIlnere case were hvin of secondhand smoke esposuce, is instrucdve. The
sistecs, both of�rhom suEfeced from se��ere �nyopia Servire case concemed an employee's claim that
that ���as coccectable �vith appropnate lenses. Boch esposure to cobacco smoke caused him to suffer
had applied for posidons as pIlots �vith United Air sevece asthma attacks. He alleged his emplo}'ec had
Lines and were refused emplo}�ment because of t6eic discruninated against him in �•iolauon of the AllA
pooc uncorrected vision. The applicants argued the and the Califoxnia Fau Emplo}'ment and HousingAct.
aixline's reEusal to hixe rhem as pilots because of dieir D�itigating measuie;could be used only�afler an attack
poor uncozxected vision�aas based upon their disabilin' had beguq and e�•en then his asthma could not ahva}s
and��as impecmissible discrimination undeL the ADA. be contL011ed. "I�he defendant did not dispute that the
The Court disagreed, not�vichstanding that die plainuff's asthma constimted a ph}'sical unpaicment
defendant indisputablp discriminated against the «�thin the mearung oE the AD�. The onl}'issue�tzs
applicancs and denied them emplo}'ment based on �rhether the plaintiEf's asthma substantiall}*lunited one
theu pooL(uncorrected)�zsion. oc moie of his major life acdvides. Citing the Supieme
\\�hile the Supieme Court's decision might not be Couit's decision in Suttom, the federal district court
cegaLded as pazticulazle fac-ozable for some of those stated:
3
Legal Protection Againsi$econdhand$moke Expowre .
Although the couxt must considex any factoxs 1999 fedecal district couxt decision Brmttan r. IE%rt,"
that may midgate plaintiff's impa�ment, the the court found unpexsuasive the proposition that
pxesence oE mitigadng measuxes does not accommodations axe only necessaty to enable an
mean that an individual is not protected by employee to pexform the essential fi�ncdons of the
thc ADA. Rathec, an individual may still be position. lt detecmined emplo}'ces also have
substandally limited in a major life acuvity, responsibiLty to ensure a disabled pecson can enjoy
❑ohvithstanding the use oFa corcectiae de��ice the privileges and benefits of employment equal ro
like medicine, �vhidi may only� lessen d�e those enjoyed b}'employees �vho ace not disabled.
s}'mptoms of an impa�ment. ]n the 1998 case Cn.rtidy u Detroit Editon Co.,'Z a
Michigan lawsuit that mas dccided under the AllA
Consequendy the couct denied the defendauPs mouon and the n�ichigan Handicappers' Civil Rights Act, an
foc summary judgment on the issue of�vhethex it had individual filed a disccimination claim alleging 6ex
xeasonably accommodated die plainuff. emploj�ci Eailed to piovide her wit6 ai� allergen-fiee
�vork environment. The U.S. Couit of tlppeals for
Section I I — What Constitutes p the Sistl�Cixcuit agieed the plaie�dfE�vas disabled Uy a
��Reasonable Accommodation" �Jy bxeathingconditionthatwasexaceebatedbyexposure
an Employer or Public Place? to cleaning chemicals, smoke and othec aiibocne
suUstances, but ruled the defendant had
As noted, the AllA affords a disabled individual �ccommodated hex by� scheduling he� foc shifts that
the xight to be accommodated in a xeasonable fashion enabled hex to]eave when a known allexgen would Ue
to inake possible his or hee employmeut ox access to Present,and by testing the faciliues and per�mtdng her
a public place. A significant bod}�of case law covexs �o use a bxeathing machine.
what satisfics the requirement that disabled pexsons T�'e more recent case of Eqrra! Lmpla��ment
Ue reasonaUly accommodated. lf a defe��dai�t is OpJ�or7ruri�ConrmirrioiJt:,9merzrm7Aer/mer,Inc, pcovides
deemed to have already pcovided ceasoi��Ule �n exccllent example of ho�v filing an AllA claim can
acconnnodation,courts geuexall}�«'�n�le against the Lcsult ui an emplopex's accommodation that effecuvely
plaindfF, although coucts do not always interpxet the I�rotects a�� individual against disabling e�posure to
requuemet�ts of the ADA in etactly�the same�vay. t6e smoke oF others. Flight attendant Nocma Bxoii�
The Eus[court decision xendexed ui�der the t1llA �'ad suffeied fxom lu�g cancex and ongoiug respuatory
conceming unwa��ted exposure to secondhand sinoke difficulties as a resak oF esposuce to secondhand
foimd the emplo}'er had ieasonaUly accommodated sinol:e i❑ airline caUins and otlier wock-xelated
tl�e disaUled employee The 7993 case Harmer v. envixonments. In an acuon bcought by the Equal
Virgiuia Fle�hzr d�'Po�YerCompm��10�vas bcought by an E"'Y�o�-inent Opporamit}� Coimmssion (F.�OC) on
iudividual who suffered froin asthma and alleged d�nt �31oiii's Uehalf, American Aulines agceed to protect
his emplo}'cr had discximinated against him bp failing 13cou� agamst eaposure to secondhand smoke and to
to pcovide a senoke-Ccee�voxking envixonmenl. Priuc V�7'��er 2 combmed�74,000 it� bacl:pa}; ��l[exest aud
to tsial, the employex pcohibited stnolctug in all of tLe compensatoty dauiages. The sutt was filed underTitle
buildings �vhere it l�ad not al�eady �nstalled separntc � °� die ADA,as�vell as the Civil Rights Ac[of 1991,
venulation s}'stems in sinol;ingxooms. Disinissing�lie �°��2�leged the defendant violated the t1Dt1 by failing
claim, t6c couxt held that the t1DA piotected Ll�e to reasonablj-accommodate I3com m a umel}'Inanner.
plaintiff from disccnninauon due ro lus clisabilit��, but The settlement pxovided that, i�� addition to
found that, t6e defendant had reasonably compeusating 13toin as described abo��e, the aulicie
accommodatcd him. would afFocd Bcoin reasonable accommodauon by
A latec case, ho�vevex, �vluch did not (�ectain to ��lowing hex to select uons�noking flights that
smol;ing, disagreed�vid� the narro.v inteq�retauon oC �'xigtnated and landed in aixpoxt texminals that did not
the ADA emplo}'ed in the Harn�er decisiou. In t6e permit smoking in axeas�vtiece Broii�nuglit be requixed
4
� Legal Protection AgainsiSecondhand Smoke Ezposure
or reasonably be expected to be present. The Section III — Key Court Decisions
defendaat further agreed that any�tlmencan �ulines Conceming the Constitutionality
tcaining centers tha[the airline might iequire Broin [o and Scope of Titles I and I I
attend �vould be nonsmoking facilides. �4oceovec, of the ADA
the ai=line agreed to post for a period of mo yeacs a
conspicuous nouce to emplo}'ees setdng Eorth the
auline's legal obGgadons under the ADA. Finallq the Since the ADA �vent into efEect in ]992, se�•eral
setdement enerall�en oined the aixline Eiom en appellace court decisions have been issued chat affect
in any emp oyment pcacrice that violated the AD bg �'e use of Tides I and II in certain zespects.18 Tide I
discrinvnating againscir employ�ees and job applicants oE [he ADA cequices private employers, emplo}'ment
on the basis of disabilitr. (i�TOtably; the Broin case agencies and laboc unions to procide xeasonable
�vas filed in b[arch 2000 and officiall}' resolved «�th accommodadon to qualified indi��duals��ith disabilides
the federal district court's appzo�•al in June 2001. Thus, `�'ho aze emploti-ee; oi applicants for employment,
once the EEOC took action on Bcoin's behalE, the e�cep[ when such accommodadon «�ould cause an
legal process moved xelati�ely swifdy.) undue hardship. Tide I also protects emplo}�ees and
Reasonable accommodation must also be applicants for emplo��ment against disabilin--xelated
pro�idedinpublicplaces. InAazrtllviagaftl4etropok7an �scuminationb}'stateandlocalgo��ecnmencenudes."
ChicaBo r. Chirago Traant_A�dborit��,15 decided in 2001,a Tt'e U.S. Supceme Coun, ho�vever, has limited the
not-forprofit group sued a ]ocal government agency Lemedies available in legal actions brought against ttate
undez Tide II of the ADi1, as u�ell as anothec federal Bo�•ernment defendants. Title II pzo�-ides similar
stamte, the Rehabilitauon Act.16 The court heaid protecuons for individuals who ue eGgible to receiae
e�-idenceoFmuldpleincidentsofdisabledndersbeing sexcice oc participate in pcograms or activities
stranded, ignored and injuied while riding che city of Piovided by sta[e and local government enuties. A
Chicagds public transporradon s}�stem. Access Living majonn'oEfederal appeals courts that ha�-e adjudicated
and some of its individual members sought injuncdve �egal challenges ro the use of Tide II against state
relief and money damages. The defendant azgued it 8ovemments have upheld its consdmnonalitj;�vhile a
had taken numeLOUS steps to accommodate disabled small minoxity�oFcoucts has disagreed. (I'he Supreme
rideis. Finding the plaindffs had pcovided evidence
Couct has}'et to considec the quesdon.)
that each of the deEendan['s precautions and
\\rhile Title I initiallp was widel}' regaxded as
procedures had failed repeatedly and continued to fail, auchorizing state gocernment workers to sue cheii
the court denied the deFendant's motion Foz summar}' employexs for boch monec damages and injuncdve
judgment and permitted the case to proceed against relief, the U.S.Supieme Couct ruled in 2001 [hat state
the local govemment agenc�c° government�vorkers cannot sue foc moneC damages
Tt is also �vozth noting that, in at least some under the ADA. Ip Board of Tnuteer of the Univ�rrrty�of
cucumstances, [he complete eliminadon of smol:ing Alabama u Garrett, the Courc held that the Ele�-enth
may- be deemed a reasonable accommodation. For �'endment to the U.S. Constitudon,«hich gives the
esample,as discussed in Secuon 1, the court in Staron staces bcoad prorection against damage suits,
n McDonalA'r Corp., �rhich concerned smol:ing in 'n'munizes state go�-ecncnents against ADA damage
McDonald's and Buzgei Iiing mstaucants,decided that acnons. The Court found,however,tha[state�vorkers
"under the appropriate circumstances: a ban o❑ retain the power to bang acdons for injunctive relief
smoking could . . . be a reasonable modificauod' foc undec Tide I. In a dissenting opinion that �ras also
purposes of accotnmodating a person's disabiliry.7'he signed b}' <<�ree other justices,Jusnce Stephen Bre}'er
Appendia pcovides addidonal case esamples,including obse�ved that injuncdons "ace sometimes draconian
fuic6ec refecences to ho�v difEecent courts haae and n�pically moze intrusive."
addressed the issue of"reasonable accommodadon." Thus;by retauung the powec ro sue Eor injuncdve
relief, plaintiffs conunue to possess a po�vecEul legal
tool to seek rediess from state govemment entides
5
Legal Protedion Against Semndhand Smoke Exposure �
undec Tide I. The majority oEthe Cou�t fucrhex held discrimination by public accommodations or
that loralgoveinment employees can sue theix commexcialCaciliues,orbyastateoclocalgovemment
emplo}'ers fox money damages,as well as for injunctive unit,may file a compltint«nth the Civil Rights Division
celief, because Eleventh Amendme��t immunity does of the Depaxtinent of Justice at the follo�ving addcess:
not estend to local govexnment units, sud� as cities Disability Rights Secdon, Civil Rights Division, U.S.
and counties. In addition, both state and local llepaxtment of Juscice, P.O. Box 66738,
government employees continue ro have non-ADA \\�aslvngton, llC 20035-6738.
remedies undex aarious state la�vs, thxough A plaintiCC who has bxouglit a pnvate civil suit
administrative pcoceduxes or mith tl�e Equal ma}' also request t6e intcxvention of the Justice
I:mplo}'ment Oppoxtunit�� Commission. Depaxtment, �vhich will then dctecmine �vhethex the
Title II provides that"no qualified individualwid� case is of general public importance. If the Justice
a disabiliry shall, by reason of such disabilit��, bc llepaxtment does sq the couct may pexmit the jusdce
e�cludedfromparticipationinoxbedemedthebenefits Department to intervene in the actioq and i�� some
of the sexaices, pxograms, ox activities of a public ciecwnstances the couxt may then appoi�t an attorney
enuty, ox be subjected to discxviunauon by any sucli Cor tl�e plaintifE and authoxize coirunencetnent oE the
entity:" To date,the Supreme Court has not addressed action�vitliout tlie pa}'ment oC fees ox costs.
llie question of �vhetlier"1'itle II of the ADA can be 'Phe Allt1's xegulauons encourage the use oE
used fox claims that a state ox local government entit}' altemauae fncans of dispute xesolution,�vhexe possiblc,
discximinared against an emplo}'ee or membex of thc induding setilcment negotiarions, conciliaaon ai�d
pubGc. However, in the event the Supreme Court axbitxauon �o resolve sucl� dispules. ln enacuc�g the
takes up the issue,it is likel}'(chough not cextain)that, ADA, Congcess specifically encouraged the use of
consistent�vid� the holding in Garrelt, the Court�vill altemative means of dispute msolution. The prunary
permit clauns For money�damages and injunctive xelief goal of the Jusuce llepaxnnent's enforcement peocess
against local govec��ment entities ai�d claims Cor is to incxease voluntary�compha��ce thxough technical
in�ui�ctiveieGef agauist stategovenunententities. assistance aud uegottation. Inclecd, tnost complait�ts
ace setded folloming negouation. Repcesentadon by
Section IV — What Remedies Does anattox��ey�ispermitted,butnotrequi�ed,inmediation.
the ADA Provide? The Justice Depanment xefexs appropriate ADA
disputes to mediatois at ��o cost to the pacdes and
Discrimination Involving Places of Public provides thc names oE ixained mediatoxs �vho are
Accommodation participatiug iu t6e depaim�eut's meciiation pxogxam
T6e t1DA enables individuals to take lega]acdon and �vho are located in tl�e geographical axea of the
ifthe}'believetheyhavesuffexeddiscrvninanonrelating complainat�L ]f an individual wishes to pursue the
to esposuxe to secondha��d tobacco smol;e in facilities �>>spute thcougl� the Jusuce llepactmenPs mediatioii
open to the puUlic. "The regulations ldopted to PLOCess, he or she should address the complaint lo
unpleinenttheAllApxovidethatanypersonsubjected ���e AllA D�lediation Pxogxam xt tl�e addiess noted
to discrirrunation may insumte a civil acdon to prcvent lbove.
such discriminauon, including an application for a The Deparanent of Jusuce pxovides infonnauon
ictnpoeary or pexmanent injuncuon or other potential �liout the AI�A through its toll-fece AllA Infocmation
remedies. An iudividual may file a Title 111 �-�ne.Thisscrvicepermitsindividuals,businesses,statc
disccimination complaint alone or ma}', �"hen 2nd local govcrnments, and othees to call and nslc
applicable,join�vith other inclividuals�vho have been 9«esuons abotn genexal os specific AllA ieyuirements
subjected to d�e same disciiminadon (e.g., pmvented 1nd to oxder free AllA matecials. ADA specialists are
fxom entering a restaurant that permi[s smoking� in availableD4onda}'through Piida};Feom10:00AD7u��til
filing a single complaint Uearing all oC dieir names. �����PM(castcrn stnndaxd umc), cacept on Thursday
lndividuals w6o beGeve they ma�� hlve suEFcicd �vhen t6c l�ours uc 1:00 Pbl un[il 6:00 PD1. Spauish
6
Legal Protection Against Secondhand Smoke Expos�re
language service is also available.The toll-Ezee numbers a claim based on the facts of the case. As suggested
ate(800)�140301 (voice)and(800)�140383(I'DD). abo�e and in the summaries oE cases found in the
�ppendis,courts do not al���a}'s intecpret the ADA in
Discrimination Involving the Workploce idenrical �va}•s, and sometunes the esact same set of
The emplo}'ment piovisions of the ADA are facts «ill bring a plainnff's vecdict in one court, but
enforced under the same procedures that applc to resultin a defeatfozthe plaintiffin anothercourc
race, coloi, ses, national oiigin and religious .�iecu�ringthemeinADAcasesisthatmanyhave
disciinunauon. The r1DA enables emplo}'ees to take incol�-ed disagreements ovei �vhat consututes a
legal action if the}� belie��e the}� have suffered reasonable accommodation of an employee or
discriminanon relaung to esposure to secondhand member of che public Theie are essendall}- [u�o
tobacco smoke. Individuals who believe thef� ma} opuons foc addressing the problem oE secondhand
ha��e been subjected ro �vorkplace discriminadon smoke in public accommodadons: (1) pro�-iding
reladng [o a disability� may file a complaint ��nth the separate smoking and nonsmoking areas, oz (2)
Equa] Emplo}'ment Oppoitunity Commission or in;ututing a rotally smoke-free envizonment. The
designated stare human rights agencies. To file a �vorkplaceprovidessimilarbutalsoaddirionaloprions:
complaint«�th the EEOC, individuals can begin by (1)segregating employees in common aceas,(2)limiting
calling (800) 669-4000 (��oice) ar (S00) 800-3302 smol:ing ro lounges or cafeterias; (3) developing
(I'DD) [o zeach the field oEfice in their axeas. completel}' sepacate areas for smokecs and
In addition,dte regulations adopted to implement nonsmokers to congcegate and�vork oc(4)instituting
the ADA provide that a��}' pecson subjected to a totally smoke-free envuonmenc In both contests,
discriminadon may insntute a ci��il action to pce�-ent the option of cceating a smoke-free em-ironment is
such discriminadon, induding an appGcation for a themosteffidentandleas[cosdpaltemative. Insdmting
temporary oc pecmanent injuncdon or other potendal a smoke-free policp is also ad��isable because, foc
remedies. disabled and able-bodied pecsons alil:e, thece is no
As in the public accommodadon conteat descnbed saEe le�•el of eiposure to secondhand smoke.
above, the plainriff ma}'also ieyuest the inrervendon �lnother issue worth}' of paLticular attention
of the]ustice Depaztmen�,�rhich�vill then detecmine concerns the responsibilit}' of stare and local
�vhether the case is of genecal pubGc unportance. go�-emmencs to piotect all people against exposuce
ilgain, if the Jusdce Department does so, the court to secondhand smoke inside govecnment buildings.
ma}'peimit the lleputment to inter��ene in the acdon, It is ceasonably�cleai,based on recent Supceme Court
andinsomeciccumstancesthecourtma} thenappoint interpretation of the AllA, that employ�ees and
a❑ atrorney for the plaintiff and authoiize membecs oE the public who suffer fiom secondhand
commencement of rhe action �vithout Lhe pa�-ment smoke-celated disabiliues geneially ace entided to
of fees or costs. pxocecdon against such esposuce in state and local
government faciliues. In light of the o��erwhelming
Conelusion medical evidence thaC secondhand smoke is harmful
xo all and ea�emel}' har�nfid ro some, government
It is appaient from a sur�•e}'of the cases decided authorides should insdtute smoke-free policies for all
ro dare that an indi�-idual ���ho cleady� sadsfies the buildings�rithintheiLjurisdicdons.
requirements of the ADA and offers a solid �is recommendation applies equall}' to pri�-ate
foundation of e��idence to suppoct his or her «'orkplaces and places of,pubGc accommodation.
allegations can succeed in a claun brought u��der the Failure to unplement smoke-Free policies ox,at a bare
AD�1. That said, it is impozta��t that one �vho is minimuin, separatel}� partitioned and venulated
contempladng filing such a claim obtain informed smol;ing and nonsmoking areas, exposes emplogers;
counsel—from a pri�•ate attomey�, the EEOC oc the on>ner;, and manageis to potendal Gabilin'undet the
Depaztmentof)ustice—regardingthe«ability�ofsuch i1DA, as �rell as other state and fedecal laws and
7
Legal Protection Against Secondhand Smoke Ezposure •
common law acdons. or public healt6 ocganizations either thxeaten ox
An individual �vho is contempladng filing a pcoceed to take legal acUOn on behalE of theix
disabiGty�claim may also considez doing so under state membexs or constituents who are effecdvelp excluded
clisabiliq�law in addition to the AD�1. Some plainuffs from a public place due to their secondhand smoke-
d�oose to i�dude both federal and state legal clauns. xelated clisabilities.
An esample of one such state la�v is the b4ichigan
Handicappers' Civil Rights Act,which pcovidcs that,
`°I'he oppoxtunity to obtain emplo}'ment,housing and
otl�ex real estate and full and equal utilization oEpuUlic
accommodations, public sexvices, and educational
Cacihues without discximuiadov because of a disability�
is guacaiiteed Uy diis act and is a civil right"'-'
Finall}S those who are considering filing suit should
kcep in miiid that,i�some instances,agani�atiour that
represent the intexests oF a gxoup of disaUled
individuals can take action u�der the ADA.
Oxganizations ofren have greatex xesoucces tl�an
individuals�vtth�vhich to pursue such actions,and d�e}'
cai�repxesent rhe intexests of muldple indi�•iduals in a
siugle lawsuit T7�e Arrerr Living case, desccibed in
section TI, pxovides an esample. The case was filed
by die organizadon togethec«dth some of its uzdividual
members akex numerous incidents in wluch disabled
ridexs�vere stranded,ignored ox injured�vlule seeking
to use Chicago's public isansportauon s}stem. Citing
vaiious Supreme Couxr and odiec pxecedents, the
federal distcict court found that Access Living had
"represeutauonal" standi�g to sue undei the AllA;
tliat is,it�v1s legally entidcd to file suit as an oxganization
rcprescnting dic mtemsts of a group of individuals.
'1'he couxt nded diar.
Access Living has . . . estaUlished
representauonal standu�g by�drtue of assertu�g
t6e xi�hts of its memUexs and constituents.
An association has standing to bru�g suit on
behalf of its membeis�vhen: (a)�ts tnemUeis
would othei�vise have stanciing to sue in t6eu
own iighr, (U) die intexests it seeks to protec[
are germane to the ocganizauods puxpose;
xnd(c�ncither die daim assexted nox the xelieF
ceyuested requires t6e participation of
iixlividual meinbccs it� the lawsuit.
]3ased on this a��d sunilac decisions, ic is possiUle
to cm�ision situations in�vluch certain tobacco-contxol
8
Legal Protection Against Secondhand Smoke 5cposure
A P P E N D I X Garcia v S.U.N.1'. Health Sciencer Ctr., 280 F.3d 9S (2d
Cir. 2001).
Notable Additional Case Law Interpreting
the Constitutionolity of the ADA as it In the Garaa case, the U.S. Court of Appeals foc
Applies to State and Local Governments �eSecondCucuitdecidedthataplaintiffcansucceed
in a disabilin�discnminaaon daim against a state,�iith
Popovicbi�Gr}�alwgaCountyCourtaf CommonPlear,Damertit �he proviso that to do so he or she must piove rhat
Relatronr Drvrrian,276 F.3d S03 (6'" Cu. 2002) (en banc) �e state had l;no�cingl}��rai�•ed its so�-ereign iminuni�
cen. denied, 537 U.S. 512. from suit. The court nored that Tide II (42 U.S.C.
§ 12134), as implemented through the li.S.
The full U.S.Couct oE Appeals foc the Sixth Ci�cuit Department of Jusnce regulations,requires that a state
overtumed an earlier decision of a three-judge panel make reasonable modiFcations in its progcams,
of the same couct, mling thac Congxess had vaGdl}• services or acn�ides foc qualified indi�-iduals «dth a
abolishedstates'�le�-en[h�lmendmentiminunityfrom disabiliry, unless the state can establish that the
la�vsuits by cirizens when i[ enacted Title I] oF the modiEcadon�iould fundamentall��alter the natuce of
ADA. The couxt thus held that che ADA atlows �he program, sec�-ice or acti��ity.
individuals ro sue states and localides for discdminatory
Notable Additional Case Law Concernin
conduct coveced bS�che ADt1. The individual plaintiff 9
In this case had brought thcee fedeial clauns against the Issue of What Constitutes o '�Reasonab�e
the Domestic Reladons Division (DRD) of the Accommodation"
Cupahoga Counn' Coun of Common Pleas, a state
govecnment endt}� in Ohio, alleging: (1) failure to 1/rcktrr r. T/etrranrAdmini.rtration,549 E Supp.SS(l�?D.
accommodate his hearing disabilitv,in violadon of Tide ��'ashington 1982).
I7 of the ADA;(2) retaliarion,also in violadon of the
r1DA; and (3) a non-r1D�1 civil rights claim undec a �1n earl}- case dealing with the question oE
separare statute. The plainnff clauned rhat the DRD "reasonable accommodation," I/irkerr was brought
failed to pzo�-ide hun���th an adequate hearing aid in undei the Rehabilitadon Act of 1973(RA),before the
the couzse of a prolonged child custody dispute. �DA �vas enacted. The decisions of courts and
Rel}'ing on the Garred decision, the court of appeals administxative tiibunals pcorecting sensitive
found that citizens can bring]a«�suits agauist states under nonsmoker; b}' applicadon of the RA can seme as
the ADA based, intrralia, on the Due Process Clause precedents foi similar protecdon under[her1DA. "I'he
of the Fourteenth Amendment Thus,undei this mling, ��PLOVides specificall}'that"nothing in [the ADr1]
plaindffs may sue states or local units of gocemment shall be consrrued to appl}' a lessec standard [han the
under Tide II of the r1D�. In addition to the Sixth standards applied undec the Rehabilitadon Act of
Cucuit in the Popovirb case, ihe Second, Fifth, Ninth, 1973." A Eederal district court found that an
Tenth,and Eleventh Circuits have also found that Tide emplo}'ee's sensiuvin' to tobacco smoke limited his
II can be used against states and bcalides In contias[, capacity�to�vork and qualiEed hun as a"handicapped
the federal appeals courts Eor the Seventh and Eighth person." (The]egislau�-e history behind the adoption
Ci=cuits have ruled that states axe prorected from such oF the ADA sho�vs that "clisabled," as used in [he
lawsuits by the Lleventh Amendment's sovereign- �n�, and "handicapped," as used in the RA, are
inununity-clause. essendally i�terchangeable.) Ho�vevex, the couit also
found xhat,assuming the emplo}'er had a duty�to maL+e
a ceasonable accommodauon ro plainriff's sensiti�'itS
to tobacco smoke, the employer had done so b`,
among ocher acuons, ph��sicallp sepanting the desks
of smoking and nonsmol;ing emplo}'ees, installing
9
Legal Profection Againsf Secondhand Smoke Exposure .
ceiling vents,and perautting rhe plaindEf to move his Millercase,appear to liave taken an estremely restricdve
desk fazthec away Erom the smoking acea and dosec appxoach to disability daims in the workplace.
to a«7ndow Give�i this ceasoning,it is importaiit to Certainly theix holdings would appeu to violate a
note that this case �vas decided in 1982. �C�hat was prunary oUjectrve of tl�e AllA,which is to eliminate
regarded as a xeasonable accommodation then would discriinination in every �vorkplace covexed by [he
likely be insuFficient now in light of fax greatex statuta Nonethcless, �vhile these cases wexe not
uuderstanding today oF the deleterious health effects brought under the ADA,any couct mclined to restnct
oFsecondhaeid smoke and the inadequacv oEthe inexe the nghts of cLsabled plaintiCfs�vho bringAllA clauns
sepaxadon of smokexs and nonsmokexs within the theorettcall}�couldadopttheixreasonu�g. See,e;g_,Bhoadr
same ai�space. v.PDIC,257 F.3d 373(4th Cir.2001);IVrrgent c� Rogoriir,
105 I Supp. 2d 106 (L.D.N.�. 2000);Bellom u l�Teiman
Grrpta�r u I/irginiq 14 F.3d 203 (4th Cir. 1994);n�illere: A4an7u Grarrp,lnu, 97� I? Supp. 527 (S.D.N.Y. 1997).
AT�'T 1Vetwark Syr., 915 E2d 1404 (9th Cir. 1990);
Fautt� Bo:ven, 794 F.2d 937 (4rh Cir. 1986). Notable Additional Case Law Entitling an
Employee to Compensation for a
�� G,rpto,:, ch� U.S. Courr of Appells Eo� �6� Secondhand-Smoke-Related Disability
Fouxth Ciccuit disagxeed wit6 the holdivg in Vzrkerr
and ruled against a plainufC w6o sued hex einployex, 1�rrodi rz 41e�zt Sj�rtem.r 1'rotection Boar�! 690 I'.2d 731
the Virgi�ila llcpactment of Txansportation(��01�. (911� Cic. 1)52).
The plamaFF had clavned d�at the�'llOT's failurc to
providc hex widi a smoke-free �vork em�iro�ment The Parodi case �vas brought under [he
violated the RehabiGtauon Act, as �vell as civil rights ]tchabiGtation Act before the AllA�vas enacted. The
la�vs. The couxt concluded that the plaintiff did �iot ��xoblem initially axose'when the federal govecnme�t
establish thathec allergp to tobacco smoke substanuall}' employee�vas transFexred to an office in which other
limited hex ability to woxk,and that she did not assect cmplo}'ecs smokcd. Sl�c suffcxcd severe pulmonarp
that it limited an}' odier of hex majox life acti��iucs. mactions ro the smoke and �vas unable to carry out
The FouxCh Circuit ackno�vledged that the Eacts of hec dudes. Sl�e applied Eoc disability emploj�ment
the Grrpton clse were similar to those in 7/irkert,and it ���i�efits,daiming tliat her seaere reacuons to cigaxette
aLo recognized thlt 1/ickerr had �ot been revexsed, smolce iendered l�ex disabled. "1'he U.S. Couxt of
but the cotvt asserted thxt the ceasoning in the Vickert A��peals for the Nintl�Cucuit]�cld that she was entided
decision conflicted witli a later opinion by the U.S. lo sid:pay disability�benefits until the emplo}'er could
Court of Appeals for d�e Ninth Cucuit Court in dze place hei in a comparable position in which she�eas
R�illercase. ThecouetinAlillerruledthat,foxaplaintiff not esposed to smoke. Si��ce the emplo}'er had no
to establish that he had an impaixment rhat substanfiall}' comp5cable posidons available in which d�e employee
limired his ability� to work, he �vould have to slio�v �vould not be exposed lo smoke, shc received a
diatit"substai�tiallyli�nits�liis]emplopabiliq�generall}S" disabilih- retixement peusion of$SQ000 plus a lump
not just his abihty to obtaui a job u�a noersmoke-free suin payinent.
�voxkplace. The Grpton court mled rhat T/irkesr also
conflicted with die decision i� the Poriri case, �vhich
held that for an impairment to substandally� lvnit a
plaic�nfC's aUility to�vork,it must"`foreclosc generally
[his op�orhmit}' to oU[ain] the ty�pe of emplo}'ment
involved' . . . i.c., foredose him genexally from
obtaining joUs doin� the rype of�vork plaindEf l�as
chosen as his field." 7'hus, the Fouith Circuit in thc
Grrpton and Pairi cases, and d�e Ninth C�rcuit in the
lo
Legal Protection Against Secondhand Smoke Ezposure
About the Author
CGfford E. Douglas is a Consulting Attomes a�
the Smoke-Free Envuonments Law Pxojecc.
Endnotes
' S31 U.S.356 (2001).
' 42 LLS.C. § 72207(b). See Section III for more on this issue.
' See also Brashear v Simms, 138 F. Supp.2d 693 (D. Md.2001), which ruled ihat smoking, whether denominated as
� °nicotine addiction"or not, is not a"disability"within the meaning of the ADA.
' See Toyota Motor Mfg. Kentucky, Inc. v. W/liams, 534 U.S. 184 (2002).
' S1 F.3d 353(2d Cir. 1995).
° The Staron case also highlighis another important feature of ihe ADA—ihat ihe law protecis persons of all ages.
Children �vho are asthmatic or suffer from such common illnesses as chronic middle-ear infection may qualify as
disabted under the ADA ii iheir illnesses are sufficiently severe and predictably long-term and prevent them from
entering a public accommodation that permits smoking.
' Edwards v. GMRI, Inc., Montgomery County (Md.) Circuit Court, No. 179593 (Mar. 1, 1999).
° 527 U.S. 477 (1999).
° 153 F.Supp.2d 1187 (E.D.Cal.2007).
° 831 F.Supp. 1300(E.D.Va. 1993).
" 1999 U.S.Dist.LEXIS 7343 (N.D.III. 1999).
a 138 E3d 629 (6th Cir. 1998).
° Civil Action No.00-296-A (E.D.Va.), consent decree, June 13, 2001.
" See Section IV regarding how to receive assisiance from ihe EEOC.
° U.S.Dist.LEXIS 6047 (N.D.III.2001).
° See the description of the Vickers case in ihe Appendix for a discussion of ihe Rehabtlitation Aci and its complemen-
tary relationship to the ADA.
° At teast one other federal court has followed the Access Living decision. Association !or Disabled Americans, Inc. v.
Claypool Holdings LLC, 2001 U.S. Dist.LEXIS 23729 (S.D. Ind.2007).
e Title III has not been affected by constitutional legal challenges.
° Tiile I does not apply to ihe following employers: ihe United Siates Government, Indian tribes, and private membership
clubs lhat are exempt from taxation.
m s3i us. sss, iz� s.a.sss �200>>.
� MicH.Coua.Lnws AnN.§37.1102. For example,the case of Cassidy e Del�oit Edison Co., 138 F.3d 629 (61h Cir. 7998),
discussed in Section II, was decided under the ADA and the Michigan Handicappers' Civil Rights Aci.
11
About the Tobacco Control Legal Consortium
7'he Tobacco Contxol Legal Coi�sortiuin is a natiousi] nchvoik of
legal piograms suppoxung tobacco conuol policy change by�giaing
advocates bettex access to ]cgal cxpertise. 'J'he Consortium's
coordinadng office, located at \\�ilLam Mitchell College of Law in
St. Paul, Minnesota, Eelds xequests Eox 1eg11 tcchnical xssistance and
coordinates the deli�-ery of services by the collaboxating legal xesouxce
centexs.Legal rechnical assistance uidudes l�elp�vidi legislati��e draking;
legal reseaxch, analysis and strategy; training xud presentauons;
pcepaeadon of Eriend-of-the-court legal briefs;xnd lidgadon support.
Drawing on the elpextise of its collaboxating lega] cenrexs, the
Consordum�voxks to assist comnmuities with uc�ent legal needs and
to inccease che legal resources available to the tobacco concxol
movement.
Prepaxation of t6is synopsis was suppoxted b}' the 1'oUncco Technicil Assista��ce Consoxtium,Atlanta, Geocgia,
under Grant No. 416290 fiom the Robect \\�ood]olii�sou 1'oundation, Pxinceton, Ne�v Jecse}'
���U������ C� ���u�� ���o ����� �U����9u��
Your community has a range of policy choices to consider cvhen designing a local ordinance regulating smoking
in multi-unit housing. Those policy provisions that ChangeLab Solutions highly recommends are checked
(p); those that are listed but are not checked are options a community may want to consider, depending on
political�vill and community conditions. All the options listed belo�v are part of our Model California Ordinance
Regulating Smoking in Multi-Unit Residences, available at www.changelabsolulions.org/publications/model-
ordinance-smokefree-housing. Contact us for help drafting an ordinance based on your community's choices.
Type of Multi-Unit Housing Regulated
0 A➢types of property containing 2 or more units
0 Except hotels and motels
❑ Except mobile home parks
❑ Except single-tamily homes with an in-law or second unit
❑ Except condominiums
❑ Except
Where Smoking Is Prohibited
0 Common Areas of oll types of regulated multi-unit housing
0 Indoor common areas
0 Outdoor common areas
p Except for designated "smoking areas" that meet certain criteria
p Outdoor Smokeiree Buffer Zones for oll types of regulated multi-unit housing
p Mywhere on the property of the multi-unit housing complex,including balconies or patios,�vithin 25 fee[of an enclosed
area where smoking is prohibited (e.g.,a nonsmoking unit)
❑ On neighboring property within 25 feet ot an enclosed area where smoking is proh�bited
❑ On the balcony, patio,or deck of any unit,including smoking-allowed units
0 New Units
0 100°/a of all ne�v units in all types of regulated mWti-unit housing
❑Allow a builder[o designa[e up to 10% of units as smoking-allowed
p Existing Units
❑ 100% of existing units in a condominium complex(ordinance must designate all condominium units as nonsmoking be-
cause of practical and potential legal issues in local goverrunent selecting which units may be smoking-allowed)
❑ Allow a homeowners'association to vote[o designate up to 20% of units as smoking-allowed
❑ 100% of existing units in a rentol complex
0 Allow a landlord to designate up to 20%of units as smoking-allo�ved
0 Require nonsmoking units be grouped together and physically separated from units where smoking may be allo�ved
❑✓ Phase-in period: smoking in a designated nonsmoking unit violates the law one year af[er the ordinance takes effect
Additional Provisions
[7✓ Require no-smoking lease terms in rental agreements
p Require landlord[o disclose where smoking is allowed
❑ Require landlords to submit a diagram ot smoking and nonsmoking units to (insert name of department)
0 Declare secondhand smoke a nuisance
❑ Only in a residential setting
❑ Exclude medical marijuana from regulation by the ordinance
Enforcement
0 Designa[e tha[the ordinance will be enforeed by but also enforceable by a peace officer or code enforcement officer
p Declare violations based on illegol smoking to be infractions with a fiYed fine amount of S_(cannot be more [han 5100)
❑ Declare that violation of[he ordinance constitutes a nu�sance
❑Allow private citizens to seek an injunction (an order to stop violations) and/or money damages against individuals who
violate the ordinance
Derembn 2009
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Why No-Smoking Policies Are Needed pg. 2
How to Work with Landlords, Property Managers
and Developers pg. 3
Fact Sheets pg. 5
o No-Smoking Policies Are Good for Business pg. 6
o No-Smoking Policies Are Legal pg. 7
� How to Adopt a No-Smoking Policy pg. 8
� California Apartment Association Policy Statement pg. 9
o Facts about Secondhand Smoke pg. 10
Sample Tools pg. 11
o Sample Tenant Survey pg. 12
o Sample Lease Addendum pg. 13
� Sample Letter to Tenants pg. 15
o Sample Tenant Flyer pg. 16
Additional Resources pg. 17
References pg. 18
'i .
Special thanks to the followine individuals who provided espen knowledee and feedback for thz revision of this euide.
Esther Schillec S.A.F.E. Smokefree Air for Eveq�one
Robin Salsbure.Technical Assistance Legal Center
Theresa [3oschen, RESPECT: Resources S Education Supponing People Everywhere Controlling Tobacco
Andrea Porteniec Orange County Tobacco Use Prevention Program
Joanne�Vellman-Benson, Local Progmms and Advocacy Campaigns UniL Califomia 1'obacco Control Proeram
Shirley Dellenback.Chief. Library and Infortnation Services Unit,Catifomia Tobacco Control Proeram
i
-__` . 1
/'� t� ' \
(��`�° , � Q �,`� ri N`In (�� �l���o��[�o�� l���oc�oc��
. - Ll�c� [�lc�c�dlc��l
� : � p
_ � � 11t h`o one should have to live with umvanred tobacco smoke. �1'ith most workplaces
-- ' and many public places smoke-free in California, the creation of smoke-free
Q housing is the critical next step in protecting Californians from the dangers of
secondhand smoke. Recent survey results show that California apartment residents �
i
are suffering from the effects of drifting smoke and that they want healthy living
options.
O Close to 87% • Forty-six percent of residents surveyed said that they had been exposed
of Californians to secondhand smoke in their apartments.' Exposure rates are even higher
D don i smoke and among Hispanic/La[ino renters (63%).' �
of those who
� smoke, 75%soy • Despite high levels of exposure ro tobacco smoke, few renrers complain j
they wo:dd like �o manaeement. A recent survey of seniors living in public housine found
6_ that only 12% of those exposed to smoke had complained to manaeement
to quit. ' 1
despite the fact that more than half of them had medical conditions which �
were made worse by the smoke.' �
� • Over 76% of all Califomia renters surveyed support nonsmokine sections
in apartment buildings' Support was even higher among Hispanic/La[ino
renters (82%).'
• According to the 2000 Census, more than 30% of Califomia's housing is
composed of multi-unit residences.
Owners, also, benefit from no-smoking policies. They can save money on cleanine �
and paintin� costs and avoid property damage, such as cigarette burns and
discolored appliances. No-smoking policies also reduce the risk of fire and may
qualify properties for reduced insurance rates.
� "What we a�e finding now is that many landlords are enthusiastic
about making their buildings nonsmoking. They only need to be
told that it is legal and have easy materials available to help them
go through the process."
— Esther Schiller,
The Smokefree Apartment House Registry
�
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�
L—_ i �
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C;l�e� �� �`]i �o°[� �nMuf�f� L����l��0°�1�9
pa°��OC�o°��y fMl�a���c��°� ��d1
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Serve as a resource for reliable information
�
• Build relationships with local rental o���ners and property managers.
• Listen to their percei��ed obstacles and provide information to address
their concerns. Remember that
a landlord's
• Offer [o present at local apartment association meetines. first concern rs I
business, not
• Join the local rental or apartment owners' eroup as a community member, health!
if possible.
• Place ads and submit articles in local apartment association newsletters.
• Provide samples of no-smoking lease languaee and policies.
• Connect landlords and property managers who have already adopted and I
implemented no-smokine policies with those who are interested in �
creatine them.
• Pro��ide \'o Smoking siens where possible. (Available at
Tobacco FreeCatalog.or�)
• Offer assistance to implement no-smoking policies, i.e. help owners/
manaeers map out �ti�hich units or buildin�s they should make smoke-free
firs[ (if they �vish to proceed incrementally).
Focus on key messages
No-smoking policies in multi-famil�� d�vellings are good for business.
(See fuct sheet pg. 6)
No-smoking policies in multi-famil�� dwellings are legal.
(See jacr sheet pg. 7)
Smoke-free housing is a growing movemenL ,
Many landlords and propeRy management firms in California and across the U.S.
have created no-smoking policies for their property. For a list of nonsmokine
properties by ciry in California, see www.smokefreeapartments.ore.
3
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Identify decision makers
It is impoRant to be sure that you are workine direcdy with the final decision
maker whenever possible. This means identifyine �vho has the authoriry to create
a new no-smokine policy. In most cases this is the o�aner of the property. whether
they are a "mom and pop ' owner or a large corporation that de��elops or manaees
multiple complexes. Generally, an apaRment manager that lives on the property
[f'orking and manages day-to-day issues is not the decision maker althoueh some managers
directly with the mieht feel very strongly about the advantaees of a no-smoking policy because they
decision maker, themseh�es may be suffering from a tenant's tobacco smoke. Apartment managers
genero!!v the may be willine to provide information about the owner, property manaeement
ox+�ier, will save
vo:i time and company or corporation that has responsibility for policy decisions.
efjort.
Partner with the rental housing industry
1'ou can incrcase your credibility with, and access to, landlords and property ,
managers by partnering with the rental housing industry. Recent sun�eys found ;
that landlords would be most open to infortnation on smoke-free housine that ;
, came from a respected industry source such as a housine, rental or apartment
association.`
Partner with local government
�1'ith education and support from public health advocates, local government
personnel can become effective and enereized parmers in promoting nonsmoking
multi-family housing. For background information and strateeies for partnering
� with housing specialists, plannine departments, plannine commissions, and police
departments, visit http:/hvw�v.respect-ala.org/drift.htm.
ddnp�ed�+v�h permissio��jrom RESPECT, Resw�rres and Edrrcanon Supporring People Even�chere
Conrrolling Tohacro, a pmjecr ojdre.-I meriean Lung Associarion ojthe Ensr Ban x���r respecl-aln.org.
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C��16� �[�ic���s� .
This section includes the following sample fact sheets:
I
i
• \'o-Smoking Policies Are Good for Business
' • No-Smokine Policies Are Legal
' • Ho�v to Adopt a No-Smokine Policy �
• Califomia Apartment Association Policy Statement ii
• Facts about Secondhand Smoke
i
�I
How to use these fact sheets
Handouts
These fact sheets are included as samples that you can either use as is or modify
for your individuai need. Feel free to copy them onro your own letterhead.
Handouts are a ereat �vay to deliver key information on a specific subject, without
overn-helmine your audience.
, �
Talking Points
The information on these fact sheets can also be used when communicating,
either in writine or in person, with landlords; manaeers, developers or tenants.
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[�o���o[�oo� Po�oc�oc�� ' ° � Q �� :
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More and more landlords and apartment manaeers are inrerested in appealing to -�`
the nearly 87% of Califomians who are nonsmokers, and they see the growing demand for smoke-
free housine.' Housine providers are also enjoyine the benefits of having no-smoking policies on their
property.
� Save money and protect your property
' • Cleanine costs can be 7�% less when a nonsmokine tenant moves out.' There is less need to wash
walls, replace rugs and window co��erings, and use multiple coats of paint.
I� • There is less damage to the units. Cigarettes can cause bums in carpets, vinyl, and counters, and
the smoke may discolor appliances.
� • There is less risk of fire. Smoking materials are a major cause of fires and the leadine cause of
� residential fire deaths in the U.S.' With a no-smokine policy, you may be able ro �et reduced rates
on insurance.
Reduce vacancies
• Most renters �vant nonsmoking living options. Recent surveys found that over 76% of California
renters favored requirine apartment buildings ro offer half of their units as nonsmokin�'
• Ad��ertisine ��acancies as nonsmoking �vill attract health conscious tenants.
• No-smoking policies reduce complaints among tenants about drifting smoke.
• Tenants will be happier and healthier with smoke-free air.
Protect yourself from liability
• The Califomia Air Resources Board has classified secondhand smoke as a Toxic Air Contaminant,
the same classification as most toxic automotive and industrial air pollutants.'
• Federal and sta[e fair housing laws require `"reasonable accommodations" to be made for disabled
tenants, which can include those with breathing conditions that are made worse by secondhand
smoke."
• Having a no-smokin� policy in place may limit your liability.
Advertise your nonsmoking property for FREE!
Visit www.smokefreeapartments.org. See the website for requirements and full details.
No[e:For partially smoAe-free properties,advertising"nonsmoking apartmeni'is recommendcd over"smoke-free apartment'which imphes
that your entire property,all units and all common areas ha�•e no-smoking policies.
L CaL(omia Departmrni of Hea4h Services.Tobacco Conrcol Sttnon."SmoAing prn�alence among CaLfomia Adula.1984-?006."Cali(omia Departmrn�of PubLc Healih hnpJ/
wuwdhs.n go�hobxcddocumrnt�p�ess2006PrevDacaChans pdf
? Staci Semad,'HOme is la�est are(u in figM over smoAmg,"Uostoacom,httpJlxvwbos�on com/malestare/neus/articlesRl107/I I/OSlhome is_lazm am�a m figh�_o.er
smokingC Souse quottd:Tom BmnneAe.Przsidrn[oFGuardian Pmpeny Marugement wlro estimamd SI,500 to dpn a smoAer's apartmrn�compartd with 5300 For a nonsmoAds.
3.John R Hall Jc,77¢Smoking-,llaren�(Flre Pmblem.\ational Frte Pro�tttion Association,hap://wuxnfpa o��assees/files//PDF/SmoAing�latenals5um.pdf
i Caldomia Departmrnt of Public Health.Tobacm Control Program,E�alvation Unit[Caldamia Adul�Tobacco Sunry(CATS).2006].Unpubl�shed mx�da`a
5.Cali(omu Air Resowces Boatd."Report ro[he Cali(omia Legislanue:Imimr Av Pollution in Califomia."Air Resources Board,hrtp9hwv�arb.ca.go�iresearchfindood
� a61173/fi`ulmport.Aun.
6.Fedeml NousingAa Q9S3).J?U.5 C.Secuon 36Pt;FEHA,CaI.Go�.Code$enion I?955.
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; You have the right to prohibit smoking on your property, �
inside and out.
i
� • There is no constitutional right to smoke. No couR of law has ever recognized smoking as a I
�, fundamental right or found smokers to be a protected class.'
• It is not discriminatory to have no-smoking policies for your property.'
• No-smokine policies do no[ violate a tenan['s "right to privacy."'
• No-smokina policies for apartment units are in the same category as "no pets" or"no loud noise"
rules. They are legal policies that reduce proper[y damage and protect tenants' rieht of quiet
i enjoyment.
I • No-smoking policies are legal in government-assisted and section 8 housing. The U.S.
� Department of Housing & Urban Development (HUD) has not taken a positioqon no-smoking
policies; therefore, apartment owners are free to adopt no-smokioe policies for their properties,
including policies for inside their units.'
�
It is le�al to advertise a unit as "nonsmokine."
It is legal to ask tenants to acknowledge in a Iease or month-to-month rental aereement that they
���ill not smoke in the unit (or entire property dependine on your policies) or allo�v guests [o
smoke in the unit or on your properry.
"If you decide to adopt a smoke-f�ee policy for you�apartment building, be assured that
this is not prohibited by law. A smoke-iree policy remains part of the inhe�ent rights of one '
who owns property, and should be viewed as preserving the value of you�property and a
protection of your tenants (residents).°
-Jnv R. Petterson, Real Estate Atrornev and jornrer U.S A4agistrnre Judge
L Teehmeal Ass�stance Isgnl Crnmc`There Is,�'o ConsnNUOwI Right m Smo4q'Technical Assamnce Legal Cenmr,http://tale.phlax org/pJ(files"UOi I.pd(
?.3 Rchnical Auinance Legal Crn�v."How landlords Can Pmhibit SmoAing in Rrntal Hassing'Technipl Assisiana Legal Crneer,http://ulc.phlaw.oty�pdf files�0076 pdf
4.SM1eila N41Aer,Chi<fCwrtul(or rhe Dettoi�field oRce of the U.S Depanment of Housing @ Urban De.elopmen�(HUD�,"Lener co JamezA.Bereman.J.D.'The Crnmr for
Social Gemnwloey,hny://wvvucsg.ofgfirtuges/HUD_Ol.jpg
This jac�sheet wus created to provide genera!i�jormation onlv and rs not ojjerec!or intended as legal ndvice.
7
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tVo-S�oking � Policy � �e
Y .����
Step 1 SUf'Vey �eSIdelltS (Optional. See Sample Tenant Survey.)
o Ho�v many residents allow smoking in their units (and where are the units located)?
Q o �Vhat is the demand for nonsmoking apartments?
Step 2 Decide on the best plan
o How many (and which) buildings/units should be nonsmoking?
Oo Will your no-smoking policy include outdoor common areas such as courtyards, pools, and play
O areas; as well as indoor common areas such as laundry rooms, lobbies and stairwells?
� o �'�'ill you have a designated outdoor smokine area? If so, where will it be?
, o �Vill you phase in the nonsmoking units all at once or as new residents move in?*
o «'hat action will you take for violation of the policy?
Step 3 Give notice to all tenants
o Give tenants at least 30 days notice—60 or 90 days is even better.'�
o Hold a meeting or talk to tenants indi��idually to explain the new policy.
o Send each rental unit a written notice of the new policy and post notices in all common areas.
(See Tenan! Letter and Tenant Flver.)
o Have residents sign ao agreement or addendum that oudines the new policy. (See Lease
i Addendum.)
Step 4 Implement the new policy
o Place No Smokine siens around the properry. (Cattact yoi�r counn�health deparnnen!'s tobacco
cavro!program for signs or vrsit unviv TobaccoFreeCatalog.org.)
o Indude the no-smoking policy in all new leases.
o Continue to educate tenants and let them know how to report violations.
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• \bte: Units under rent control can only be transitioned to nonsmoking status as residents move out or w•ith the H�ritten
agreement of tenants who smoke.
" For specific infortnation on how to amend various types of leases(neH�, existing, with or without consent of tenant, etcJ
see How Londlords Can Prohibit Smoking in Ren�o!Housing.Available at http://talc.phlaw.org/pdf files/0076.pdf.
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cauFOnN�a
APAHTMENT
ASSOCIATION
IPolicy Statement 12: Smoke-Free Housing Choice
�, CAA belicvcs that o�vners and managcrs oP residential rental propeny should be free to set smoking and
nonsmoking policies for[hcir rental homcs and communities. CAA believes [hat markct forces are [hc best
�I way [o designate units and [he common arcas of the property for both smokers and nonsmokers in residential
' rental housine so that all residents are able to use and enjoy their homes. CAA also believes that damage caused
, by tobacco smoking in the unit constitutcs damage beyond reasonable normal �vcar and tear, and itjustifies
a deduction from the security deposit by thc property owncr to make repairs and to clean the unit.
Background ,
Over the last decade, there has been a dramatic change in Califomian's expectations reearding exposure to �
em�ironmcntal tobacco smoke. Recent surveys indicate that over 30%of renters in Califomia prefer housine with
smoke-free areas. [n response to member inquirics and to enable the indus[ry to address this resident demand �
voluntarily, CAA has made available an Addendum for Tobacco Smoko-Free Areas. This form allows certain I
common areas, certain units, or[he entire property to be desienated as smoke-free.
CAA believes [hat restricting smoking in a Icasc is no different [han restrictions on noise, quiet hours, pool use,
pets and eucsts—these are all house policies tha[ protect residents and the o�vner's property. In addi[ion, there is
i no cons[itutional "right to smoke."According to a 1999 Legislative Counsel Opinion, "Discrimination aeainst
smokers by landbrds sen�es legitimate business interests by potentially reducing the risk of fire damage and, in
� wm, reducine insurance and maintenance costs." In addi[ion, civil rights suits in the employment context suegest
�
that smokine is not a disability and smokers are not a protected class.
� California's Civil Code Section 1950.5 allows an owner to collect a sccurity deposit from a [enant in order to
compensate the owncr for a tenant's default in the payment of rent or for, among other thines, the repair of
damaees to the premises, exclusive of normal wear and tear, caused by the tenant. The owner is also authorized by
law to use the deposit to pay for the cleaning of the unit upon the termination of the tenancy in order to retum the
uni[ [o the same icvel of cleanliness that existed at the [ime [he tenant took possession. Rcfurbishine the apartment
of a hea�ry smoker for ihe next resident al���ays requires more time and effort in repaintino (particularly surface
preparation). In many instances, carpeting, draperies, and upholstered fumiture must be replaced rather than
cleaned. CAA believes that these are damages to the unit that far cxceed normal wcar and tear.
Califomia's Labor Code Section 64045, which bars smokine in any enclosed work area, applies to common
areas of apartment or condominium buildines or complezes such as lobbies, hallways, laundry rooms, stainvays,
�� eleva[ors, and rurcation rooms. They remain subject ro the Labor Code's smoking prohibition if the areas are
� enclosed and are places of employment. CAA believes that prohibitions on smoking in othcr areas of residential
rental properties should be pan of the rental agreement rather than codified in a state or local law. This will allow
property o�vners to de��elop individualizcd policics that are appropriatc to their property and the necds of all
� residents.
t
Reprinted ividr permissiori jrom rHe California Aparrmenr Association. ��1+v:cuurret.ag
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��av���c� ����s�
This section includes the following sample tools: � '
• Tenant Survey ,
` • Lease Addendum �
� • Letter to Tenants '
• Tenant Flyer
�
How to use these tools
These tools may be given to landlords, property managers, and developers as is
for them to use as a guide to create their own documents, or you may want to _ �
use these samples to create customized materials for them that include their local
information, issues and policies.
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A survey is a great �+�ay to find out ho��� much support there already is for a —�
no-smoking policy and ro help tenants feel included in the process.
Dear Tenant,
�1'e, the mana�ement of (nume of conrp(e.i), are concemed about the health
effects of secondhand smoke and the danger of fire from lit, unattended cigaretres. �Ve are considerine
creating a no-smoking policy for some (or«!1) areas of our complex and �ve would like your feedback to
help us create the policy that will work best for aIl tenants. Your answers will be kept confidential.
I. Do you currently allow smoking in your apartment? Y / N 1j
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2. Have you experienced cigarette smoke drifting inro your apartment? Y / \
I 3. �Vould you like to ha��e a no-smoking policy for all apartments in your building? l' / N
4. �Vould you like ro have a no-smoking policy for the balconies and patios of all apartments in your
buildine? Y / N
5. \yould you like to have a no-smoking policy for the outdoor common areas such as the pool,
courtyard, and children's play area? Y / \'
6. Would you like to have a designared smoking area outside where residents and guests can smoke
without it affecting others? Y / N
Thank you for your feedback. Please retum compieted survey to �
� (lu�ldlo�-dhnanager's name) �
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Sa���� �eas� Ae��end�� U `
CALIFORNIA
APARTMENT
ASSOCIATION
Tobacco Smoke-free Areas Addendum
This document is an Addendum and is part of the Rental/Lease Agreemen[, dated
,i behveen , (Owner/AQent)
, and , (Resident) for the
�
premises located at , Unit # (if applicable) '
, CA
(Street Address) (Ciry) (Zip)
l. Purpose: The parties desire to mitigate (i) the irritation and known health effects of secondhand smoke;
(ii) the increased maintenance, deaning, and redecorating costs from smoking; (iii) the increased risk of
fire from smoking; and (iv) the high cos[s of fire insurance for properties where smoking is permitted.
2. Smoke-free Areas: Resident agrees and acl:nowledges that each of the followin� areas of the properry
have been desienated as a smoke-free living environment and Resident and members of Resident's
household shall not smoke tobacco products in these areas, nor shall Resident pertnit any Quest or visitor
under the control of Resident to do so.
Check one:
_ Smokine of tobacco products is prohibited on the entire property, including individual units,
common areas, every building and adjoinino orounds.
_ Smokin� of tobacco products is prohibited on the entire property except the following areas:
3. Promotion of No-Smoking Policy: Resident shall inform his or her guest of the Smoke-Free Areas.
+ Resident shall promptly notify O�vner/Agent in writing of any incident where tobacco smoke is mierating
into Resident's unit from sources outside of Resident's Unit.
I 4. Owner/Agent Not Guarantor of Smoke-Free Environmenh Resident acknowledees that Owner/
Agent's adoption of Smoke-Free Areas, does not make the OwnedAgent the �uarantor of the Resident's
health or of the smoke-free condition of the areas listed in Section 2 above. However, O�vnedAeent
shall take reasonable steps to enforce this addendum. O�vned Agent shall not be required to take steps in
response to smokine unless Owner/Agent has actual knowledge or has been provided written notice. h
5. Other Residents Are Third Party Beneficiaries of this Addendum: Owner/Agent and Resident agree
that the other Residents of the property are the third party beneficiaries of this Addendum. A Resident may
Caljorn�aApartmenrdssceinlionApprovedForm, wu�ctnnnetory Form3J.ORo•ised—//Oi—O?OOi—dllRighrsReserned � 3
sue another Resident to enforce this Addendum but does not ha��e the right to evict another Resident. Any
lawsuit between Residen[s reearding this Addendum shall not create a presumption that the O���nedAQent
has breached this Addendum.
6. Efi'ect of Bmach: A breach of this Addendum by the Resident shall be deemed a materia) breach of the
Lease/Rental Agreement and grounds for immediate termination of the Lease/Rental Aereement by the
Owner/Aeent. V
7. Disclaimer: Resident acl:nowledges that this Addendum and Owner/Agent's efforts to designate
Smoke-Free Areas do not io any way change the standard of care that the OwnedAgent �vould have to any
Resident household ro render buildings and premises desienated as smoke-free any safer, more habitable, h
or improved in tertns of air quality than any other rental premises. OwnedAgent specifically disclaims
any implied or espress warranties that the building common areas or Residenf's premises will have any
hieher or improved air quality standards than any other rental property. O���ner/Agent cannot and does
not warrant or promise that the Rental Premises or any other portion of the property indudine common +
areas �vill be free from secondhand smoke. Resident acknowledges that OwnedAeenrs ability to police, �
monitor or enforce this Addendum is dependen[ in sienificant part on voluntary compliance by Resident
and Resident's guests.
�
8. Effect on Current Tenants: Resident acknowledges that current Residents of the rental communiry
under a prior Lease/Rental Agreement will not be immediately subject to the terms of this Addendum. As �
Residents mo��e out, or enter into new Leases/Rental Agreements, this Addendum will become effective
for their unit or new agreement. .�
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The undersiened Resident(s) acknowledge(s) ha��ing read and understood the foregoine. �
Date Resident
Date Resident
i
Date Resident �
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Date Resident �
Date Owner/Agent �
Complete instructions for using and implementing this form can be found at I
http://www.smokefreeapartments.org/caa_smoking_instructions.pdf.
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CalifarniaApurrmenlAss�iariandpprucedForm w�n.:coanetory Form3J.ORerised—!/Oi—BIOOi—AI(R�yhnResen•ed I
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Date: -
Dear Residenr.
IWe are pleased that you have chosen to live at (acldress of the
properR�). Our goal is to provide you with a pleasant and healthy living environment. �Ve are pleased to •
announce that we will now offer a new amenity: nonsmokine apartments and nonsmokine common areas.
We ha��e learned that many apartment owners are creating no-smoking policies for their properties. The
reason is that secondhand tobacco smoke is a health hazard, especially for children, the elderly, and people
with chronic illnesses.
Studies ha��e shown that tobacco smoke can travel from the end of lit ciearettes to all other areas of a
building. It can tra��el throueh gaps left around the plumbing and electrical fixtures, through cabinets
and closets, ventilation systems and under doors. It can aiso enter neighbors' windows and doors from
residents smokine on patios, balconies, and in courryards.
The Califomia Air Resources Board has dassified secondhand smoke as a Toxic Air Contaminant that
may cause and/or contribute to death or serious illness. The Suroeon General has stated that breathing
even a litde secondhand smoke can be harmful to your health. Also, lit cigarettes are the leading cause of
fire death and the third leadine cause of fire injuries in the U.S., according to the National Fire Protection
Association.
For these reasons we have decided to adopt a no-smoking policy for our entire buildine, including inside
the apartments, starting on (date). Smokine �vill not be allowed in indoor common
areas including the lobby, halls, and laundry room, or in outdoor common areas including the pool area,
playground, and courryard. It will also not be allowed in individual apartment units, balconies or patios.
However, smoking wiil still be allowed in (designuled smoking ureu). This new
rule will be enforced as any other house rule or lease addendum.
Please contact (munuger) for more information about the new policy.
1 Sincerely, Manaeement ,
Crented br The Smokejree Apartment House Regrstry
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What Tenants Should Know about the No-Smoking Rule at
(your property's name]
Write your rule l:ere. Include tlre effective date, and penalties for �:on-
compliafrce.
A no-smoking rule will do lots of good things, but here are the top
3 reasons why iYs a good idea: ,
�
o You �vill be safer from fires. ;
o The air will be healthier for everybody who lives here. �
o There will be less damage to the units. �
� _
Our no-smoking rule is not a `'no-smoker rule.° Smokers �vill simply have to step outside to the
designared area. We understand that this may be an incon��enience for you, and we appreciate
your help in keepin, our property clean and safe for all our tenants. �
Facts about smoking and secondhand smoke:
• Secondhand smoke has over 4000 chemicals, and over 50 of them cause cancer. The
chemicals include arsenic, formaldehyde, carbon monoxide, and benzene.
• Secondhand smoke is especially bad for children, the elderly, and people with health
problems.
• Ventilation systems cannot remove the cancer-causine chemicals in secondhand smoke. 1
J
• Smokine is the number one cause of residential fire deaths. I
�i
For any questions on this new policy please contact your manager, John Smith, at 888-8000. �
I
Reprinted with permissron jronr dre Portlond-I�oncoaver,tlerro.�freo Smokejree Housutg Project.
x�.+nv.smokejreehoasrngN{Y.com
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California Apartment Association w������.caanet.org
Provides educational and legal information for apartment owners and managers. Includes sample forms
such as lease addendums for download by members. Phone: (800) 967-4222 �
�� California Smokers' Hclpline �aw�r�.californiasmokershelpline.org
i The Helpline offers free cessation support for all Californians. Landlords or manaeers may want to post
Helpline numbers or make them available to tenants �vho are thinking about quittine tobacco.
i Enelish: (800) 662-8857 Spanish: (300) 4�6-6336 Korean: (800) »6-»64
� Viemamese: (800) 778-8440 Mandarin & Cantonese: (800) 838-89U
� Chewine Tobacco: (300) 344-2439 Hearine [mpaired (TDD/TTY): (800) 933-4833
' California's Clean Air Project http://ccap.etr.org
iOffers assis[ance related ro secondhand smoke issues to local tobacco control programs, members of
, the hospitaliry and housin� industry, policymakers, law enforcement agencies, and the eeneral public
i throughout the state. Phone: (916) 452-306�
RESPECT «�ww.respect-ala.org
A program of[he American Lung Association of the East Bay providing public heal[h aeencies and i
community-based organizations with resources to address secondhand smoke. Includes background
information. surveys, and rools for workine with landlords and managers to create smoke-free housing.
Phone: (916) 739-892�; emaiL' respect@jps.net ,
Technical Assistance Legal Center (TALC) �rww.phi.org/talc
Pro��ides free leeal technical assistance to CTCP funded projects on a wide range of tobacco control
policies includine smoke-free housing. TALC has model policies, ordinances, fact sheets, and summary
papers on a variety of robacco control issues available on its website.
i
Phone: (�10) 444-82�2, emaiL talc c�phi.org
The Smokefree Apartment Housc Registr�� wwwsmokefreeapartments.org
j Indudes information for property managers, landlords, and tenants on smoke-free housine. Renters may
� search the list of nonsmokin� housing available in Califomia. O�aners of nonsmoking housin� may list
their vacancies for free (see site for details and requirements). Phone: (S 1 S) 363-4220,
IemaiL smokefreeapartments@pacificnet.net
The Smoke-Free Environments Law Project www.mismokefreeapartmenLorg
A user-friendly site with extensive information and tools for both landlords and tenants.
Phone: (734) 66�-1126; emaiL sfelp@tcsg.ore
Tobacco Education Clearinghouse of California ��•w�r.TobaccoFreeCatalog.org
+ Califomia's premier clearinghouse for tobacco education materials offering over 450 hieh qualiry,
ieducational products, erpert I:no�vledee and services, and online resources.
� Phone: (800) 2�3-9090; emaiL• teccorder@tecc.org
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Secondhand Smoke
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Have you ever tried to take a breath of When someone smokes around a child,
nice clean air and instead inhaled smelly, that child is smoking too. Because their
dirty smoke exhaled from a smoker? You bodies are small and still growing,
are not alone. Each day millions of people secondhand smoke hurts babies and
breathe in secondhand smoke. children more than adults.
Secondhand smoke is the smoke exhaled ♦ Children around secondhand smoke
by a smoker. It is also the unfiltered are sick more often and have more
smoke from the burning tobacco in a hospitalizations.
cigarette, pipe or cigar. ♦ Pregnant women exposed to tobacco
smoke have a higher rate of miscarriage,
stillbirth or low weight babies.
� • • � You can help by asking people not to
- smoke around children and pregnant
women.
Not only does
secondhand smoke
•` stink, but it:
'� ' ' ♦ Makes your eyes �
�\ � water, your throat �
burn, and can
make you wheeze �
_ . and cough. �
♦ Can trigger allergy and asthma attacks.
♦ Can cause cancer, lung and heart
disease.
♦ Kills people who don't smoke. �
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Breathing second- Everyone has the right to breathe smoke-
hand smoke, even free clean air. Here is a list of things you
for a short time, is � can do to protect yourself, your friends
toxic. � and your loved ones from secondhand
♦ lust half an __ smoke.
hour of being ♦ Tell smokers not to smoke in your
around second- home or car. Put up signs to show
hand smoke they are smoke-free.
causes heart damage !ik= ♦ Tell family, friends or co-workers that
regular smokers. you do not want them to smoke
♦ Secondhand smoke is the third leading around you.
cause of preventabfe death in the US. ♦ Choose nonsmoking areas of
It kills 53,000 nonsmokers a year. restaurants and bars in states that
♦ The unfiltered secondhand smoke allow smoking.
from burning tobacco contains up to ♦ Ask community organizations to plan
100 times more cancer-causing events that are smoke-free both inside
chemicals than smoke inhaled directly and outside.
through cigarettes.
♦ If you work around secondhand
smoke, you are 34% more likely to Benefit�of a S�«oke-FreE
get lung cancer. Hon+e and Cor
♦ If you are currently exposed to ♦ You, your family, friends and
secondhand smoke, you have a 20%
children will breathe easier.
higher death rate from heart disease. ♦ Your hair, clothes, furniture and
car will smell fresher and cleaner.
♦ Your food will taste better.
A smoke-filled room
♦ You and your family will have
can have up to six times as fewer colds and illnesses.
much pollufion as a ♦ You will be less likely to get
busy h►ghway! cancer or heart disease.
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California Smokers' Helpline
1 -800-NO-BUTTS �
(1-800-662-8887) I
National Quitline
1 -800-QU IT-NOW
(1-800-784-8669)
American Lung Association i
1 -S00-LUNG-USA j
(1-800-586-4872) �
American Cancer Society
1 -800-ACS-2345 �
(1-800-227-2345) �
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� 2008.Calrfomia Departmem of Public Health. ;
Funded under contract#02-25400.
Distributed by the Tobacco Education Cleannghouse of Calrfomia
www.TobaccoFreeCatalog.org
1622-8/1 1
� AMERICAN LUNG ASSOCIATION�
IN CAUiORNIR
Ofelia Alvarado, MA, CHES
Advo<acy Dlrecmr
Direct 679.683.75X7 2750 Fourth Avenue
Fax 619.297.8402 San�iego.CA 92103
Email pfelia.qharado�lung.orq www.lurg.org/califomia