THERE IS NO CONSTITUTIONAL RIGHT TO SMOKE!

SMOKE FREE HOUSING SEMINARJuly 16, 2012

Fair Housing ProjectLegal Aid Society of Palm Beach County, Inc.

Presented by: Jean Marie Middleton, Esquire WITH ASSISTANCE FROM Nazli Sonmez Matt

SO…..WHAT DOES FAIR HOUSING HAVE TO DO WITH SMOKE-FREE HOUSING????

CIVIL RIGHTS ACT 1968 was amended to include

Title VIII, Fair Housing Act (FHA)

One week after the assassination

of Martin Luther King, Jr.

Main purposes of the Act to protect tenant/buyer of a dwelling from being discriminated

by seller/landlord by making it unlawful for a person or entity to:

Refuse or deny to sell or rent a dwelling after a bona-fide offer.

Refuse or deny to negotiate to sell or rent a dwelling after a bona-fide offer.

Refuse or deny to make available of a dwelling after a bona-fide offer.

Discriminate in the terms, conditions, or privileges of sale or rental of a dwelling.

Who is protected?protected classes include:Race, Color,Natural origin,Religion,Gender, Disability, and,Familial status.

UNDER FHASMOKERS ARE NOT A PROTECTED CLASS

IN FLORIDASMOKERS ARE NOT A PROTECTED CLASS EITHER

FLORIDA CLEAN INDOOR AIR ACT

Prohibition.—A person may not smoke in an enclosed indoor workplace, except as otherwise provided in s. 386.2045.

Florida Clean Indoor Air Act was enacted in 1985.

Legislative intent was to protect people from health hazards of second-hand tobacco smoking and to implement a constitutional health initiative.

In November 2002, 71% of Florida residents voted for a constitutional amendment to prohibit smoking in all enclosed indoor workplaces.

The smoke-free law became effective July 1, 2003.

2011 Amendment to Florida Clean Indoor Air Act

Chapter 2011-108, Laws of Florida amended the Indoor Air Act to clarify that the regulation of smoking is preempted to the STATE and any smoking regulations of municipalities or county ordinances cannot be broader than the state Act

Outdoor smoking on school district property was specifically exempted from the Act.

Does Florida Clean Indoor Air Act prohibit smoking in residences?Florida Clean Indoor Air Act does

NOT prohibit smoking in private residences.

Smoking is not permitted when the private residence is used commercially for the purpose of:◦Child care◦Adult care◦Health care

AGO 2011-15 & OUTDOOR SMOKING

Current AG- Pam Bondi opines that the St. Johns River Water Management District CANNOT adopt a policy to prohibit smoking at outdoor locations by all persons.

HOWEVER, they could regulate outdoor smoking by their employees as a personnel matter.

The State Clean Indoor Air Act preempts municipal or local policies

HOW CAN HUD ENCOURAGE SMOKE FREE HOUSING?FEDERAL POLICIES ARE NOT SUBJECT

TO STATE LIMITATIONS

FEDERAL AGENCIES LIKE HUD have authority over public housing

Public Housing Authorities and recipients of HUD funds for housing

BECAUSE Florida Indoor Clean Air Act does not cover private residences HUD policies can.

WHAT CAN A LANDLORD OR PROPERTY MANAGER DO?

A landlord or property manager can adopt 100% smoke-free policy.

A landlord or property manager can enforce a smoke-free requirement through the lease agreement.

LEGALITIES OF A SMOKE FREE POLICY

Q. is there a right to smoke?

A. no legally protected right to smoke so housing providers can legally create smoke free policies in:common areas, units; any other part of the property that they own or control.

There is a fundamental right of privacy; BUTThe right to privacy does NOT include smoking

Q. Are smoke free laws discriminatory against people who smoke?

A. No. smokers are not a protected class and smoking is not a protected activity

CONSEQUENSES FOR PROVIDERS WHO DON’T HAVE SMOKE FREE POLICES

1. Tenants w/ disabilities may have special

rights 2. If their disability is worse by secondhand smoke, they can

request a reasonable accommodation 3. Subjects housing providers to future liabilities

DISCLOSUREof smoke-free policies requiredLegally required by some states [CA Civil Code Section 1947.5(b)]Every prospective tenant must be

notified where smoking is and is NOT permitted

The policy Must be in all leasesbe very careful with language translations- if not careful it will translate that people “ARE free to smoke”.

RECENT CASES

City of North Miami vs. Kurtz- (Miami) “right to smoke is not included within the penumbra of fundamental rights protected under [the federal constitution’s privacy provisions]”

Merrill v. Bosser- (Broward) defendant liable where amount of smoke gave rise to a disturbance of possession…due to excessive secondhand smoke

OTHER STATESIn Re: HUD and Kirk & Guilford Management Corp. and Park Towers Apts. – (IL) conciliation agreement requiring no-smoking policy; violator could be evicted

Gainsborough St. Realty Trust v. Haile-(Mass.)-Landlord suing for non-payment of rent lost. Held: amount of smoke from bar below Haile’s apartment deemed “unfit for smokers & nonsmokers alike”.

McCormick v. Moran-(NY) Held: excessive smoking...caused tobacco smoke residue…creating offensive odor and a potential health risk that may arise to others who may use the premises.”

CASES CONTINUEDHeck v. Whitehurst Co.- (Ohio) landlord failed to make repairs to keep apartment in a “fair and habitable condition”. Ordered to make repairs w/n 21 days; abate rent by 50% & pay tenant $639.

Zangrando v. Kuder-(Ohio) Plaintiff asked defendant to move 30 feet away to smoke. Defendant refused and condo association would not get involved. After defendant moved away, plaintiff filed suit and lost.

Harwood Capital Corp. v. Carey (Mass.)- “jury finds heavy smoking to be gounds for eviction.” Landlord breached lease prohibiting tenants from creating a nuisance or engaging in activity that substantially interfered in the rights of other building occupants.

Poyck v. Bryant, et al (NY) Held: “secondhand smoke is just as insidious and invasive as …noxious odors, smoke odors, chemical fumes, excessive noise and water leaks and extreme dust penetration.”

CONCLUSIONSmoking is not a constitutional or legal

rightNo federal, state or local laws prohibit

landlord, housing authority or condominium association from adopting 100% smoke free policies.

Smoke-Free housing policies DO NOT infringe on individual rights

Smokers are NOT a protected classSmoke-Free policies are like any other

lease agreement provision