More Governments Ban Smoking in Private Apartments // Many Reasons For Movement, and Little Opposition
2012-03-27 17:03:13 - Several jurisdictions - including Huntington Park, Sonoma County, Compton, Baldwin Park, Glendale, Pasadena and Calabasas (all in California) - as well as a much larger number of public housing commissions and authorities, have banned smoking in private apartment units; the latest to move in that direction is Elk Grove, CA, which precipitated a very spirited debate on "Fox and Friends" yesterday morning.
But, contrary to claims made during the debate, apartment owners and their trade associations aren't necessary opposed to such governmental smoking bans, since it creates a "level playing field" where everyone is equal, can save large amounts of money, removes pressure - and sometimes even law suits - over bans in specific situations, has growing support, and probably is the
wave of the future, says public interest law professor John Banzhaf, who helped start the movement, and who has played a major role in the bans.
Fox News actually asked whether such bans are even legal, laughs Banzhaf, who helped start the movement to ban smoking in apartments and other residences, and who has helped put in place hundreds if not thousands of smoking bans in apartments over the course of more than 20 years.
An a recent example of an apartment smoking ban, Huntington Park, CA, has banned any smoking inside private apartment units. The action was supported by a realty property management company, and by the Apartment Association of Southern California, which said that “landlords will benefit from the ban as they will not have to spend as much getting a unit ready for a new tenant if they don't have to get the smoke odor out of draperies, stuffed furniture and carpets,” adding that “it’s impossible to handle drifting smoke.” wavenewspapers.com/news/local/the_press/article_71180b7c-695c-11 ..
Indeed, as the Apartment Association of Southern California notes: "Huntington Park will join a growing number of cities to establish no smoking laws in Southern California including Compton, Baldwin Park, Glendale, Pasadena and Calabasas. These cities do not require the landlords to be the Smoking Police; rather, the tenants in all cases hold each other accountable with citations/tickets written by the police or code enforcement directly to the transgressor. It is estimated that owners spend more than $4800 in cleaning costs when turning over an apartment from smoking tenants to a new tenancy." www.apt-assoc.com/index.php?option=com_content&view=article&id=5 ..
Another major jurisdiction which recently voted to ban smoking in individual apartment units is Santa Clara, CA. Beginning February 9, 2012, smoking in multi-unit apartment buildings is no longer allowed in any units, and smoking on the property will be permitted only in designated smoking areas. www.caanet.org/WorkArea/DownloadAsset.aspx?id=1433
Prof. Banzhaf, who has argued for the bans, notes that secondhand tobacco smoke - which kills over 50,000 Americans each year, including more than 1000 children - has been officially classified as a "known human carcinogen" in exactly the same category as as asbestos, benzene, and Polonium-210, and that the U.S. Surgeon General has warned that there is no safe lower level of exposure below which it would not be a cancer risk.
"Renters should not be forced, as a condition of their tenancy, to inhale any cancer-causing substance, whether its asbestos, benzene, or tobacco smoke," argues Banzhaf, noting that tobacco smoke kills far more Americans than exposure to asbestos, benzene, and all other regulated carcinogens combined. Smoking is also the major cause of cigarette fire deaths in apartment buildings. So the issue is one of fundamental safety and health, not simply trying to cater to the preferences of renters regarding issues like whether other tenants can have pets, play pianos, etc., he argues.
As the Surgeon General, the American Medical Association, and the American Cancer Society among many others have all reported, even the small amount of smoke which may drift or recirculate into adjoining apartments presents the risk of cancer to totally innocent third parties who have not chosen to accept it, and who derive no benefit from it.
Unlike the small cancer-causing risks from X-rays or long-distance flights which adults are free to assume and accept because it provides an individual benefit to them; or the very small cancer risk from inhaling the fumes from trucks, from which we all derive benefit, and which are inevitable in our modern society; nonsmoking apartment dwellers - including many children - derive no benefits whatsoever from their neighbors' smoking, nor is it some inevitable health hazard and fire-safety risk which we are all forced to accept in any modern society.
Since secondhand tobacco smoke is far more deadly than all other known carcinogens, it is clear that the government not only should - but almost certainly would - act if, for example:
* an apartment dweller decided to experiment with Polonium 210 in his apartment so that there was even a small chance that a minute amount of it would be released into the air,
* a condo owner was cleaning engine parts with benzene in his apartment unit, and the pungent fumes could be smelled in an adjacent apartment, or
* an apartment resident was sanding down old brake drums in his apartment, and releasing into the air even minute amounts of dust containing asbestos.
Indeed, federal regulations severely restrict anything that might release many cancer-causing asbestos into the air, including even outdoor air where it is very quickly dissipated. Thus, buildings cannot undergo any renovations involving asbestos when any tenants are present, workers working around asbestos must wear special protective breathing gear, and the building must be covered with huge plastic sheeting to protect those on the sidewalk outside from inhaling even minute amounts of asbestos dust in the few seconds they walk by. Nonsmoking apartment dwellers should have the same protection from secondhand tobacco smoke, especially since exposure can be reduced to zero at virtually no cost.
Those who argue that the government should not be involved, and that the matter should be left up to the individual property owners to decide, are mistakenly treating the issue as one of consumer preference (which can be left to individual property owners) rather than as a major health hazard where governments traditionally have acted and should act.
While it may be appropriate to let property owners decide, based upon marketplace demand, whether to permit pets in apartments, the playing of musical instruments after midnight, etc., it is certainly not appropriate to let property owners permit renters to carry out activities which endanger the health - and even potentially the lives - of innocent people in neighboring apartments. Profit and preferences can't trump illness and even death, he maintains.
Smoking, says Banzhaf, is no longer seen as a right, but rather as a privilege which must yield to protecting the health of nonsmokers. That's why he has been successful in supporting
* legislation to ban smoking outdoors (including on sidewalks and private parking lots) initially in Calabasas (CA) and now in more than a dozen communities;
of Comprehensive Outdoor Secondhand Smoke Ordinances February 2012.pdf
* bans on smoking in apartments, condos, and even private residences where foster children live (which grew out of his legal work);
* law suits (many successful) against smoking in apartments when it drifts or recirculates into adjoining apartments, condos, etc. (some using his legal theories);
* court orders in the majority of states which prohibit smoking in apartments, condos, and homes to protect children involved in custody proceedings (his original initiative); communities.washingtontimes.com/neighborhood/legally-speaking/20 ..
* legal actions directed against thirdhand tobacco smoke which is especially dangerous to children (a/k/a/ tobacco smoke residue); AND
* laws to ban smoking in cars when children are present. query.nytimes.com/gst/fullpage.html?res=9B0DEEDE173AF93BA25750C0 ..
In short, if a man's home was ever his castle where he could smoke if he wished, that principle no longer applies in the 21st century, says Prof. Banzhaf.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW, Suite S402
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418