"Get your ashes out of my living room!": Controlling tobacco smoke in multi-unit residential housing

Rutgers Law Review

Volumn 54, Issue 1, 2001, Pages 135-188

  Ezra, David B ^a  

^a Berger Kahn Shafton Moss Figler Simon and Gladstone ^*  (Norway)

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EID: 0141859788     PISSN: 00360465     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (409)

1. California diners rarely hear this question. Since 1994 California has prohibited smoking in the large majority of enclosed places where people work. CAL. LAB. CODE § 6404.5 (West Supp. 2001). In 1998, these restrictions were extended to bars and taverns. Id. § 6404.5(f). The law was intended to protect workers who would otherwise be forced to inhale secondhand smoke. Studies suggest that bar workers inhale up to six times more secondhand smoke than office workers and, as compared to the general public, food service workers may be one and a half times as likely to develop lung cancer. See Amanda Husted & Lillian Lee Kim, Bar, Restaurant Workers More Likely to Develop Lung Cancer, Study Says, ATLANTA J. & CONST., July 28, 1993, at B4.
2. For an excellent discussion of how California's broad workplace smoking bans came to be, see STANTON A. GLANTZ & EDITH D. BALBACH, TOBACCO WAR: INSIDE THE CALIFORNIA BATTLES 217-34 (2000). But in other states segregation is still the rule. For example, a Michigan appellate court recently ruled that its municipalities could not prohibit smoking in restaurants. Mich. Rest. Ass'n v. City of Marquette, 626 N.W.2d 418 (Mich. Ct. App. 2001). The court decided that a state law allowing certain restaurants to designate up to 50% of seating as non-smoking pre-empts local ordinances that would ban restaurant smoking altogether. Id. at 422 .
3. See, e.g., Edmund Newton, Restaurants to City Council: Butt out, L.A. TIMES, Apr. 23, 1992, at J7 (reporting on the vehement opposition by restaurant owners to restaurant smoking restrictions).
4. See, e.g., Gasper v. La. Stadium & Exposition Dist., 418 F. Supp. 716, 722 (E.D. La. 1976) (holding that there is no constitutional right to breathe smoke-free air), aff'd, 577 F.2d 897 (5th Cir. 1978).
5. Many law review articles analyze workplace smoking issues. For two different perspectives, see David B. Ezra, "Get off Your Butts": The Employer's Right to Regulate Employee Smoking, 60 TENN. L. REV. 905, 952-53 (1993) [hereinafter Ezra, Get off Your Butts] (arguing that effective and appropriate employer solutions to workplace smoking can range from partial to complete restrictions);
6. John C. Fox, An Assessment of the Current Legal Climate Concerning Smoking in the Workplace, 13 ST. LOUIS U. PUB. L. REV. 591, 591-92, 633-34 (1994) (noting that federal and state statutes and case law rarely lead to successful claims by anti-smoking advocates, and that an employer's best course of action is to supply an adequately ventilated environment and accommodate objecting non-smokers).
7. Even with smoking largely prohibited on commercial airline flights, the conflict continues. For example, in April 2001, a United Airlines flight had detoured 1100 miles to remove two twin sisters who became unruly during a flight to China. Kim Murphy, Terror Twins Cool Their Jets in an Alaskan Jail, L.A. TIMES, May 13, 2001, at A12. The situation got out of hand after one of the young women said she needed a cigarette so badly she was going to get off the plane (while the plane was in flight over the Pacific Ocean).
8. Kim Murphy, Terror Twins Cool Their Jets in an Alaskan Jail, L.A. TIMES, 2001, A12. Id. A flight attendant became concerned about the possible mid-flight opening of a door that she confronted the woman and was allegedly hit in the nose.
9. Kim Murphy, Terror Twins Cool Their Jets in an Alaskan Jail, L.A. TIMES, 2001, A12. Id. An off-duty piolot and other attendants were also attacked.
10. Kim Murphy, Terror Twins Cool Their Jets in an Alaskan Jail, L.A. TIMES, 2001, A12. Id. The plane detoured to make an unscheduled landing in Anchorage, Alaska, where criminal charges were initiated against the two women.
11. Kim Murphy, Terror Twins Cool Their Jets in an Alaskan Jail, L.A. TIMES, 2001, A12. Id.
12. ETS commonly refers to tobacco smoke produced by the lit end of a cigarette or exhaled by smokers. This is the "secondhand" smoke that remains in the atmosphere and affects nonsmokers (and smokers). Exposure to ETS goes by several different names, including "secondhand smoke," "involuntary smoking," and "passive smoking." Involuntary smoking best describes the phenomenon from the standpoint of the typical nonsmoker. ETS best describes the phenomenon from the standpoint of the typical smoker. I often refer to ETS as a matter of convenience, not to advocate the views of smokers or their proponents. Secondhand smoke or ETS consists of two basic components: "mainstream smoke" and "sidestream smoke." U.S. EPA, RESPIRATORY HEALTH EFFECTS OF PASSIVE SMOKING: LUNG CANCER AND OTHER DISORDERS 3-1 (1992) [hereinafter RESPIRATORY HEALTH EFFECTS OF PASSIVE SMOKING]. Mainstream smoke is inhaled, passed through the smoker's lungs, and then exhaled back into the atmosphere.
13. RESPIRATORY HEALTH EFFECTS OF PASSIVE SMOKING: LUNG CANCER AND OTHER DISORDERS 3-1 (1992) Id. "Sidestream smoke" is not initially inhaled by the smoker. It is the smoke that emanates directly from the lit end of a burning cigarette.
14. RESPIRATORY HEALTH EFFECTS OF PASSIVE SMOKING: LUNG CANCER AND OTHER DISORDERS 3-1 (1992) Id. Mainstream smoke can be filtered twice - once by the cigarette's filter (in most cases) and again by the smoker's lungs. Because it is largely unfiltered, sidestream smoke accounts for more than half of the particulate matter in ETS.
15. RESPIRATORY HEALTH EFFECTS OF PASSIVE SMOKING: LUNG CANCER AND OTHER DISORDERS 3-1 (1992) Id. Chemically, mainstream and sidestream smoke are similar. Id. at 3-4. But sidestream smoke has higher concentrations of compounds that are considered dangerous.
16. PUB. HEALTH SERV., U.S. DEP'T OF HEALTH & HUMAN SERVS., "THE HEALTH CONSEQUENCES OF INVOLUNTARY SMOKING": A REPORT OF THE SURGEON GENERAL 125-37 (1986) [hereinafter INVOLUNTARY SMOKING].
17. For a general discussion of nonsmokers' efforts to avoid exposure to secondhand smoke, see STEVE ALLEN & BILL ADLER, JR., THE PASSIONATE NONSMOKER'S BILL OF RIGHTS: THE FIRST GUIDE TO ENACTING NONSMOKING LEGISLATION (1989).
18. See, e.g., G. Robert Mitchell, Smoking in the Workplace: A Conflict Between Personal Rights and Economic Realities, 19 LAW & PSYCHOL. REV. 217, 229 (1995) (detailing Honeywell Inc.'s company policy banning smoking inside its Minnesota buildings, implemented in response to an employee poll).
19. Whole communities have even tried to ban smoking entirely. See Jeff Kass, Smoking Ban Catches New Fire in Rolling Hills, L.A. TIMES, Aug. 14, 1994, at B1.
20. The small fire hazard associated with smoking apparently motivated the ban. Jeff Kass, Smoking Ban Catches New Fire in Rolling Hills, L.A. TIMES, 1994, B1. Id.
21. See Donald W. Garner, Protecting Job Opportunities of Smokers: Fair Treatment for the New Minority, 23 SETON HALL L. REV. 417, 418 (1993). On November 20, 2001, the Montgomery County Council in Maryland approved a measure that would allow fines of up to $750 when tobacco smoke affects a neighbor's property.
22. Maryland County Curbs Smoking at Home, L.A. TIMES, Nov. 21, 2001, at A30. An R.J. Reynolds' spokesperson said the measure would be "burdensome for property owners" if it is signed into law.
23. Maryland County Curbs Smoking at Home, L.A. TIMES, 2001, A30. Id.
24. Despite acknowledging that the law prohibits or restricts any number of activities that can occur in the home, some commentators still argue that the right to smoke tobacco products in one's own home should be treated as sacrosanct. See, e.g., Ann H. Zgrodnik, Comment, Smoking Discrimination: Invading an Individual's Right to Privacy in the Home and in the Workplace, 21 OHIO N.U. L. REV. 1227, 1247-48, 1254 (1995) (arguing for a balancing of the rights of smokers and non-smokers within the context of privacy law).
25. See P. Michael Nagle & Craig B. Zaller, Smoke Enders, COMMON GROUND, Mar./Apr. 1997, at 39 ("[C]ommunity associations . . . may be the next battlefield in the war against smoking.").
26. By 1998 the Wall Street Journal could declare "where there is smoke, there is a neighbor's lawsuit." Erin White, Today, Where There's Smoke, There's a Neighbor's Lawsuit, WALL ST. J., July 13, 1998, at B1 (describing pending litigation involving residential smoking conflicts and even conflicts between tenants in major commercial buildings).
27. See Leta Herman, Tenants Now Demand Smoke-Free Units - and Get Them, L.A. TIMES, Aug. 13, 2000, at K16.
28. Bernadette Tansey, In Pursuit of Smoke-Free Living Space, S.F. CHRON., June 28, 1999, at A1
29. Id. at A13.
30. Id.
31. See, e.g., California Cities Might Ban Smoking in Apartments, 16 Tobacco Litig. Rep. (Andrews Pub., Inc.) No. 4, at 11 (Jan. 12, 2001). California's Legislative Counsel says "[a] local ordinance that authorizes residential rental agreements to include a prohibition on, or the allowance of, smoking tobacco products within the rental unit would not be preempted by state law." Opinion Letter from Bion M. Gregory, Legislative Counsel to the Honorable Tom Torlakson, California State Assemblymember (Sept. 23, 1999) (on file with author) (discussing Residential Rental Property No. 21547).
32. UTAH CODE ANN. § 57-8-16 (7)(b) (2000).
33. UTAH CODE ANN. § 57-22-5 (1)(h) (2000).
34. MINN. STAT. §§ 144.413-415 (2000); MINN. R. 4620.1400 (2000); MINN. DEP'T OF HEALTH, Smoking in Rental Apartment Buildings, available at http://www.health.state.mn.us/divs/eh/indoorair/mciaa/aptbldg.html (last visited Feb. 10, 2002).
35. UTAH CODE ANN. § 78-38-1(3)-(4) (Supp. 2001) provides: (3) A nuisance under this section includes tobacco smoke that drifts into any residential unit a person rents, leases, or owns, from another residential or commercial unit and this smoke: (a) drifts in more than once in each of two or more consecutive sevenday periods; and (b) creates any of the conditions under Subsection (1). (4) Subsection (3) does not apply to: (a) residential rental units available for temporary rental, such as for vacations, or available for only 30 or fewer days at a time; or (b) hotel or motel rooms.
36. A recent Utah condominium dispute illustrated this sentiment. After moving into their new condominium unit, Matthew and Amanda Parrish immediately started waking up to "the strong smell of cigarette smoke." Geoffrey Fattah, Cigarette Smoke Fuels Lawsuit Against Neighbor, STANDARD-EXAMINER (Ogden, Utah), Mar. 30, 1999, available at http://www.psycom.com/foc/news/eviction.html. Doug McFarlane was a 30-year smoker who rented a nearby unit. The Parrishes sued and McFarlane was evicted.
37. Geoffrey Fattah, Cigarette Smoke Fuels Lawsuit Against Neighbor, STANDARD-EXAMINER 1999, Id. But in defending his conduct, McFarlane claimed "[y]ou've got the right to do what you want to do within your unit as long as it's legal."
38. Geoffrey Fattah, Cigarette Smoke Fuels Lawsuit Against Neighbor, STANDARD-EXAMINER 1999, Id. Philip Morris Magazine readers probably speak for many smokers: "I like to smoke. I will continue to smoke until I feel I want to quit. I have always respected the public places that have 'No Smoking' signs. But if there are no signs, I light up, and no one is going to tell me in a public place (especially if there is no sign), to put it out."
39. David B. Ezra, Sticks and Stones Can Break My Bones, but Tobacco Smoke Can Kill Me, 13 ST. LOUIS U. PUB. L. REV. 547, 555 n.43 (1994)
40. (quoting PM Notebook, PHILIP MORRIS MAG., Winter 1988, at 30). According to another reader: "I feel that I have a right to smoke on an airplane (and other forms of transportation), in waiting rooms, on the job, and at a decent table in a restaurant."
41. PM Notebook, PHILIP MORRIS MAG., 1988, 30. Id.
42. (citing PM Notebook, PHILIP MORRIS MAG., Fall 1988, at 26).
43. Philip Morris advocates a program called "accommodation." The nation's leading tobacco company says "accommodation" is designed to "help find comfort for everyone . . . ." The thought seems to be that if we can create physical or social structures that allow smokers to smoke without exposing nonsmokers to ETS, "public-place smoking does not have to be a contentious issue." PHILIP MORRIS, U.S.A., Accommodation: Reasonable Approaches to Public-Place Smoking, http://www.philipmorrisusa.com/DisplayPageWithTopic.asp?ID=52 (last visited Nov. 29, 2001) [hereinafter PHILIP MORRIS, U.S.A., Accommodation].
44. See, e.g., ALLEN & ADLER, supra note 7, at 29-30. R.J. Reynolds sees the issue similarly, saying "smokers should have places where they can enjoy smoking a cigarette without bothering, or being bothered by, others." R.J. REYNOLDS TOBACCO CO., Secondhand Smoke, at http://www.rjrt.com/TI/Pages/TIsecondhand_smoke.asp (last visited Feb. 10, 2002). Not surprisingly, leading tobacco companies want to maintain or extend the "right" to smoke in public. See, e.g., PHILIP MORRIS, U.S.A., Accommodation, supra note 24. Furthermore, their "accommodation" proclamations do not seem to even contemplate the thought that smokers might actually be required to refrain from smoking in their own homes.
45. See, e.g., Randall Eiger & Michael T. Folie, This Too Shall Pass, PHILIP MORRIS MAG., Summer 1991, at 20;
46. see also James M. Buchanan, Politics and Meddlesome Preferences, in CLEARING THE AIR: PERSPECTIVES ON ENVIRONMENTAL TOBACCO SMOKE 107-15 (Robert D. Tollison ed., 1988) ("Let those who would use the political process to impose their preferences on the behavior of others be wary of the threat to their own liberties. . . ."). Id. at 113. Buchanan worries that laws against smoking could be extended to "almost any activity" since all activity involves some health risk. Id. at 114.
47. Perhaps the best articulation of this extreme argument is found in JACOB SULLUM, FOR YOUR OWN GOOD: THE ANTI-SMOKING CRUSADE AND THE TYRANNY OF PUBLIC HEALTH (1998) [hereinafter SULLUM, FOR YOUR OWN GOOD]. According to Sullum, "it's a shame that no one can [permit smoking without regulation in restaurants or airplanes]. In a free society it is especially troubling that tobacco's opponents seek to foreclose these options as a way of pressuring smokers into quitting." Id. at 179.
48. Some go so far as to argue that nonsmokers want protection from tobacco smoke largely because of their "striking" failure "to understand [smoking's] appeal." JACOB SULLUM, FOR YOUR OWN GOOD: THE ANTI-SMOKING CRUSADE AND THE TYRANNY OF PUBLIC HEALTH (1998) Id.
49. See, e.g., Robert D. Tollison & Richard E. Wagner, Tobacco and Public Policy: A Constitutionalist Perspective, in SMOKING: WHO HAS THE RIGHT? (Jeffrey A. Schaler & Magda E. Schaler eds., 1998). To Tollison and Wagner the motivation behind smoking restrictions is irrelevant because smoking restrictions pose such a serious threat to individual liberty. According to the authors, "whatever the real motivation behind the movement to restrict the consumption of tobacco products, it represents a fundamental rejection of the principles of individual liberty upon which a free society is ultimately founded." Id. at 300.
50. If nicotine and other tobacco ingredients were consumed through smokeless methods (such as swallowing a pill or administering an injection), nonsmokers would not be affected. See Ezra, Get off Your Butts, supra note 4, at 951-52. There would also be little justification for most tobacco use restrictions.
51. Smokers' rights advocates compare nonsmokers to "Big Brother." See Judith Crist, Critic's Choice, PHILIP MORRIS MAG., Fall 1991, at 24. Laws protecting nonsmokers are described by the tobacco industry as the "new tyranny."
52. Common Sense, PHILIP MORRIS MAG., Spring 1991, at 23. Indeed, according to Smokers' Advocate, one of the major reasons nonsmokers seek protection from secondhand smoke is that "[a]nti-smokers believe they know what is good for us and want to restrict our behavior for 'our own good.'"
53. Top Ten Reasons Why AntiSmokers Do What They Do, SMOKERS' ADVOC., May 1992, at 4.
54. As one smoker explains, "the common law presumption is that the decision whether smoking is allowed in private homes is left in the hands of the person(s) deemed the owner(s). I suspect even the most zealous anti-smoker would be offended by a law banning smoking in private homes." Walter E. Williams, Cigarettes and Property Rights in SMOKING: WHO HAS THE RIGHT? 305-07 (Jeffrey A. Schaler & Magda E. Schaler eds., 1998). On the other hand, after advocating a "smoke-free" America by the year 2000, Dr. C. Everett Koop had to clarify that he was not calling for an end to smoking in one's own home; he was merely promoting a set of rules that would prevent smokers from lighting up "in the presence of other people without their permission."
55. C. EVERETT KOOP, KOOP: THE MEMOIRS OF AMERICA'S FAMILY DOCTOR 180 (1991).
56. See, e.g., California v. Woody, 394 P.2d 813 (Cal. 1964) (allowing ceremonial use of peyote as an exercise of religious freedom).
57. 21 U.S.C. § 841(a)(1) (1994). Federal law even prohibits the sale of devices that are designed to assist smoking of marijuana. 21 U.S.C. § 863(a)(1) (1997); see also United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483 (2001).
58. For an analysis of the legal aspects of the "right" to smoke, see for example, Molly Cochrane, Comment, The Worker's Right to a Smoke-Free Workplace, 9 U. DAYTON L. REV. 275 (1984).
59. Joseph C. Winter, Traditional Uses of Tobacco by Native Americans, in TOBACCO USE BY NATIVE NORTH AMERICANS 56-57 (Joseph C. Winter ed., 2000). Winter emphasizes tobacco's religious and ceremonial purposes in Native American cultures.
60. SUSAN WAGNER, CIGARETTE COUNTRY 14-17 (1971).
61. RONALD J. TROYER & GERALD E. MARKLE, CIGARETTES: THE BATTLE OVER SMOKING 31-47 (1982).
62. KIRKPATRICK SALE, THE CONQUEST OF PARADISE: CHRISTOPHER COLUMBUS AND THE COLUMBIAN LEGACY 262 (1990).
63. See 1 S.E. MORISON, THE OXFORD HISTORY OF THE AMERICAN PEOPLE 90 (1972) ("[Tobacco's] value for export was discovered in 1613 when John Rolfe . . . imported seed from the West Indies, crossed it with local Indian-grown tobacco, and produced a smooth smoke which captured the English market. Virginia then went tobacco-mad; it was even grown in the streets of Jamestown.").
64. RICHARD KLUGER, ASHES TO ASHES 10 (1996). Kluger notes: [w]hat most of all spared tobacco from the scourges of xenophobia and righteousness, though, was the discovery by rulers of all lands that the commodity, beyond suppression now, could greatly enrich their treasuries with serious taxes on its import and sale. And nowhere was this more so than in England, whose North American colonies had become one of the world's two prime suppliers.
65. RICHARD KLUGER, ASHES TO ASHES 1996. Id.
66. Rivka Widerman, Tobacco is a Dirty Weed. Have We Ever Liked It? A Look at Nineteenth Century Anti-Cigarette Legislation, 38 LOY. L. REV. 387, 397 (1992).
67. See SULLUM, FOR YOUR OWN GOOD, supra note 27, at 18-19.
68. This early anti-tobacco movement was apparently a response to a sharp increase in tobacco use following industrialization of the cigarette making process. See Jerry R. Brink, Comment, The Non-Smoker in Public: A Review and Analysis of Non-Smoker's Rights, 7 SAN FERN. V. L. REV. 141, 148 (1979).
69. Austin v. Tennesee, 48 S.W. 305, 306 (Tenn. 1898).
70. Id.
71. See Cassandra Tate, In the 1800's, Anti-Smoking Was a Burning Issue, SMITHSONIAN, July 1989, at 107.
72. Kansas v. Nossaman, 193 P. 347, 348 (Kan. 1920).
73. Widerman, supra note 42, at 389.
74. Id.
75. See KLUGER, supra note 41, at 22-23, 27.
76. See TARA PARKER-POPE, CIGARETTES: ANATOMY OF AN INDUSTRY FROM SEED TO SMOKE 81-93 (2001) (discussing the chronology of cigarette advertising and competition towards women); see also Widerman, supra note 42, at 418-20.
77. Michael Schudson, Symbols and Smokers: Advertising, Health Messages, and Public Policy, in SMOKING POLICY: LAW, POLITICS & CULTURE 213-14 (Robert L. Rabin & Stephen D. Sugarman eds., 1993). One strategy was to try to link cigarette smoking with thinness and liberty. It worked.
78. See, e.g., DAVID KESSLER, A QUESTION OF INTENT 273-74 (2001); PARKER-POPE, supra note 52, at 82-89.
79. See Brink, supra note 44, at 150; John A. Meyer, Cigarette Century, AM. HERITAGE, Dec. 1992, at 72, 76.
80. PUB. HEALTH SERV., U.S. DEP'T OF HEALTH & HUMAN SERVS., THE HEALTH CONSEQUENCES OF SMOKING 26 (1964) [hereinafter HEALTH CONSEQUENCES OF SMOKING].
81. See Robert L. Rabin, Institutional and Historical Perspectives on Tobacco Tort Liability, in SMOKING POLICY: LAW, POLITICS AND CULTURE 111 (Robert L. Rabin & Stephen D. Sugarman eds., 1993). Casablanca, starring Humphrey Bogart, was released in 1942. Some have described the movie by saying "[c]igarettes are everywhere in Casablanca."
82. RICHARD KLEIN, CIGARETTES ARE SUBLIME 168 (1993). Modern movies continue to glamorize smoking.
83. See, e.g., Elaine Dutka, Force of Habit, L.A. TIMES, Sept. 5, 1996, at F1.
84. ALVAN BRODY & BETTY BRODY, THE LEGAL RIGHTS OF NONSMOKERS 76 (1977).
85. See, e.g., Larry Kraft, Smoking in Public Places: Living with a Dying Custom, 64 N.D. L. REV. 329, 336 (1988) ("[T]hen Americans went on a tobacco smoking binge. Everyone started doing it and doing it everywhere, creating an American custom which gave the smoker consent to smoke at will.").
86. See HEALTH CONSEQUENCES OF SMOKING, supra note 55.
87. For example, on March 27, 2001, Philip Morris Companies, Inc.'s CEO, Geoffrey C. Bible, reported that Philip Morris' year 2000 net income was $8.4 billion. PHILIP MORRIS COS., INC., Remarks by Geoffrey C. Bible, Chairman and Chief Executive Officer, Philip Morris Companies, Inc., to the Council of Institutional Investors Spring Meeting in Washington D.C. March 27, 2001, http://www.philipmorris.com/pressroom/press_releases/prh_council_II.asp. For years, people have incorrectly assumed tobacco might quickly become an economically unsustainable business.
88. See, e.g., John Groman, Report of Tobacco Industry's Death More Smoke than Fire, CHI. TRIB., Aug. 24, 1986, at 1 (discussing the profit increase in the tobacco industry despite increased taxes and advertising of tobacco's adverse health consequences).
89. See Clara Sue Ross, Comment, Judicial and Legislative Control of the Tobacco Industry: Toward a Smoke-Free Society?, 56 U. CIN. L. REV. 317, 332 (1987); see also PARKER-POPE, supra note 52, at 22 ("Add up those direct and indirect jobs and salaries and you have $54.2 billion in U.S. wages - nearly 2% of the country's gross domestic product.").
90. As Representative Horace Kornegay of North Carolina explained during the 1964 House hearings on tobacco, banning smoking to protect the health of Americans would cripple an entire region of the country. See ROBERT SOBEL, THEY SATISFY: THE CIGARETTE IN AMERICAN LIFE 196 (1978).
91. Governments can come to depend on tax revenue cigarette sales generate. See, e.g., Harvey M. Sapolsky, The Political Obstacles to the Control of Cigarette Smoking in the United States, 5 J. HEALTH POL. & L. 277, 284-85 (1980).
92. AM. COUNCIL ON SCI. & HEALTH, CIGARETTES: WHAT THE WARNING LABEL DOESN'T TELL YOU 8 (1997). Men who smoke are twenty-two times more likely than male nonsmokers to die of lung cancer. Female smokers are twelve times as likely to die of lung cancer as female nonsmokers.
93. CIGARETTES: WHAT THE WARNING LABEL DOESN'T TELL YOU 8 (1997). Id. Although the relationship between lung cancer and smoking is often taken for granted, more smokers die of heart disease than lung cancer. Every "year, cigarette smoking accounts for nearly 200,000, or one-fifth, of all deaths from heart disease in the United States." Id. at 26.
94. See PHILIP J. HILTS, SMOKESCREEN: THE TRUTH BEHIND THE TOBACCO INDUSTRY COVER-UP 4 (1996) (describing research by Ernst Wynder and Evarts Graham revealing that 44% of laboratory animals exposed to cigarette smoke condensate developed tumors).
95. Id. at 12-13; KLUGER, supra note 41, at 164.
96. STANTON A. GLANTZ, THE CIGARETTE PAPERS 35 (1996).
97. Id. at 33.
98. See, e.g., DEBORAH C. RYBAK & DAVID PHELPS, SMOKED: THE INSIDE STORY OF THE MINNESOTA TOBACCO TRIAL 89-101 (1998).
99. See HEALTH CONSEQUENCES OF SMOKING, supra note 55, at 31.
100. 15 U.S.C. § 1333 (1993).
101. By 1986, the reported rate of smoking among American adults was only 32%. Joan Hamilton & Emily T. Smith, "No Smoking" Sweeps America, BUS. WK., July 27, 1987, at 40. By 1998, less than 25% of American adults admitted to regularly smoking cigarettes.
102. NAT'L CTR. FOR HEALTH STATISTICS, Fast Stats A to Z, at http://www.cdc.gov/nchs/fastats/smoking.htm (last visited Nov. 8, 2001).
103. GLANTZ & BALBACH, supra note 1, at 7.
104. As one of the nation's leading tobacco experts explains, ETS presents "the tobacco industry's most difficult battle to date." Richard A. Daynard, Smoking out the Enemy: New Developments in Tobacco Litigation, TRIAL, Nov. 1993, at 16.
105. ARIZ. REV. STAT. ANN. § 36-601.01 (West 1993 & Supp. 2000). In 1973, Oregon passed legislation implementing a $10.00 fine for smoking at public meetings in State-controlled buildings. At least one commentator suggests that the law may have been treated as something of a joke, and was essentially unenforced. See William D. Hostetler, Tobacco Pollution and the Nonsmoker's Rights, 4 ENVTL. L. REV. 451, 454-55 (1974).
106. MINN. STAT. § 144.414 (2000).
107. GLANTZ & BALBACH, supra note 1, at 9.
108. 14 C.F.R. § 252.1-7 (2001).
109. 49 U.S.C. § 41706(a) (2001).
110. INVOLUNTARY SMOKING, supra note 6.
111. Id. at vii.
112. Id. at xii.
113. See William L. Weis, "No Ifs, ands or Butts" - Why Workplace Smoking Should Be Banned, MGMT. WORLD, Sept. 1981, at 39. Weis estimated that companies could save $5,000 a year for every smoking employee who was replaced with a nonsmoker. Id. at 39-40.
114. See, e.g., Robert D. Tollison & Richard E. Wagner, SMOKING AND THE STATE: SOCIAL COSTS, RENT SEEKING, AND PUBLIC POLICY 19-21 (1988) (suggesting that employee smoking does not increase costs, worker absenteeism, or productivity).
115. Jimmy Goh, Comment, "Smokers Need Not Apply": Challenging Employment Discrimination Against Smokers Under the Americans with Disabilities Act, 39 KAN. L. REV. 817, 823 (1991).
116. See Mark W. Pugsley, Note, Nonsmoking Hiring Policies: Examining the Status of Smokers Under Title I of the Americans with Disabilities Act of 1990, 43 DUKE L. J. 1089, 1092 (1994).
117. Andrew M. Kramer & Laurie F. Calder, The Emergence of Employees' Privacy Rights: Smoking and the Workplace, 8 LAB. LAW. 313, 322 (1992).
118. See, e.g., Brce Samuels & Stanton A. Glantz, The Politics of Local Tobacco Control, 266 J.A.M.A. 2110 (1991).
119. Jon Van, Report: 2nd-Hand Smoke Kills 53,000 a Year, CHI. TRIB., Jan. 11, 1991, at C4.
120. Stanton A. Glantz & William Parmley, Passive Smoking and Heart Disease: Epidemiology, Physiology, & Biochemistry, 83 CIRCULATION 1 (1991).
121. RESPIRATORY HEALTH EFFECTS OF PASSIVE SMOKING, supra note 6, at 1-4 (1992). Tobacco proponents have convinced at least one federal judge that the EPA's procedures and scientific method may have been too questionable to withstand close scrutiny. See Flue-Cured Tobacco Coop. Stabilization Corp. v. United States EPA, 4 F. Supp. 2d 435 (M.D. N.C. 1998)
122. OFFICE OF ENVTL. HEALTH HAZARD ASSESSMENT, CAL. EPA, HEALTH EFFECTS OF EXPOSURE TO ENVIRONMENTAL TOBACCO SMOKE [hereinafter CAL. EPA], available at http://www.oehha.org/pdf/exec.pdf (Sept. 1997).
123. CAL. EPA, supra note 92, at ES-xix.
124. Id. at ES-xx (observing that "smoking is an established cause of a number of cancers (lung, larynx, oral cavity, esophagus and bladder), and a probable cause of several others (cervical, kidney, pancreas, and stomach)").
125. Id. at ES-xxii (finding that "the risk of [coronary heart disease] mortality is increased by a factor of 1.3").
126. Helling v. McKinney, 509 U.S. 25, 35 (1993) (holding that such exposure may violate the Eighth Amendment).
127. See generally KESSLER, supra note 53.
128. PETER PRINGLE, CORNERED: BIG TOBACCO AT THE BAR OF JUSTICE 56-76 (1998) (detailing the story of Merrell Williams, who photocopied incriminating documents written by the Brown & Williamson tobacco company).
129. HILTS, supra note 65, at 129.
130. Perhaps the most notorious case is Engle v. R.J. Reynolds Tobacco Co., 122 F. Supp. 1355 (S.D. Fla. 2000). The initial trial resulted in a $145 billion punitive damages award against several tobacco company defendants. Id. at 1358. Needless to say, the result is being challenged on appeal. See id. at 1364 (ordering the case remanded to the circuit court for further hearings).
131. See generally CARRICK MOLLENKAMP, ET AL., THE PEOPLE V. BIG TOBACCO: HOW THE STATES TOOK ON THE CIGARETTE GIANTS (1998).
132. The case, Broin v. Philip Morris Cos., Inc., was settled with the tobacco company defendants agreeing to pay $300,000,000 for research on smoking-related diseases. 641 So. 2d 888 (Fla. Dist. Ct. 1994) (reversing the lower court's dismissal and reinstating the class action); see also SULLUM, FOR YOUR OWN GOOD, supra note 27, at 202. Broin had contracted lung cancer after working as a flight attendant for thirteen years. Id. at 201.
133. PRINGLE, supra note 98, at 238.
134. Id.
135. PUBLIC CITIZEN, Don't Be Fooled Again: A Report on the Tobacco Industry's Lies and Deceptions, at http://www.citizen.org/congress/civjus/prod_liability/tobacco/articles.cfm?ID= 907 (last visited Feb. 17, 2002). As of May 2001, the Philip Morris website says: "[w]e agree with the overwhelming medical and scientific consensus that cigarette smoking causes lung cancer, heart disease, emphysema and other serious diseases in smokers."
136. PHILIP MORRIS COS., INC., Philip Morris U.S.A. Responds to Presidential Commission Preliminary Report, at http://www.philipmorris.com/pressroom/lit_reg/microsites/fda_regulation/ position_pap er.asp (last visited Feb. 14, 2002).
137. NAT'L ASS'N OF ATTORNEYS GEN., Tobacco Documents, at http://www.naag.org/tobac/index.html (last visited Feb. 16, 2002) (providing a history of settlement proposals and the final agreement).
138. After successfully defending a lawsuit brought by the husband of a woman who died from lung cancer, a Philip Morris representative said: Philip Morris U.S.A. is committed to being a responsible manufacturer of a dangerous product, to reducing the number of underage smokers, and is very aware of society's expectation for how it should market its products to informed adults who choose to smoke. Nonetheless, the company intends to offer a vigorous and effective defense against those who bring lawsuits against the company. PHILIP MORRIS COS., INC., New Jersey Jury Rejects Smoker's Lawsuit; Verdict Reaffirms Personal Responsibility, at http://www.philipmorris.com/pressroom/press_releases/Mehlman5.16.asp (May 16, 2001).
139. For example, in April 2001, tobacco companies successfully defended a case brought by a flight attendant who allegedly contracted lung disease as a result of exposure to secondhand smoke. BROWN & WILLIAMSON, Other Tobacco Companies, Win Second ETS Lawsuit, at http://www.brownandwilliamson.com/index_sub2.cfm?Page=/GC/Index.cfm%3FID%3D 54%26Sect%3D4.html (June 2, 1999).
140. This seems to suggest the possibility that risks from active smoking have been consistently over-estimated and risks associated with ETS exposure have been consistently under-estimated. Few studies seem to grapple with the fact that smokers inhale large quantities of secondhand smoke, both from their own cigarettes, and from other smokers. Cf. James L. Repace, Risk Management of Passive Smoking at Work and at Home, 13 ST. LOUIS U. PUB. L. REV. 763, 782 (1994) (explaining studies that reveal an increased cancer risk in smokers who live with other smokers).
141. Courts and commentators have frequently addressed the issues that can arise when a parent insists on smoking in the home despite the potentially harmful results of a child's regular exposure to ETS. See, e.g., Roofeh v. Roofeh, 525 N.Y.S.2d 765, 769 (Sup. Ct. 1988) (holding that a court may order a divorced custodial parent to refrain from smoking in the presence of her children); Michael S. Moorby, Smoking Parents, Their Children, and the Home: Do the Courts Have the Authority to Clear the Air?, 12 PACE ENVTL. L. REV. 827, 828 (1995) (examining "the propriety of court orders prohibiting parents from smoking in their homes in the presence of their children").
142. See INVOLUNTARY SMOKING, supra note 6, at 134 ("The combustion products of cigarettes are the sources of both environmental tobacco smoke and mainstream smoke.").
143. See CAL. EPA, supra note 92, at 3.
144. JOHN R. HOLUM, ELEMENTS OF GENERAL AND BIOLOGICAL CHEMISTRY 23 (6th ed. 1983); see also Repace, supra note 109, at 777-78.
145. AM. LUNG ASSOC., Second-Hand Smoke (Feb. 2000), available at http://www.lungusa.org/air/air00_second.html;
146. NAT'L RESEARCH COUNCIL, ENVIRONMENTAL TOBACCO SMOKE: MEASURING EXPOSURES AND ASSESSING HEALTH EFFECTS 8 (1986) ("Tobacco smoke has a distinct and persistent odor, making control through ventilation particularly difficult.").
147. See INVOLUNTARY SMOKING, supra note 6, at 125-39.
148. See, e.g., PATTY J. ANNIS, FINE PARTICLE POLLUTION: RESIDENTIAL AIR QUALITY 5 (N. Cent. Reg'l Publ'n, Oct. 1991) (indicating sources and effects of indoor particle pollutants, including those from tobacco smoke).
149. PATTY J. ANNIS, FINE PARTICLE POLLUTION: RESIDENTIAL AIR QUALITY 5 (1991) Id.
150. Annis writes that "the smell of stale cigarette smoke persists in a room long after the smoker has left." PATTY J. ANNIS, FINE PARTICLE POLLUTION: RESIDENTIAL AIR QUALITY 5 (1991) Id.
151. Cf. Ezra, Get off Your Butts, supra note 4, at 939.
152. Another problematic aspect of smoking is the trash or litter that is created by cigarette butts. See, e.g., Rene Lynch, Most Popular Beach Activity Appears to Be . . . Littering, L.A. TIMES, May 23, 1997, at B1. One study of a comprehensive beach clean-up hinted at the magnitude of the problem.
153. Rene Lynch, Most Popular Beach Activity Appears to Be . . . Littering, L.A. TIMES, 1997, B1. Id. Cigarette butts were by far the most common litter item that had to be removed from the beaches.
154. Rene Lynch, Most Popular Beach Activity Appears to Be . . . Littering, L.A. TIMES, 1997, B1. Id. While 935 bottle caps had to be retrieved, over 14,000 cigarette butts were collected.
155. Rene Lynch, Most Popular Beach Activity Appears to Be . . . Littering, L.A. TIMES, 1997, B1. Id. While many smokers neatly dispose of their butts and ashes, some do not. Problems associated with the litter and trash aspects of cigarettes will concern some property owners.
156. Similarly, used car advertisements now often reference owner smoking habits as an indicator of the vehicle's desirability. One representative advertisement offers a "1996 Ford Ranger XLT 4x2: extra-cab, 4-liter V6 engine, oxford white exterior, charcoal gray interior, automatic transmission with overdrive, power steering and brakes, A/C, AM/FM stereo cassette, 32,500 miles, nonsmoking original owner." Classified Ads, UNLV NEWS & PUB. INFO., UNIV. OF NEV., LAS VEGAS, Nov. 2, 1998, Vol. 27, No. 35, available at http://www.unlv.edu/News_Bureau/Home_Pages/update/issues/1998/Nov98/2735.html (emphasis added).
157. See, e.g., Elizabeth B. Thompson, The Constitutionality of an off-Duty Smoking Ban for Public Employees: Should the State Butt out?, 43 VAND. L. REV. 491, 496-97 (1990) (citing studies estimating employer damage and maintenance costs of $1,000 per year, per smoking employee).
158. Some property owners had this figured out long ago. A book published in 1977 says, "[t]he Sherry Park Apartments in Arlington, Texas, sought nonsmoking tenants to avoid cigarette burns in expensive drapery and carpets." BRODY & BRODY, supra note 57, at 54.
159. See Repace, supra note 109, at 776-83 (reviewing air cleaning options, as well as separate smoking areas).
160. Careless handling of cigarettes has been blamed for some significant tragedies, such as a fire aboard an airliner that brought down the plane and killed twenty-three people and a fire in a soccer stadium that killed fifty-six people. See JAMES WILKINSON, TOBACCO: THE TRUTH BEHIND THE SMOKESCREEN 50-51 (1986).
161. U.S. DEP'T OF HEALTH & HUMAN SERVS., REDUCING TOBACCO USE: A REPORT OF THE SURGEON GENERAL 249 (2000).
162. REDUCING TOBACCO USE: A REPORT OF THE SURGEON GENERAL 249 (2000). Id.
163. See NAT'L SAFETY COUNCIL, ACCIDENT FACTS 96 (1989); see also BRODY & BRODY, supra note 57, at 49-51.
164. See, e.g., Bischel v. Fire Ins. Exch., 2 Cal. Rptr. 2d 575, 576-78 (Ct. App. 1991).
165. See, e.g., Levy-Zentner Co. v. S. Pac. Transp. Co., 142 Cal. Rptr. 1, 32-35 (Dist. Ct. App. 1977) (holding that the defendant knew of a fire hazard at a warehouse and had not taken adequate fire prevention precautions). Smoking-related fire litigation reports are collected in BRODY & BRODY, supra note 57, at 140-42.
166. Insurance companies typically offer premium discounts to nonsmokers, primarily because of the reduced fire risk. See, e.g., Brenda Lyon, Smart Ways to Save on Homeowners Insurance, at http://www.jtrealty.com/saveoninsurance.html (last visited Nov. 29, 2001) ("With 23,000 smoking-related fires a year, companies tend to reward nonsmokers with a 2%-5% discount."). Therefore, it seems likely that as the popularity of nonsmoking multi-unit housing increases, insurers will increasingly offer premium discounts to property owners that prohibit residential smoking.
167. See, e.g., Mark Hansen, Smoke Gets in Your High-Rise: Tobacco-Sensitive Tenants Increasingly Sue over Neighbors' Nicotine Habits, 84 A.B.A. J. 24 (1998).
168. Secondhand smoke can move from one room to another through any number of openings or connections. A common heating and cooling system was blamed in Dworkin v. Paley, 638 N.E.2d 636, 636 (1994). Nancy Sagatelian blamed air ducts. Denise Levin, Suit Tests Risks of Secondhand Smoke in Condos, L.A. DAILY J., Jan. 11, 2000, at 1. Kathleen Thomas blamed the air conditioning system. See Hansen, supra note 131, at 24. William and Valerie Pentony said the smoke seeped through gaps in the flooring.
169. SULLUM, FOR YOUR OWN GOOD, supra note 27, at 159.
170. See supra notes 114-17 and accompanying text.
171. Long-term health risks include ailments such as lung cancer and heart disease. See supra, notes 89-95 and accompanying text.
172. See INVOLUNTARY SMOKING, supra note 6, at 229-39.
173. Id. at 239.
174. See, e.g., Shimp v. N.J. Bell Tel. Co., 368 A.2d 408 (N.J. Super. Ct. Ch. Div. 1976) (involving a phone company worker who claimed numerous adverse reactions to inhalation of secondhand smoke); Rebecca Liss, Non-Smoker Sues Neighbors: Claims Second-Hand Smoke Wafts into His Condo, L.A. DAILY J., June 27, 1996, at 2.
175. See, e.g., BRODY & BRODY, supra note 57, at 83-86; see also Alan S. Kaufman, Comment, Where There is Smoke There's Ire: The Search for Legal Paths to Tobacco-Free Air, 3 COLUM. J. ENVTL. L. 62, 81-86 (1976) (advocating the use of nuisance theory for lawsuits combatting involuntary inhalation of secondhand smoke).
176. Nonsmokers might also sue for trespass. While trespass requires a physical invasion of property, ETS deposits could satisfy that criteria. Cf. Bradley v. Am. Smelting & Ref. Co., 709 P.2d 782, 786 (Wash. 1985) (holding that microscopic particulates can invade land and constitute a trespass); see also Davis v. Ga.-Pac. Corp., 445 P.2d 481, 483 (Or. 1968) (holding that the deposit of airborne particulates on another's land constitutes trespass even though particulates were too small to be seen).
177. See, e.g., Koll-Irvine Ctr. Prop. Owners Ass'n v. County of Orange, 29 Cal. Rptr. 2d 664, 666-67 (Ct. App. 1994).
178. Id. at 1041.
179. CAL. CIV. CODE § 3479 (West 1982 & Supp. 2001). In contrast to a private nuisance, California defines a public nuisance as a nuisance that "affects at the same time an entire community or neighborhood, or any considerable number of persons." Id. § 3480.
180. See generally PROSSER & KEETON ON TORTS § 86-88(B) (5th ed. 1984).
181. See, e.g., Riter v. Keokuk Electro-Metals Co., 82 N.W.2d 151, 160 (Iowa 1957) (reviewing balancing tests in a suit brought by homeowners against a factory for alleged noxious air pollution).
182. Kellogg v. Viola provides a good discussion of some of the factors that can make assessment of nuisance claims particularly difficult. 227 N.W.2d 55 (Wis. 1975). The case involved a plaintiffs operation of a mink ranch adjacent to a "village dump" where burning occurred regularly. Id. at 57. Although the court acknowledged evidence showing that mink were particularly sensitive animals and evidence showing the plaintiff knew about the dump's activities before the affected property was acquired, the jury's finding of nuisance was upheld on appeal. Id. at 57-60.
183. 550 N.W.2d 49 (Neb. Ct. App. 1996).
184. Id. at 55.
185. Id.
186. Id.
187. Id. The court also concluded that the defendants "caused a nuisance" and that the plaintiffs were entitled to damages. Id. at 58.
188. 85 N.E. 2d 308 (Ohio Ct. App. 1948).
189. Id. at 309.
190. Kimball v. Thomspon, 70 F. Supp. 803, 808 (D. Neb. 1947), rev'd, 165 F.2d 677 (8th Cir. 1948) (defining smoke as a potential nuisance in a suit brought against a railroad for smoke emitted by steam locomotives).
191. Id.
192. In some states the required showing may be even less. For example, a Utah resident would only have to establish that ETS enters the nonsmoker's unit at least once a week for two consecutive weeks and that the ETS was "injurious to health, indecent, offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property." UTAH CODE ANN. § 78-38-1(1) (1996).
193. Fear of possible future harm usually will not support a nuisance claim. See, e.g., Koll-Irvine Ctr. Prop. Owners Ass'n, 29 Cal. Rptr. 2d at 667-68 ("[A] private nuisance action cannot be maintained . . . solely by the fear of a future injury.").
194. See Dauberman v. Grant, 246 P. 319, 321 (Cal. 1926) ("[S]moke is carried into" [plaintiffs] "dwelling[]" plaintiff is "entitled to recover for the personal discomfort and annoyance to which she has been subjected.").
195. See PROSSER & KEETON, supra note 143, at § 89. Nonsmokers have obtained injunctions prohibiting a neighbor's smoking. See Kelie Russell, Court Clears the Air, LONG BEACH PRESS-TELEGRAM (Long Beach, Cal.), Apr. 26, 1996 (describing Richard Layon's success in obtaining an order which prohibited his neighbor from smoking in a garage that was below Layon's condominium unit).
196. CAL. CIV. CODE § 3502 (West 1982 & Supp. 2001).
197. In Sabin v. Smith, for example, the court approved the killing of a dog that was chasing poultry as a proper abatement of a nuisance. 147 P. 1180, 1181-82 (Cal. Ct. App. 1915).
198. Nonsmokers who perceive smoking conduct as a nuisance occasionally take matters into their own hands by extinguishing cigarettes or taking other counter-measures. See, e.g., David B. Ezra, Note, Smoker Battery: An Antidote to Second-Hand Smoke, 63 S. CAL. L. REV. 1061, 1082-83, n.104 (1990) [hereinafter, Ezra, Smoker Battery].
199. See, e.g., Laurenzi v. Vranizan, 155 P.2d 633, 635 (Cal. 1945) (finding that an owner who permits or authorizes "the creation or maintenance of a nuisance" can be held liable for damages).
200. See generally Note, Protecting Employees at Will Against Wrongful Discharge: The Public Policy Exception, 96 HARV. L. REV. 1931, 1931 (1983) (stating that public policy reasons are "the most widely accepted limitation" to at-will employment).
201. 188 Cal. Rptr. 159 (Ct. App. 1982).
202. Id. at 160.
203. Id. at 167-68.
204. Id. at 162.
205. Id.
206. See, e.g., Aweeka v. Bonds, 97 Cal. Rptr. 650, 651-62 (Ct. App. 1971) (holding that a tenant properly states a cause of action for retaliatory eviction where she claims that she was evicted for requesting repairs).
207. Barela v. Super. Ct., 178 Cal. Rptr. 618, 620 (Cal. 1981) (alterations in original) (citations omitted).
208. Rich v. Schwab, 75 Cal. Rptr. 2d 170, 177 (Ct. App. 1988).
209. Javins v. First Nat'l Realty Corp., 428 F.2d 1071, 1074 (D.C. Cir. 1970) (footnote omitted).
210. See, e.g., Lee v. Placer Title Co., 33 Cal. Rptr. 2d 572 (Ct. App. 1994) (suggesting that a landlord's failure to remedy ventilation problems can breach the covenant of quiet enjoyment).
211. Robert L. Kline, Smoke Knows No Boundaries: Legal Strategies for Environmental Tobacco Smoke Incursions into the Home Within Multi-Unit Residential Dwellings, TC ONLINE, TOBACCO CONTROL, (Feb. 9, 2000), at http://tc.bmjjournals.com/cgi/content/full/9/2/201 (advocating the use of habitability and quiet enjoyment doctrines and suggesting that nonsmokers can rely on state sanitation codes to seek administrative redress against secondhand smoke incursions).
212. No. 98-02279 (Mass. Hsg., Boston Div. June 8, 1998).
213. Massachusetts Tenants Get Some Damages for Secondhand Smoke, 12 Mealey"s Litig. Rep. (Mealey's Pub., Inc.) No. 4, at Tobacco 19 (June 18, 1998) [hereinafter MEALEY'S, Tobacco].
214. Andrea Estes, Tenant Wins Suit over Smoky Home; No Butts: Landlord Must Clear Air in Hub Apartment, BOSTON HERALD, June 10, 1998, at 001.
215. Id.
216. MEALEY'S, Tobacco, supra note 176.
217. Id.
218. Because of a lack of substantial medical evidence, the judge rejected Kristy Haile's multi-million dollar claim for smoke-induced asthma. Id.
219. Dworkin v. Paley, 638 N.E.2d 636, 637 (Ohio. Ct. App. 1994).
220. Id.
221. Id.
222. Id.
223. Id.
224. Id.
225. Id. at 638.
226. Id. at 637.
227. Id. at 639.
228. Id. at 638.
229. Id.
230. Id. at 639.
231. Id.
232. Portillo v. Aissa, 32 Cal. Rptr. 2d 755, 758 (Ct. App. 1994).
233. See, e.g., Uccello v. Laudenslayer, 118 Cal. Rptr. 741, 747-48 (Ct. App. 1975) (finding that actual knowledge of a dangerous condition caused by a tenant imposes a duty of care on a landlord, although the landlord may not terminate a tenancy to alleviate that condition).
234. See supra notes 135-37 and accompanying text.
235. Indeed, children may be even more susceptible to the adverse effects of ETS exposure than adults. Victoria L. Wendling, Note, Smoking and Parenting: Can They be Adjudged Mutually Exclusive Activities?, 42 CASE W. RES. L. REV. 1025, 1065 (1992);
236. see also Roberta Israeloff, How Secondhand Smoke Hurts Kids, PARENTS, Aug. 1993, at 54 ("Young children are most susceptible to all sorts of illnesses because they have smaller airways, breathe more rapidly, and have more lung area per body than adults."). In smoke-filled environments, children may inhale proportionally more secondhand smoke than adults.
237. Curtis R. Cowan, Note, Florida Smokers Need Legislative Action to "Clear the Air", 8 NOVA L.J. 389, 397 (1984). Children who are exposed to ETS are believed to be more likely to suffer from respiratory illnesses and infection, more likely to be hospitalized because of bronchitis or pneumonia, and more likely to suffer from chronic cough and phlegm.
238. See INVOLUNTARY SMOKING, supra note 6, at 107. Childhood exposure to ETS may even be a cause of Sudden Infant Death Syndrome ("SIDS"). See CAL. EPA, supra note 92, at 4-30.
239. As Philip Morris explains on its website: We believe that particular care should be exercised where children are concerned, and that smokers who have children - particularly young ones - should seek to minimize their exposure to ETS. A number of studies have reported increased relative risks for children - especially young ones - living in smoking households of contracting conditions such as cough, wheeze, otitis media (middle ear infection) and lower respiratory infection. Moreover, some studies suggest that ETS exposure could be one of many agents that can make episodes in asthmatic children more severe. There are also studies that report an association between parental smoking and Sudden Infant Death Syndrome. PHILIP MORRIS, U.S.A., Secondhand Smoke: Young Children and ETS, at http://www.philipmorrisusa.com/DisplayPageWithTopic.asp?ID=62-Children (last visited Nov. 29, 2001).
240. 368 A.2d 408 (N.J. Super. Ct. Ch. Div. 1976).
241. Id. at 410.
242. Id. at 411.
243. Id. at 416.
244. Id.
245. Melissa A. Vallone, Note, Employer Liability for Workplace Environmental Tobacco Smoke: Get out of the Fog, 30 VAL. U. L. REV. 811, 836-39 (1996). Notes that courts tend to find in favor of the nonsmoker only in cases where the nonsmoker's complaints are disregarded.
246. Melissa A. Vallone, Employer Liability for Workplace Environmental Tobacco Smoke: Get out of the Fog, 30 VAL. U. L. REV. 811, (1996). Id.
247. See Smith v. W. Elec. Co., 643 S.W.2d 10, 13 (Mo. Ct. App. 1982); see also McCarthy v. Dep't of Soc. & Health Servs., 759 P.2d 351 (Wash. 1988).
248. There are several ways to test for the presence of ETS. Individuals can be tested for cotinine, a nicotine metabolite. But testing an individual may not accurately reflect secondhand smoke exposure at a particular place. After all, people can be exposed to tobacco smoke in many different places. Air sampling seems to be the best method of testing for ETS exposure in residential living units. But this methodology may not yield accurate results if smoking tenants or occupants become aware of the criticism and adjust their smoking habits at or before the time of testing. For a discussion of testing methodologies, see Repace, supra note 109, at 765.
249. PGA Tour, Inc. v. Martin, 532 U.S. 661, 697 (2001) (Scalia, J., dissenting); see generally 42 U.S.C. §§ 12101-02, 12189 (1994).
250. Mark A. Gottlieb, et al., Second-Hand Smoke and the ADA: Ensuring Access for Persons with Breathing and Heart Disorders, 13 ST. LOUIS U. PUB. L. REV. 635, 636 (1994).
251. Karpel v. Inova Health Sys. Servs., 1997 WL 38137, at * 6 (E.D. Va. Jan. 24, 1997), aff'd, 134 F.3d 1222 (4th Cir. 1998).
252. 42. U.S.C. § 12201(b) (1995). Courts have refused to find that smoking addiction qualifies as a handicap under state laws that mirrored the ADA. See, e.g., Stevens v. Inland Waters, Inc., 559 N.W.2d. 61 (Mich. Ct. App. 1996). Nevertheless, some commentators have argued that the law should be interpreted to afford protection for "addicted" smokers. See Goh, supra note 85, at 833 ("Congress tacitly recognized tobacco addiction as a defined disability."). Other commentators have suggested that this provision is "inconclusive as to whether the drafters intended to include smoking as a covered disability." Pugsley, supra note 86, at 1104.
253. 831 F. Supp. 1300 (E.D. Va. 1993).
254. Id. at 1303.
255. Id. at 1306.
256. 919 F. Supp. 308 (N.D. Ill. 1996).
257. Id. at 309. Particularly in the employment context, some courts have been less willing to acknowledge that the respiratory illnesses ETS exacerbates qualify as disabilities. In the employment context, some courts have focused the analysis on whether or not the affected employee could easily find alternative employment that would not include ETS related problems. In Rhoads v. Federal Deposit Insurance Corp., an employee was terminated for excessive absences after exposure to workplace secondhand smoke resulted in asthma, migraines, bronchitis, and even pneumonia. 956 F. Supp. 1239, 1246 (D. Md. 1997). While noting that the employee performed the job very well in a smoke-free environment, the court rejected the claim for protection under the ADA, because the employee had failed to show "that a class of jobs free from exposure to smoke has been foreclosed as a result of her impairment." Id. at 1246.
258. 51 F.3d 353 (2d Cir. 1995).
259. Id. at 354.
260. Id. at 357-58.
261. See, e.g., Wendy E. Parmet, et al., Accommodating Vulnerabilities to Environmental Tobacco Smoke: A Prism for Understanding the ADA, 12 J. L. & HEALTH 1, 9 (1998) ("Only the airline and the housing industries appear not to be covered.").
262. 42 U.S.C. § 12181(7) (1995).
263. Id.
264. Id. § 12181 (7)(A) (1995).
265. Indep. Hous. Servs. of San Francisco v. Fillmore Ctr. Assocs., 840 F. Supp. 1328, 1344 (N.D. Cal. 1993).
266. 42 U.S.C. § 3604 (f)(2) (1994).
267. Id. § 3604 (f)(3)(A) (1994).
268. Id. § 3604 (f)(3)(B) (1994).
269. See, e.g., CAL. GOV'T. CODE § 12955 (West 1992 & Supp. 2001); CAL. CIV. CODE § 54.1 (West 1982 & Supp. 2001); see also VT. STAT. ANN. tit. 9, § 4503 (defining discrimination based on a person's handicap as an unfair housing practice).
270. 791 F. 2d 1006 (2d Cir. 1986).
271. Id. at 1014; see also Vickers v. Veterans Admin., 549 F. Supp. 85, 86-87 (W.D. Wash. 1982) (finding that an individual who is hypersensitive to tobacco is a "handicapped person" as defined in 29 U.S.C. § 706(7)(B)).
272. 42 U.S.C. § 3613 (c)(1)-(2) (West 1994).
273. See County of Fresno v. Fair Employment & Hous. Comm., 277 Cal. Rptr. 557, 566 (Ct. App. 1991).
274. Id.
275. See, e.g., CURTIS C. SPROUL & KATHRINE ROSENBERRY, ADVISING CALIFORNIA CONDOMINIUM HOMEOWNERS ASSOCIATIONS 20-23 (1991).
276. Chantiles v. Lake Forest II Master Homeowners Ass'n, 45 Cal. Rptr. 2d 1, 5 (Ct. App. 1995).
277. SPROUL & ROSENBERRY, supra note 234, at 155.
278. Id. at 267.
279. See, e.g., CAL. CIV. CODE § 1354(a) (West 1982 & Supp. 2001) (detailing the enforceability of covenants and restrictions as equitable servitudes).
280. Posey v. Leavitt, 280 Cal. Rptr. 568, 574 (Ct. App. 1991).
281. See, e.g., White v. Cox, 95 Cal. Rptr. 259, 263 (Ct. App. 1971) (holding that an injured assocation member can sue a condominium association for negligent maintenance). In some instances, courts have treated associations like landlords for purposes of imposing liability. See, e.g., Frances T. v. Vill. Green Owners' Ass'n, 723 P.2d 573, 576-77 (Cal. 1986) (finding that a condominium association can be held to a landlord's standard of care in regard to any common areas that are under the association's control).
282. Baum v. Corondao Condo. Ass'n, 376 So. 2d 914, 918 (Fla. Dist. Ct. App. 1979). Associations probably will not be able to avoid liability by claiming that secondhand smoke "nuisance" was created by faulty construction. Id. As the court recently held, "[o]ne who knowingly maintains, or permits continuation on his property of a nuisance originated by his predecessor in ownership, is liable for the nuisance." Id.
283. Platt v. Landi, No. BC 152452 (L.A. Super. Ct. filed June 21, 1996) (on file with author).
284. Id. (compl. at ¶ 7).
285. Id.
286. Id. (compl. at ¶ 10). Platt's lawsuit included numerous causes of action, including breach of fiduciary duty, negligence, breach of the conditions, covenants and restrictions, and nuisance.
287. Stephanie Simon, Now It's Neighbor Versus Neighbor in Tobacco Wars, L.A. TIMES, July 7, 1996, at A22.
288. Id.
289. Denise Levin, Suit Tests Risk of Secondhand Smoke in Condos, L.A. DAILY J., Jan. 11, 2000, at 1.
290. Id. at 10.
291. Sagatelian v. 640 S. Lake Owner's Ass'n, Inc., L.A. Super. Ct. Case No. GC 021375 (filed June 5, 1998).
292. Denise Levin, HOA is Not Liable for Secondhand-Smoke Illness, L.A. DAILY J., Jan. 28, 2000, at 2.
293. Denise Levin, HOA is Not Liable for Secondhand-Smoke Illness, L.A. DAILY J., Id.
294. 2 Smokers Are Sued by Neighbors in Apartment Above Them, N.Y. TIMES, Apr. 28, 1994, at B6.
295. See SULLUM, FOR YOUR OWN GOOD, supra note 27, at 159.
296. FOR YOUR OWN GOOD, 159. Id.
297. FOR YOUR OWN GOOD, 159. Id.
298. FOR YOUR OWN GOOD, 159. Id.
299. See generally Roger L. Price, Litigation Between Associations Members for Breach of Condominium Provisions: Noise, 31 AM. JUR. Trials § 193 (1984).
300. Association governing documents often provide that the prevailing party of an enforcement action is entitled to recover reasonable attorneys fees and costs from the unsuccessful litigant. This may make some plaintiffs' attorneys more likely to initiate litigation in situations where actual compensatory damages are likely to be relatively modest.
301. For general discussions of smoking as a battery see, Ezra, Smoker Battery, supra note 161, at 1061; Daren S. Rimer, Secondhand Smoke Damages: Extending a Cause of Action for Battery Against a Tobacco Manufacturer, 24 SW. U. L. REV. 1237 (1995).
302. RESTATEMENT (SECOND) OF TORTS §§ 13, 18 (1990).
303. See Osborne M. Reynolds, Tortious Battery: Is "I Didn't Mean Any Harm" Relevant?, 37 OKLA. L. REV. 717, 718 (1984) (explaining that an intent to harm or offend is not required to establish battery).
304. For example, in South Brilliant Coal Co. v. Williams, the court allowed a battery cause of action to proceed in a situation where there was no physical suffering, and even though the offensive conduct lasted "but a moment." 91 So. 589 (Ala. 1921). Similarly, in California v. Martinez, the court upheld the criminal battery conviction in a case involving a defendant's bare foot kick to a police officer's well-protected shin. The court upheld the conviction because the contact may have at least been offensive. 3 Cal. App. 3d 886 (Ct. App. 1970).
305. For example, the Restatement offers illustrations such as splashing a few drops of dirty or muddy water on a plaintiffs hand. RESTATEMENT (SECOND) OF TORTS § 18(g) illus. 4, 6 (1990). Courts have also upheld battery verdicts in situations where a defendant spit on a plaintiff. See, e.g., Alcorn v. Mitchell, 63 Ill. 553, 554 (1872); Draper v. Baker, 21 N.W. 527, 530 (Wis. 1884). Since spitting on someone (or splashing muddy water on them) can constitute a battery, it seems reasonably likely that smoking conduct that consistently results in unwanted secondhand smoke exposure could support a battery cause of action.
306. 252 S.E.2d 250 (N.C. Ct. App. 1979).
307. Id. at 251.
308. Id.
309. Id.
310. Id. at 252.
311. See, e.g., C. EVERETT KOOP, KOOP: THE MEMOIRS OF AMERICA'S FAMILY DOCTOR 180 (1992) (arguing that by 1984, "the American majority was getting fed up with the smoke in their eyes"). Even smoking proponents have recognized the shifting attitudes, acknowledging that "many smokers have become so attuned to the sensibilities of non-smokers, they refrain from lighting up in any social situation."
312. Dealing with Anti-Smokers in Social Situations: Finding the "Spirit of Accommodation" at the Holiday Party, SMOKERS' ADVOC., Nov./ Dec. 1993, at 3.
313. See S. Robert Lichler & Stanley Rothman, Scientific Opinion vs. Media Coverage of Environmental Cancer, WILSON Q., Autumn 1993, at 137.
314. Portenier v. Republic Hogg Robinson, Inc., No. BC 028990 (Cal. Super. Ct. filed May 23, 1991) (on file with author).
315. See Lauren Blau, Second-Hand Smoke Case Going to Trial, L.A. DAILY J., Oct. 14, 1993, at 1.
316. Stuart Silverstein & David R. Olmos, Smoldering Legal Issues: Facing Lawsuits Employers Are Embracing Restrictions, L.A. TIMES, Mar. 31, 1994, at D1.
317. 434 S.E.2d 772 (Ga. Ct. App. 1993).
318. Id. at 774.
319. Id.
320. Id. at 775-76.
321. Id. at 775.
322. Id. The Georgia Supreme Court ultimately decided Richardson's claim fell within the state's workers' compensation laws. Hennly v. Richardson, 444 S.E. 2d 317, 320 (Ga. 1994).
323. 634 N.E.2d 697 (Ohio. Ct. App. 1994).
324. Id. at 698.
325. Id.
326. Id.
327. Id. at 699.
328. 622 N.E.2d 108 (Ill. App. Ct. 1993)
329. Id. at 111, 123.
330. Id. at 118-19.
331. 919 F. Supp. 308 (N.D. Ill. 1996).
332. Id. at 310.
333. Id. at 309.
334. Id. at 310.
335. Id.
336. One court affirmed an award of compensatory and punitive damages where a landlord failed to replace windows and doors that had been removed by a third party. Farvour v. Geltis, 205 P.2d 424, 424-25 (Cal. Ct. App. 1949). This created a situation where the tenants "caught colds and were rendered 'nervous and jittery.'" Id.
337. For a discussion of the heated (and sometimes violent) exchanges that can occur between smokers and nonsmokers, see Ezra, Smoker Battery, supra note 161, at 1066 n.24.
338. Even brief encounters between smokers and non-smokers can result in violence. For example, at a Benny's restaurant in California, a non-smoker asked a smoker to extinguish her cigarette. Peter Fimrite, Murder Charge in Cigaret [sic] Killing, S.F. CHRON., Oct. 1, 1993, at D4. The smoker initially complied, apparently willingly.
339. Peter Fimrite, Murder Charge in Cigaret [sic] Killing, S.F. CHRON., 1993, D4. Id. Then the smoker left the restaurant and returned with a twelve-gague shotgun.
340. Peter Fimrite, Murder Charge in Cigaret [sic] Killing, S.F. CHRON., 1993, D4. Id. The smoker shot the nonsmoker dead.
341. Peter Fimrite, Murder Charge in Cigaret [sic] Killing, S.F. CHRON., 1993, D4. Id.
342. Ricci v. Am. Airlines, 544 A.2d428, 429 (N.J. Super. Ct. App. Div. 1988).
343. Id.
344. Id. at 430. A similar incident took place in Baltimore, Maryland in 1993. Pugsley, supra note 86, at 1096. A woman was sitting in a smoking section at a restaurant when another diner asked her to extinguish her cigarette. Id. The simple request mushroomed into a full-fledged argument that did not end until one patron had allegedly smacked the smoker on the forehead and another had tied her belt loops to a chair. Id.
345. Ricci, 544 A.2d at 430.
346. Id. at 429.
347. Id. at 431.
348. See, e.g., Tansey, supra note 15, at A1 (discussing a ban on smoking in apartments and condominiums).
349. W.S. "Bill" Garland, BOMA Supports Smoking Ban in Building, at http://www.boma.org/comartl/comsmoke.html (last visited Oct. 8, 2001).
350. See, e.g., ASH: ACTION ON SMOKING AND HEALTH, at http://ash.org/condotrig.html (last visited Nov. 29, 2001).
351. California has a law that prohibits businesses from charging more for services to certain groups of consumers. CAL. CIV. CODE § 51.6 (West Supp. 2001), amended by 2001 Cal. Legis. Serv. 312 (West). But the law does not apply to smokers. Id. The Gender Tax Repeal Act prohibits business establishments from basing the price for services on the consumer's gender. ASH: ACTION ON SMOKING AND HEALTH, Id.
352. Conceivably, the tactic could backfire. Smokers also seem to be bothered by the presence of secondhand smoke. This is why we often see smokers holding their cigarettes out of their car windows. And surveys show that many smokers favor significant smoking restrictions. For example, 25% of polled smokers favored California's ban on smoking in bars. See Dan Morain, Bar Smoking Ban Attracts Wide Backing, L.A. TIMES, May 27, 1998, at A3. So some smokers might be attracted to residential living complexes that charge more for smokers, assuming the price structure will result in reduced ETS.
353. Dan Morain, Bar Smoking Ban Attracts Wide Backing, L.A. TIMES, 1998, A3. Id.
354. It seems likely that property owners will begin to use smoking restrictions as a marketing tool. At least one Internet registry of apartments with smoking restrictions already exists. See Smokefree Apartment House Registry, at http://www.smokefreeapartments.org (last visited Nov. 29, 2001) (providing information on smoke-free apartment rentals).
355. An interesting case involving allegations of housing discrimination against an attorney recently made headlines. See John M. Glionna, Home Builder's Ban on Sales to Lawyers Draws an Objection; Housing: Barred from Buying His Dream House by Developer's Policy, Attorney-Who Sued and Lost-Appeals, L.A. TIMES, Jul. 25, 1999, at A30. Burlington Homes refused to sell property to a prospective purchaser just because the purchaser was a licensed attorney. Id. Burlington felt that it might be more likely to become embroiled in litigation if it sold a home to an attorney.
356. John M. Glionna, Home Builder's Ban on Sales to Lawyers Draws an Objection; Housing: Barred from Buying His Dream House by Developer's Policy, Attorney-Who Sued and Lost-Appeals, L.A. TIMES, 1999, A30. Id.
357. See, e.g., Thomas W. Sculco, Note, Smoker's Rights Legislation: Should the State "Butt out" of the Workplace?, 33 B.C. L. REV. 879, 889 (1992) (reporting that twenty-one states have passed smokers' rights laws);
358. Michele L. Tyler, Note, Blowing Smoke: Do Smokers Have a Right? Limiting the Privacy Rights of Cigarette Smokers, 86 GEO. L. J. 783, 784 (1998) (noting that by 1995, twenty-nine states had passed laws protecting workers who smoke).
359. See, e.g., ARIZ. REV. STAT. § 36-601.02(F) (2001) ("No state employer may discriminate against any employee or other person on the basis of the use or nonuse of tobacco products.").
360. See, e.g., MONT. CODE ANN. § 39-2-313 (2001) (prohibiting discrimination based on lawful use of tobacco during non-working hours).
361. See CAL. CIV. CODE § 51 (West 1982 & Supp. 2001).
362. Id. Other state anti-discrimination laws apply to housing. For example, California Civil Code section 54.1 provides that people with disabilities must receive equal access to housing accommodations. CAL. CIV. CODE § 54.1 (West 1982 & Supp. 2001).
363. Harris v. Capital Growth Investors XIV, 805 P.2d 873, 877 (Cal. 1991) (quoting In re Cox, 474 P.2d 992, 995 (Cal. 1970)).
364. See, e.g., O'Connor v. Vill. Green Owners Ass'n, 662 P.2d 427, 431 (Cal. 1983) (extending the Act to persons under eighteen); Marina Point, Ltd. v. Wolfson, 640 P.2d 115, 124 (Cal. 1982) (extending the Act to families with children); In re Cox, 474 P.2d at 1000 (extending the act to unconventional dress or physical appearance); Rolon v. Kulwitzky, 153 Cal. App. 3d 289, 292 (Ct. App. 1984) (extending the Act to homosexuality).
365. 52 Cal. 3d at 1148; see also Beaty v. Truck Ins. Exch., 6 Cal. App. 4th 1455, 1457 (Ct. App. 1992) (refusing to extend the Act's protection to distinctions based on marital status).
366. Id. at 852-89.
367. Id. at 883.
368. Id. at 885.
369. Id. at 887.
370. According to one attorney who has represented Philip Morris, Inc., America has more people who have quit smoking than people who smoke. RYBAK & PHELPS, supra note 69, at 106.
371. In other words, a "smoker" would ordinarily be able to avoid "discrimination" simply by becoming a nonsmoker. There are, of course, times when smoking history will matter more than a person's current smoking conduct. For example, life insurance companies routinely "discriminate" against smokers by charging them more for life insurance. And the fact that a thirty year-old smoker quit smoking six months ago may not make much of a difference to a life insurance company.
372. Property owners may invite more scrutiny if they take action against a smoker who refrains from smoking while at the residential property. For example, one could argue that a smoker who agrees to travel to a nearby park to smoke, and who agrees to prevent guests from smoking at their residential property, should be treated the same as a nonsmoker by a landlord or property manager.
373. King v. Hofer, 49 Cal. Rptr. 2d 719, 722 (Ct. App. 1996). King determined that nonsmokers were not protected under the Unruh Act. The California Supreme Court ordered King de-published. Generally, de-published cases cannot be cited as binding legal authority in California.
374. See, e.g., Mark A. Rothstein, Refusing to Employ Smokers: Good Public Health or Bad Public Policy?, 62 NOTRE DAME L. REV. 940, 958 (1987) ("Because of a higher concentration of smokers in certain protected groups e.g., blacks, Hispanics, older workers, it could be asserted that the refusal to employ smokers constitutes disparate impact discrimination.") (internal footnotes omitted).
375. Factually speaking, race and ethnicity are not strong indicators of smoking conduct. See, e.g., Ezra, Get off Your Butts, supra note 4, at 949 n.286. Differential smoking rates between various races change over time.
376. Ezra, Get off Your Butts, 949 286. Id. And confounding factors, such as gender and the number of cigarettes smoked per day, make the situation even more complicated.
377. Ezra, Get off Your Butts, 949 286. Id.
378. 440 U.S. 568, 568 (1979).
379. Id. at 585.
380. Id. at 586-87.
381. OFFICE ON SMOKING & HEALTH, U.S. DEP'T. OF HEALTH & HUMAN SERVS., TOBACCO USE AMONG U.S. RACIAL/ETHNIC MINORITY GROUPS - AFRICAN AMERICANS, AMERICAN INDIANS AND ALASKA NATIVES, ASIAN AMERICANS AND PACIFIC ISLANDERS, AND HISPANICS: A REPORT OF THE SURGEON GENERAL (1998), at http://www.cdc.gov/tobacco/sgr/sgr_1998/sgr-min-sgr.htm.
382. Cf. Moore v. Inmont Corp., 608 F. Supp. 919, 927 (W.D.N.C. 1985) (rejecting the argument that terminating a black employee who smoked in a nonsmoking area involved improper racial discrimination).
383. Tyler, supra note 310, at 792.
384. As the United States Supreme Court recently acknowledged, "'[a]t the very core' of the Fourth Amendment 'stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.'" Kyllo v. United States, 533 U.S. 27, 31 (2001) (citation omitted).
385. Tyler, supra note 310, at 796 ("The right of a smoker to smoke is not turned into a fundamental right simply by the smoker's location within his own home.").
386. 478 U.S. 186, 195 (1986) ("Plainly enough, otherwise illegal conduct is not always immunized whenever it occurs in the home. Victimless crimes, such as the possession and use of illegal drugs, do not escape the law where they are committed at home.").
387. 878 P.2d 1275, 1292 (Cal. 1994).
388. Id. at 1291. While the Federal Constitution generally applies only to governmental actions that affect the individual, several state constitutions grant rights of privacy that can prohibit conduct by private individuals. See Rothstein, supra note 326, at 958. The California Constitution's protection of privacy extends beyond state actors to prohibit certain intrusive conduct by private individuals. CAL. CONST. art. I, § 1.
389. 653 So. 2d 1025, 1028 (Fla. 1995).
390. Id.
391. Id.
392. 67 Cal. App. 4th 743 (Ct. App. 1998).
393. Id. at 747.
394. Id. at 747-48.
395. Id. at 748.
396. Id.
397. Id.
398. Id. at 755 ("Particularly galling to us . . . was the presumptuous attempt to lecture Cunningham about getting rid of his old clothes, the way he kept his own bedroom, and the kind of 'reading material' he could have.").
399. Id. at 756.
400. 42 U.S.C. § 1437 (1994).
401. Mitchell v. Poole, 249 Cal. Rptr. 842, 843 (App. Dep't Super. Ct. 1998).
402. See generally CAL. PRACTICE GUIDE: LANDLORD-TENANT § 5:222-30 (2000).
403. For example, rent control laws can affect the rights of tenants. CAL. PRACTICE GUIDE: LANDLORD-TENANT 222-30 (2000). Id.
404. In the employment context, conclusory smoking policies that were not factually supported have been invalidated. See, e.g., In re VME Ams., Inc., 97 Lab. Arb. Rep. (BNA), at 137 (1991).
405. Such a program was successfully implemented by the Fort Pierce Housing Commission in Florida, and then approved by the Department of Housing and Urban Development. See Tyler, supra note 310, at 798.
406. To maximize the likelihood that smoking restrictions will be operable to future purchasers, community associations will want to include smoking restrictions in the recorded declaration of covenants, conditions, and restrictions (or the equivalent document). Villa Milano Homeowners Ass'n. v. Il Davorge, 84 Cal. App. 4th 819, 834 (Ct. App. 2000). This will help ensure that smoking restrictions are enforceable "equitable servitudes." Id. To avoid enforcement of an equitable servitude, a unit-owner would have to show the restriction "violates public policy, . . . bears no rational relationship to the protection, preservation, operation or purpose of the affected land; or . . . otherwise imposes burdens on the affected land that are so disproportionate to the restriction's beneficial effects that the restriction should not be enforced." Id. While smoking restrictions can also be included in by-laws or rules, those documents typically are not recorded. Id. Accordingly, use restrictions may not be enforceable as "equitable servitudes." See generally SPROUL & ROSENBERRY, supra note 234, at 20-23.
407. See AMS. FOR NONSMOKERS' RIGHTS, AM. NONSMOKERS' RIGHTS FOUND., Model Policy for a Smokefree Condominium or Apartment (Sept. 1998), at http://www.no-smoke.org/condo.html.
408. SPROUL & ROSENBERRY, supra note 234, at 442.
409. See, e.g., Plaza del Prado Condo Ass'n Inc. v. Richman, 345 So. 2d 851, 852 (Fla. Dist. Ct. App. 1977) (holding that a condominium association cannot allow some tenants to violate an association's by-laws and not others).