Last time, in Can I Smoke Marijuana in My Apartment, we were discussing whether or not smoking marijuana was a right users could enjoy in their own rental housing. The short answer is that landlords are free to restrict or prohibit such use.
But what about regular old tobacco? What are the smoker’s rights for smoking in an apartment?
Increasingly, there has been an erosion of smoker’s rights in favor of ensuring clean air for others. Once again, being a smoker is not a protected class under Fair Housing. Oddly, a marijuana user might be able, within narrow circumstances, to claim that smoking marijuana is a reasonable accommodation a landlord needs to provide because of a disability. However, it’s hard to imagine a tobacco smoker being able to make a similar claim.
Therefore, the conclusion is that the tobacco smoker’s rights may be even weaker than the marijuana user’s rights. At Decker Properties, we recently made all our locations smoke free including our newest property, Catalina Crossing apartments in Madison. There are limited areas in some locations where smoking is allowed, but never inside any apartments or in any common areas. Smoking areas include within five feet of entries, in detached garages and on patios and balconies. However, even in the allowed smoking areas, it is incumbent upon the smoker to take whatever steps are necessary, up to and including not smoking in the smoking areas, to ensure that second-hand smoke is not creating a nuisance for other residents.
In other words, the right to clean air for nonsmokers always trumps any rights smokers may have.
As a further caution, back in the old days when smoking enjoyed greater acceptance, we tried caulking holes, filling gaps and deploying air filters to preventing the spread of second hand smoke. Nothing worked. The only viable remedy is to prohibit smoking to start with.