That no-smoking area may mean your unit

Question: I’ve had a tough time finding an apartment to rent because I smoke. I found a great place but was told it was a smoke-free building, inside and out. Don’t I have a right to smoke wherever I want?

Answer: The right to smoke depends on when and where you want to light up. Smoking has become a huge source of conflict, especially in light of health concerns regarding secondhand smoke. Fanning the flames are smokers who maintain that smoking is a right that should not be compromised.

The conflict has given rise to several laws defining smokers’ rights. In some areas, commercial and residential buildings have been deemed nonsmoking in the common areas or even the whole building, including individual units. The only exception to enforcement of the no-smoking rule for tenants may be when a preexisting lease is silent on the subject, leaving the lessee undisturbed until the contract runs out.

Since those who smoke are not considered a protected class, discrimination laws do not apply. As a result, disallowing smoking has become more and more commonplace. Besides rental properties and other private spaces, banning smoking in public and private places is becoming typical.

According to the American Nonsmokers’ Rights Foundation, an advocacy group that tracks local and state ordinances, as of Jan. 2, a total of 2,671 municipalities in the U.S. have local laws restricting where smoking is allowed. Places with restrictions include 524 municipalities that enforce a 100% smoke-free workplace and 488 that require 100% smoke-free restaurants.

Outdoor smoking bans are now in place at more than 45 beaches and 220 parks around the nation.

“What we’re seeing is the trend is going from the inside out,” said Cynthia Hallett, the foundation’s executive director.

The no-smoking trend began in 1998, when California became the first state to introduce a smoking ban inside public buildings. Other states have since followed suit. In Washington state, smoking is also not allowed within 25 feet of doorways, windows and air intakes of any protected space as defined in the law.

What about smoking in or near rental units? In March 2006, Calabasas enacted the Second-Hand Smoke Control Ordinance, which, in addition to restricting smoking in public places, included places of employment and apartment building common areas.

In December 2007, the Calabasas City Council expanded the ban by introducing an ordinance requiring at least 80% of apartment buildings to be permanently designated as nonsmoking units by Jan. 1, 2012. Leases for nonsmoking units will require a clause stating that “smoking is prohibited in the unit” and that it is “a material breach of the lease” to violate terms outlined in the or- dinance (www.cityofcalabasas .com/secondhandsmoke.html).

As with enforcement of noise laws, if tenants violate their lease by smoking in or near their units, they are subject to being bounced. If a landlord receives two written complaints from different individuals about a tenant’s smoking, the tenant “may be subject to eviction, at the discretion of the landlord,” the site explains. Violations can be pursued as a misdemeanor offense.

How does that affect you as a smoker? Be warned: Whatever the outcome of pending law and case law, leases across the country may come to include smoking as cause of eviction.

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