Transcript Powers of County Legislatures and Boards of Health in Maryland

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Health Impact
 “There is no safe level of exposure to tobacco smoke” –
Report of the Surgeon General (2010)
 Secondhand smoke can have 80-90% of the health
impact of chronic smoking (J. Barnoya, MD, MPH (2005))
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Economic Impact
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Reduce maintenance and turnover costs
Reduce health costs
Reduce insurance premiums
Limit liability for residents and condo association
Safety Impact
 Reduce risk of residential fire
Protection From Secondhand Smoke
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Up to 65 percent of air can be exchanged between units and that
smoke travels through tiny cracks, crevices and chasing,
involuntarily exposing individuals in adjacent units.
Secondhand smoke (SHS) contains more than 7,000 identifiable
compounds released as gases or particles, including at least 70
known cancer causing compounds
50,000 nonsmokers die each year from cancer or disease caused by
SHS
Even brief exposure for children increases the risk for sudden
infant death syndrome (SIDS), acute respiratory infections, ear
problems, and asthma.
“At present, the only means of effectively eliminating health risks
associated with indoor exposure is to ban smoking activity.” American Society of Heating, Refrigerating & Air Conditioning Engineers
(ASHRAE)
Lower Costs
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HUD estimates that apartment turnover costs are 2 to 7
times greater when smoking is permitted
A survey of housing authorities and subsidized housing
facilities in New England found the cost to rehabilitate a
smoking unit was $1,500 to $3,000 more than a nonsmoking unit
Some insurance companies offer discounts on property
casualty insurance for multi-unit owners with a smokefree policy
No Smoking
Light Smoking
Heavy Smoking
General Cleaning $240
$500
$720
Paint
$170
$225
$480
Flooring
$50
$950
$1,425
Appliances
$60
$75
$490
Bathroom
$40
$60
$400
TOTAL
$560
$1,810
$3,515
Source: Smoke-Free Housing New England, 2009
Reduce Risk of Fire
Smoking is among the leading causes of
residential fires in multi-unit buildings and the
number one cause of fire deaths in the U.S. (Source:
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National Fire Protection Association)
National Fire Protection Association 2011 Data:
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17,600 smoking related residential fires
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540 civilian deaths (20% of all fire deaths)
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1,640 civilian injuries
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$621 million in direct property damage
#1 NFPA Recommendation to avoid residential
fires: “If you smoke, smoke outside”
Soaring Demand
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Only 18% of American adults
smoke, and roughly half that
total smoke in the home
8 out of 10 asked in a multistate survey indicate they
would prefer to live in a
smoke-free complex
1 out of 2 say they have
moved or would move because
of tobacco smoke drift
NO CONSTITUTIONAL RIGHT
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TO SMOKE
Proponents of smokers’ rights often argue that smoke-free laws or
policies:
◦ Violate an individual’s constitutional right to privacy; or
◦ Discriminate against smokers in violation of the Equal
Protection Clause
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All courts, including the U.S. Supreme Court, considering the issue
have found:
◦ Smoking is not a protected liberty, and
◦ Smokers are not a protected class of people
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Important Note: Several state constitutions, including MD, provide
broader protections than the federal constitution; however, no
state court has found smoking is a constitutionally protected right.
No smoking laws and policies do NOT violate the right to
privacy
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The Constitution protects the “fundamental right to privacy,” and any
law encroaching upon this right must pass a heightened level of court
scrutiny
The U.S. Supreme Court has repeatedly held the fundamental right to
privacy only applies to marriage, intimate relationships and rearing of
children
No court has extended the right to include smoking
No smoking laws and policies do NOT discriminate against
smokers
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The Equal Protection Clause guarantees “equal protection of the laws,”
meaning a law cannot treat groups of people differently without
adequate justification
Laws discriminating against an inherent characteristic (i.e. gender or
race) are rarely upheld, but laws discriminating against other groups
need only be “rationally related to a legitimate government goal.”
NO FEDERAL LAW PROHIBITS SMOKE-FREE LAWS OR POLICIES
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All 50 states (and the District of Columbia) have the
authority to enact smoke-free housing laws
No federal or state law prohibits an owner, property
manager or housing authority from making their
apartment building smoke-free
Family Smoking and Tobacco Control Act (2009)
 Sec. 916. Preservation of State and Local
Authority.
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“Nothing…shall be construed to limit the authority of
a…State or political subdivision of a State…to enact, adopt,
promulgate, and enforce any law, rule, regulation or other
measure with respect to tobacco products that is in addition
to, or more stringent than, requirements established under
this chapter, including a law, rule, regulation or other
measure relating to or prohibiting the sale, distribution,
possession, exposure to, access to, advertising and
promotion of, or use of tobacco products by individuals of
any age…”
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Maryland Clean Indoor Air Act (2007)
◦ Prohibits smoking in indoor areas open to the public, including indoor
common areas of residential properties
◦ Exempts private residences
◦ “Nothing in this subtitle shall be construed to preempt a county or
municipal government from enacting and enforcing more stringent
measures to reduce involuntary exposure to environmental tobacco
smoke” (MD. Ann. Code 24-510) – i.e. continue lack of preemption in
field of smoking regulation found in Fogle v. H&G Restaurant)
◦ The smoking law has never been interpreted to prevetn private
landowners from regulating smoking on their own property.” – Maryland
Office of the Attorney General
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Condominium rules containing restrictions on use
of individual units are permissible as long as the
rules adopted by a board of directors are properly
adopted and within the scope of the powers
delegated to the Board.
Any rule, properly adopted, is binding on residents,
whether the rule applies to common areas,
individual units or both.
Common examples: pet or noise restrictions, solar
panels, clotheslines, grills, flags, etc.
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Condominium Association
◦ Breach of Implied Covenant of Quiet Enjoyment
◦ Breach of contract – nuisance provision
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Smoking Resident
◦ Nuisance
◦ Trespass
◦ Negligence
Legal Resource Center for Public Health Policy
University of Maryland Francis King Carey School of Law
500 West Baltimore Street
Baltimore, MD 21201
(410) 706-0842
[email protected]