Both residents and condominium/apartment officials need to overcome the tobacco taboo and learn and apply the law on smoking and toxic tobacco smoke (TTS) in housing. For individualized legal advice tailored to your situation, contact a lawyer. For an overview, click here.
For now, let's start with basic facts. (There are many links to other sites as well, which you may want to read each immediately, then return here and continue to the next link, or read this through as an overview, then do the exhaustive link-by-link approach.)
Cigarettes contain and emit large quantities of toxic chemical emissions including carbon monoxide. They are inherently dangerous. The Department of Health and Human Services (DHHS), Reducing the Health Consequences of Smoking: 25 Years of Progress: a Report of the Surgeon General, Publication CDC 89-8411, Table 7, pp 86-87 (1989), lists examples of deleterious ingredients including but not limited to:
Due to cigarettes' inherently deleterious nature and ingredients, they, when lit, emit deleterious emissions. The term is toxic tobacco smoke (TTS) or, erroneously, ETS. The Department of Health, Education and Welfare (DHEW), Smoking and Health: Report of the Advisory Committee to the Surgeon General of the Public Health Service, PHS Pub 1103, Table 4, p 60 (1964), lists examples of cigarettes' deleterious emissions compared to the chemicals' "speed limits" (official term, "threshold limit values" [TLV's] set in the toxic chemical regulation 29 CFR § 1910.1000, available at your local library). It is due to cigarettes excess quantities that deaths result. Notice the emissions vs the "speed limits" [TLV's]:
Obviously, cigarettes' toxic chemicals far exceed the "Threshold Limit Values." Wherefore TTS-caused injuries and deaths are common, foreseeable, "natural and probable consequences." TTS exposure causes Increased Risk of Death. There is a common law right to "fresh and pure air," a duty to not endanger people, and, when one does cause harm, to aid the victim. "Fresh and Pure Air" is already the law.
John Howard, M.D., Chief, California Division of Occupational Safety and Health, testified in a 20 Oct 1994 hearing before the California Assembly Committee on Labor and Employment that "tobacco smoke travels from its point of generation in a building to all other areas of the building. It has been shown to move through light fixtures, through ceiling crawl spaces, and into and out of doorways."
For background, see, e.g.,
Court cases such as Todd v Brown & Williamson Tobacco Corp, 924 F Supp 59 (WD La, 9 May 1996), admit that tobacco dangerousness is obvious. Perez v Brown & Williamson Tobacco Corp, 967 F Supp 920 (SD Texas, 4 June 1997), said tobacco is inherently dangerous and so known. The case of Banzhaf v Federal Communications Commission, 132 US App DC 14, 29; 405 F2d 1082, 1097 (1968) cert den 396 US 842 (1969) upheld the concept of cigarettes' deleteriousness:
"The danger cigarettes . . . pose to health is, among others, a danger to life itself . . . a danger inherent in the normal use of the product, not one merely associated with its abuse or dependent on intervening fortuitous events. It threatens a substantial body of the population, not merely a peculiarly susceptible fringe group."
Tobacco smoke carcinogens are absorbed by people exposed to them second-hand. "If [someone does] smoke in one part of a house [building], the smoke doesn't just stay in that part."—J Natl Cancer Institute, Vol 93 (#5) 378-381 (7 March 2001). You are in danger. Splitting into sections (segregation) does not work. Nonsmokers exposed to TTS absorb the same amount of TTS as smokers, meaning "similar nicotine levels."—New Zealand Med J (9 March 2001).
In addition to TTS, of course, there is the fire danger. Smokers regularly set themselves, others, and property on fire. See the website on smoker-fires. Your smoker neighbor or tenant may be in process right now of starting the fire that burns down the place and kills you or firemen attempting to extinguish the blaze. Such fires are foreseealbe "natural and probable consequences" of allowing smokers to reside. The policy of allowing smokers in thus to be deemed "intentional" on the part of management. "The proof of the pattern or practice [of willingness to allow smokers and smoking notwitstanding the foreseeable hazard] supports an inference that any particular decision, during the period in which the policy was in force, was made in pursuit of that policy." Compare Teamsters v U.S., 431 US 324, 362; 97 S Ct 1843, 1868; 52 L Ed 2d 396, 431 (1977).
In Commonwealth v Hughes, 468 Pa 502; 364 A2d 306 (1976), the smoker at the institution was criminally prosecuted for starting the fire that killed two firemen. The next step is prosecuting the officials themselves for having the smoker on-premises in the first place, an intentional act of negligence that led to the foreseeable fire and death. Readers are urged to write "letters to the editor" urging firemen and prosecutors to be on the alert for cases to prosecute in this way; and to urge the passing of laws (if not already existing) requiring institutions to pay for any fire-extinguishing costs arising from their having allowed smokers on-premises.
In Eacurco v Haddad, 3 Ill App 2d 480; 122 NE2d 605 (19 Nov 1954), a landlord-tenant case, the smoker tenant sprayed gasoline, then lit a cigar. As a "natural and probable consequence," a fire resulted, causing damage.
In Granger v Deaconess Hospital of Grand Forks, 138 NW2d 443 (ND, 23 Nov 1965), a hospitalized smoker was smoking in a hospital oxygen tent, then sued the hospital for letting her smoke there, when severe injury resulted from the fire. Landlord and condominium management can be next sued by smokers, when harm accrues to a smoker by their allowing smoking on their premises.
Laws already ban poisoning one's neighbors, in fact, anyone, neighbor or not. Casualties and deaths at apartments/condominiums due to smoking, are part of the overall tobacco holocaust. Such effects arise as toxic tobacco smoke (TTS) from neighbors seeps into apartments, condominiums, and causing disease, fires, deaths, not to mention the preceding annoyances, nuisance, and irritations.
There are protective legal doctrines, e.g., the "right to fresh and pure air," nuisance, "balancing the equities," breach of warranty of habitability, breach of the covenant of quiet enjoyment, sanitary duty, negligence, battery, intentional infliction of emotional distress, trespass and constructive eviction. Nonsmokers have generally—but not always, due to official corruption and racism—prevailed.
Many legal definitions cover the subject; it is recommended that you read our definitions site. This site lists a couple example definitions. The term "habitability" means "Condition of premises which permits inhabitant to live free of serious defects to health and safety." Black's Law Dictionary, 6th ed (1990), p 710. The Dictionary further states:
Obviously, the presence of people spewing deleterious TTS toxic chemicals into the air, trespassing onto you, constituting "ultrahazardous activity," causing an "increased risk of death," constituting a "taking" contrary to law and constitutional rights, violates all aspects, safety, comfort, the "sanitary" duty, etc. (Example cases below). When the landlord or others have violated your rights, they have a duty to aid you.
You already know that you must protect yourself. Officials are not pro-active, and so they typically refuse to act until a complaint is filed. You are in danger. Toxic tobacco smoke (TTS) kills more people than motor vehicle accidents, all crimes, AIDS, illegal drugs, etc. In other words, you are statistically more likely to be killed by your neighbor's tobacco smoke than by his car, his gun, or his AIDS virus. Your landlord or management are aiding and abetting, accessory to this illegal killing, of which (as the body count is at the "holocaust" level) you may well be a future casualty.
Landlords and management are "presuming to act." Setting up buildings and managing them is a voluntary act. Once they do this, they must do it right, in other words! And if they harm you, they have a "duty" to assist you, not an option, a "duty." Make sure to say so.
The law is on your side. For example, see Opinions of Attorney General 1991-1992, No. 6719; 1992 Michigan Register 177 (4 May 1992) (issue of nonsmoker only apartment complex). It verified "that neither state nor federal law prohibits a privately-owned apartment complex from renting only to non-smokers or, in the alternative, restricting smokers to certain buildings within an apartment complex."
As long ago as the case of Fish v Dodge, 4 Denio 311, 316; 47 Am Dec 254, 255 (NY, 1847), a court said: "It is a rule of the common law that a man should so use his own as not to hurt another. . . . There are many cases in the books where this doctrine has been applied . . . It is not necessary . . . that the owner should have been driven from his dwelling; it is enough that the enjoyment of life and property has been rendered uncomfortable," citing Rex v White, 1 Burr 333, 337 (1757).
Wherefore, the ancient common law right to "fresh and pure air" has a long record of judicial recognition. See Rex v White and Ward, 1 Burr 333 (Eng, 1757) and Rex v Neil, 2 Carr & Payne 485 (Eng, 1826) ("It is not necessary that a public nuisance should be injurious to health; if there be smells offensive to the senses, that is enough, as the neighborhood has a right to fresh and pure air") cited with approval in Ross v Butler, 19 NJ Eq 294, 299; 97 Am Dec 654 (NJ, 1868). That case involved a nuisance from burning pine wood affecting the adjoining land owner by smoky cinders and odors, and was banned, as not even a short nuisance is allowed when foreseeably recurring, thus applying the concept of banning "ultrahazardous activity" spreading beyond the perpetrator's person or property). There is a case list and analysis in Annotation: Nuisance Resulting from Smoke Alone as Subject for Injunctive Relief, 6 ALR 1574 (1920) (copy available at your law library).
In the above-cited Ross v Butler, 19 NJ Eq 294, 302; 97 Am Dec 654, 660-1 (NJ, 1868), the court also said: "The law . . . must be regarded as settled, that when the prosecution of a business, of its lawful, in the enighborhood of a dwelling-house, renders the enjoyment of it materially uncomfortable, by the smoke and cincers, or noise or offensive odors produced by such business, although not in any degree injurious to health, and it will be restrained by injunction. . . . This court will not determine that a family shall have their dwelling house made uncomfortable to live in for twelve hours, once in two weeks . . . It is surely no justification to a wrong doer, that he takes away only one-twenty-eighth of his neighbor's property, comfort, or life."
One of the first judicial warnings to evict smokers was issued in Keyser Canning Co v Klots Throwing Co, 94 W Va 346, 361; 118 SE 521, 527 (1923), where the West Virginia Supreme Court says that the smoker who had set a fire burning a building, "smoked . . . notwithstanding repeated warnings. Why was he warned? Because defendant knew of the danger. Then, when it saw [that he, the smoker] disobeyed its warnings, it was its duty to stop his smoking there, and, if necessary, to discharge him . . . put him out of the building."
(a) Examine your lease or condominium agreement.
(b) Photocopy it for a working copy, so you can mark on it, highlighting key terms
(c) Find the terms pertaining to fresh and pure air, for example, words such as "safe," "comfort," "habilitability," or whatever terms are included.
(d) Highhght for easy reference, every clause that pertains to fresh and pure air, and the section on notifying management.
(e) Following its instructions, prepare a "violation notice", with a checklist format, for the offenses using the pertinent sections of your lease. Record any pertinent dates, tenant names, and apartment numbers, or guests who performed the offense (smoking violating the various clauses). If you took pictures, include a copy.
(f) Find the clause, or state or local law (you may need the aid of the local library for this), the time limit in which the landlord is to solve the problem. It may be called a "remedy period" for example. Cite in your "violation notice" the remedy period
(g) Specify whatever the documents say about landlord response, perhaps, notifying you as what remedy planned to be used.
(h) Photocopy the "violation notice", keeping a copy for your self, and one for your support group, if you have one.
(i) Send the "violation notice" with a cover letter including the "notification of negligence." If need be, of course, alter the words to be most appropriate for your situation.
II. LEARN TOXIC TOBACCO SMOKE DANGERS, THEN TELL OTHERS
People who may not otherwise be concerned about Toxic Tobacco Smoke (TTS) may view it quite differently if you inform them of the toxic ingredients. And tell them of the centuries of data linking tobacco to multiple adverse effects. Our website on tobacco effects has details on a number of subjects, and links to court cases as well.
Inform others of these effects. You can download and format the material, in effect, using the data as, let's say for you, a periodic newsletter you can issue on each effect. You can provide copies of neighbors, post copies on bulletin boards, slip it under apartment doors or in mail boxes (to the extent permitted), and perhaps even have it printed in a condominium or apartment newsletter or flyer. You can also send letters to the editor on each effect, making for a series of letters.
III. THE ISSUE OF OBTAINING MEDICAL DOCUMENTATION
Poisoning people is illegal. Period. Shooting people is illegal. Period. It is utterly unnecessary to provide "medical evidence" that foreseeable bullets or poisons will harm you. In law, this is already established fact. Absolutely no need whatsoever for individualized proof. If someone tells you that they refuse to protect you unless you provide individualized medical proof, get it in writing, and use it as evidence of premeditated intentional malice on their part.
Of course, if you do have such evidence, it is not illegal for you to mention it. But be aware, there are malicious people out there who will turn around and harass you in retaliation for your having procided such evidence. Nazis took Jews' glasses away from them. There are people who enjoy brutalizing others; that is why in some states, there are laws providing for extra penalties for harming "vulnerable" individuals. Check your jurisdiction's laws.
With these caveats in mind, here is something on individualized medical evidence. If you, (or someone in your apartment) has asthma, emphysema, sinusitis, hay fever, allergies, pulmonary or cardiac disease, or other conditions which make you deemed unusually sensitive to tobacco smoke, you might make your case stronger by obtaining a letter to that effect from a physician. (Read our site on tobacco toxic chemicals. Such "sensitivity" is tantamount to a war injury, and is conclusive of attempted murder as per standard legal definitions and case law.)
A copy of the physician's letter can then be sent by CERTIFIED MAIL, RECEIPT REQUESTED to the landlord or condominium management—and possibly to the persons who are smoking—to put them on legal notice of your condition. Be aware that smoking is typically an addiction, involves smoker mental disorder, and causes brain damage impairing smokers' ethical and impulse controls, so you may be subjected to violent retaliation, including crime.
Remember, poisoning people is illegal even if you do not already have a tobacco-caused injury, e.g., a recognized medical condition such as emphysema. Prisons typically contain criminals who committed poisoning of healthy people. At The Nurnberg Trial, 6 FRD 69 (1946), people were convicted or murder without having to prove that each and every Jew, Pole, gypsy, etc., was somehow "allergic" to cyanide, carbon monoxide, or bullets!!
Be aware that the sole reason why the issue of a nonsmoker being adversely impacted by tobacco smoke, presenting individualized evidence of harm—why that issue even comes up, is malice, corruption and similar unethical, immoral, and illegal reasons. The government enforces the law with respect to spewing toxic chemicals in all other aspects of life, including on these same exact chemicals (carbon monoxide, cyanide, etc.). Repeat, that government officials do not do so on this subject is due to personal corruption on a mass basis constituting the proximate cause of the ongoing tobacco holocaust at a level of casualties far exceeding that prosecuted in The Nurnberg Trial, 6 FRD 69 (1946).
If you decide to present individualized evidence of the impact on you, despite or because of the malice of those you deal with, you may be able to obtain such a letter by demonstrating to a physician that you suffer specific problems (such as headache or sore throat) after exposure to tobacco smoke. (Malicious people refuse to pay attention to evidence of the long term effects, so that is why focus on the short-term effects is mentioned).
IV. SEEK OUT OTHER NONSMOKERS FOR SUPPORT
There is an old saying: "United we stand, divided we fall." It is true. Be utterly confident that you are not the only nonsmoker being adversely impacted. We are in a holocaust, not a one-time problem as malicious people like to imply. But being realistic, be aware that a common complaint coming from many people in a building is more likely to be taken seriously than a complaint from only one person.
So contact other nonsmokersby all possible means: (a) one-to-one basis, (b) speaking out at tenant meetings, (c) writing articles for any apartment or condominium newsletter, and (d) posting notices in elevators and on apartment bulletin boards.
Even residents who do not currently observe the impact on themselves in this universal malice war-level hazard and holocaust as their noticing impact on themselves is yet future, may nevertheless be sympathetic and lend valuable support, particularly once they know that exposure to TTS can trigger heart attacks as well as cancer in nonsmokers, lead to them being killed by a smoker drunk-driver, smoker drug-abuser, or otherwise victimized by a smoker criminal.
V. SEEK HELP FROM LOCAL ANTISMOKING ORGANIZATIONS
Local antismoking groups are often in the best position to advise you concerning local laws, to help you find doctors and other witnesses who can assist you, to help obtain publicity about your plight, to put pressure on the management, and if necessary to help you find a cooperating attorney. If there is none such local organization, establish one.
You may also get some aid from local or state chapters of the American Cancer Society, American Heart Association, American Lung Association, and other local antismoking groups for help. You can also use the Internet to find nonsmokers' rights groups, if any, in your state. Our homepage has some listing of such sites.
VI. SEEK INFORMATION FROM LOCAL JURISDICTIONS SUCH AS FIRE DEPARTMENTS
The fire code applicable to your building may already ban smoking on the fire-hazard basis. If so, have the fire department issue a violation notice to the building officials. Do not feel bad about so doing. The building officials had lacked respect for the rule, and were so disrespectful of your right to life that killing you in a fire was not deemed by them enough to even deter their misconduct. The management deemed you expendable, your human rights nothing in their eyes, a typical immoral attitude in a holocaust situation.
VII. INFORM MANAGEMENT THAT THERE IS NO SUCH THING AS A RIGHT TO SMOKE
The landlord may plead or feign ignorance. This could confuse you, unless you know the answer, that ignorance is not a defense. In fact, it is proof of negligence and wrong-doing. But such misconduct/negligence is.widespread. The landlord or condominium management may assume that there is nothing they can do about smoking in individual apartments. Treat such an assertion as a confession of negligence. Get it in writing. (Or at least prepare a memo of such confession, and get it notarized as future evidence.) Use it to show the culpability of the landlord or management.
Ignorantia eorum quć quis scire tenetur non excusat; ignorance of those things which one is bound to know excuses not.
Ignorantia juris quod quisque tenetur scire, neminem excusat; ignorance of the [or a] law, which every one is bound to know, excuses no man.
Ignorantia legis neminem excusat; ignorance of law excuses no one.
Ignorantia juris non excusat; ignorance of the law excuses not.
Reason: Ignorare legis est lata culpa; to be ignorant of the law is gross neglect—five Latin sayings to the same effect, it is such a well established concept.
In law, there is no excuse or defense for ignorance. This is especially so on this subject, wherein the hazard has been known for centuries. The purported ignorance of theirs, do not believe it. I'ts not a "legal fact" as knowledge is presumed. Worse, the person may simply be lying, be pretending to be ignorant. The voluminous court cases (links at our tobacco effects site) on the subject are public record!!
So it is well and long established in law that ingesting poison (lay term, "smoking") is criminal, not a right. Ask Dr. Kevorkian!! People who claim that committing a crime is a right are knowingly lying!
Pursuant to the above data, if your landlord or other housing officials make such a false claim (smoking = right v crime), you are prepared to answer. Their claim is certainly not the law. Many activities which occur in one apartment, but which cause annoyance, irritation, or health problems in another, can be regulated or prohibited outright. Spewing poison is a classic example!! (Is this hard to understand??!!)
Common examples are the playing of loud music, the storage of paint or other flammable materials, playing ball or other activities that cause excessive vibrations, etc. The law is clear that there is no constitutional or other legal right to smoke, even in one's own dwelling. See custody cases wherein judges have banned smoking in one's home, the common law "right to fresh and pure air," and (when they existed) Tennessee law banning cigarettes from the state, and Iowa and Michigan law banning cigarettes even being manufactured. Obviously, a product that cannot exist, cannot be used anywhere, including in the home!
VIII. CONSIDER AND PROPOSE DIFFERENT REMEDIES
Remember, to the officials, it is ok to kill you. The hazard is known for centuries. They are knowingly aiding and abetting and accessory to potentially your death, for which they, like the Nazis at Nurnberg, may be executed in the future. The people they mass-exterminated had no legal obligation whatsoever to offer any suggestions to the would-be killers as to how to avoid doing the killings. You have the same human right. You can remain silent, all the legal responsibilities are on the perpetrator.
|"The proof of the pattern or practice [of willingness to allow smoking notwitstanding all the above material] supports an inference that any particular decision, during the period in which the policy was in force, was made in pursuit of that policy." Teamsters v U.S., 431 US 324, 362; 97 S Ct 1843, 1868; 52 L Ed 2d 396, 431 (1977).
Violations of criminal law can indeed result in damage to private citizens. Ware-Kramer Tobacco Co v American Tobacco Co, 180 F 160 (ED NC, 1910).
Litigants can show as part of the evidence in his/her own case, the guilt of others linked to the current defendant, in showing a pattern. Locker v American Tobacco Co, 194 F 232 (1912).
But as an immediate practical matter, you may choose to offer some sugggestions. (This is tantamount to a woman "bargaining" with an attacker who may be a rapist, so as to protect herself in the immediate situation, until the violent firepower of the local police authorites can come to the rescue).
It is of course possible to order a person not to smoke in an apartment, or to smoke anywhere. Governments over the centuries have done exactly that!! And it is still the law, no spewing poison! Is this hard to understand??!!
But if you are dealing with in essence a rapist management, a Nazi, you may be feeling almost forced to compromise your legal rights, just as the woman "bargaining" with the apparent rapist. Here are some such concepts in that type of situation: Order people to smoke only in certain rooms or with a window open. Add more fresh air intake into the ventilation system. Change, clean, or install better filters. Restrict the amount of air exhausted through the ventilation system from apartments where persons are smoking.
Whatever is done, keep records of the activity. Other crime victims have done the same, useful thereafter as evidence for obtaining an conviction. Never forget, you are in a holocaust, and your landlord or condominium official may be executed in the future for his crime of aiding and abetting your death. You are of course, in the interim, entitled to try to save your own life.
IX. CONSIDER ADVISING MANAGEMENT OF THEIR POTENTIAL LEGAL LIABILITY
It is unfortunately true in our society that there is a widespread prevalence of immoral, unethical, and "universal malice" attitude people. More people are being killed each year by tobacco smoke than during the entirety, for example, of the Vietnam War!! It is clear that people often refuse to act unless legal consequences are suggested. Therefore, if all else fails, you may wish to advise the landlord, condominium management, or even the individual members of the condominium board of possible legal liability for failing to take the mandatory-by-law steps to protect life and health generally, including your specific life and health, especially once the problem has been formally brought to their attention. Such notification can best be made politely but firmly in a CERTIFIED MAIL RECEIPT REQUESTED letter sent by you, a local antismoking group, or an attorney.
The word "politely" is there not because you need to be told. You are the crime victim. Crime victims are allowed to do whatever it takes to defend themselves from a rapist or killer, scream, kick him where it counts, rip his eyes out, stab him, or whatever. This is not "polite." There is no law requiring a crime victim to be "polite" in self-defense. This word "polite" is included solely to remind you that you are dealing with criminals, "universal malice" type, who may violently attack you, as per smoker-criminals often misperceiving behavior as cited at our prevent-crime website, so you can be circumspect and potentially avoid yet additional attack on you.
XI. DETERMINE IF STATE AND LOCAL BUILDING CODES ARE BEING OBSERVED
One tenant's investigation revealed that the presence of a defective party wall caused his apartment to fill with tobacco smoke from the adjoining apartment. When the wall was properly reconstructed, the problem ceased.
Management should have checked this up-front. But in a "holocaust," such avoidance measures are undone, leaving it to you, the crime victim, to raise them
The key to winning the rights herein cited, e.g., the "right to fresh and pure air," is to cite it in writing. And to specifically cite the legal term for the right being violated, the word "nuisance." In law, that word means more than in lay language, in law it means an illegal act, illegal under civil law. To learn your rights, here are some steps to follow: Go to your law library, find the books for your state, look for the ones called "Digest." They are alphabetical, usually 20-30 volumes. Open the "N" book, find the term "nuisance," read all the case summaries, find the ones like your situation. Then record the case numbers and volume and page numbers. Then find those volumes and pages. Then read the full text of each case you initially thought was relevant, to verify whether it is. Once done, you now have current precedents in addition to those listed herein, and your list is tailored to your jurisdiction.
XII. SEEK HELP PURSUANT TO THE FEDERAL FAIR HOUSING ACT
A Federal Fair Housing Act 42 USC § 3601 - § 3631 (1968) exists that protects from discrimination in housing. It is enforced by the federal government, specifically, by the U.S. Department of Housing and Urban Development (HUD).
You in essence are being denied fair housing, i.e., being operated pursuant to law. By there there, you have shown that you are qualified to have rented or purchased. You have requested compliance with the non-discriminatory enforcemernt of the rules. Other rules are being enforced, not these, re safety, health, non-spewing of poison. The non-enforcement, non-compliance is obviously different treatment.
The place is obviously the workplace for some of the people, the workers there. So use the logic from workplace anti-TTS cases as well, and the cases against negligent hiring, here, in essence, negligent allowing smokers in.
|The bottom line is that what is at issue is an "ultrahazardous activity" as that term is defined in professional material. See an analysis of the concept by the U.S. Supreme Court in the case of Laird v Nelms, 406 US 797; 92 S Ct 1899; 32 L Ed 2d 499 (1972). There, sonic booms and dynamite blasting are discussed in context of "ultrahazardous activity." Each produces a spreading effect. Cigarettes do that via fires and via their toxic chemicals, superheated, moving at high speed. In contrast to sonic booms and dynamite blasting, cigarettes kill 37,000,000 in the U.S. alone, and constitute a "holocaust." This is the most "ultrahazardous activity" on earth.|
XIII. SUGGEST LANDLORDS ESTABLISH SMOKEFREE BUILDINGS
This is of course already the law. No spewing toxic chemicals!! But in this holocaust, to assist you, this sad suggestion must needs be made. Some landlords with several buildings have arranged for smokefree and smoking buildings. Of course, it isnillegal to killthe smokers too, but in a holocaust, save yourself first, save the others later.
XIV. IF ALL ELSE FAILS, CONSIDER LEGAL ACTION
As a last resort, you may wish to seek the advice of an attorney to represent you concerning this matter, and to consider the feasibility of bringing legal action against the offending tenant, the landlord or condominium, or both, under theories of breach of the covenant of quiet enjoyment, negligence, nuisance, etc.
Don't be bluffed by management promises to post "no-smoking" signs. They will likely not be enforced. Management policy and signs without enforcement are not upheld in court when harm results, see for example, the case of Allen v Posternock, 107 Pa Super 332; 163 A 336 (16 Dec 1932) (the smoker injured someone, by smoking violating a ban on smoking, but the ban was unenforced, so the company was found negligent anyway).
One issue is the organization's negligent admissions policy, admitting persons posing a foreseeable danger. If a lawsuit becomes necessary, the injunction should order the organization to cease and desist the negligent admissions practices, and to undo the continuing effects of the past negligent admissions.
It is hoped by the writer to be able in the future to assist more than by this site, but that, sadly, is not possible at this time.
XV. READ BACKGROUND MATERIAL, THEN BECOME AN ACTIVIST
Read model (sample) laws on the TTS subject. Read Tennessee's 1897 cigarette sales ban law. Read Michigan's 1909 cigarette manufacture and sales ban law. Read widely as well, including on the pre-Civil War issue underlying and giving rise to tobacco even existing in the U.S. This will help you understand that the TTS hazard was known long ago, tobacco adulteration was known long ago, the cancer hazard was known a century ago, and smokers themselves were suing due to injuries from the tobacco hazard. Recognize the concept of "systemic solution" as distinct from the case by case approach. Circulate the URL of this website to others similarly concerned or affected.
It is well understood that a good way to learn and master a subject, is to explain it to others. Their questions will assist you! Don't hestitate to re-read and study the material. Be assured, the opposition does!
Then set out in an organized way to engage in letter writing, yourself or in combination with others, to get laws passed banning tobacco manufacture and sale. Write regularly. Start with newspaper "letters to the editor." Or choose other intended recipients. In any case, list your intended recipients, then keep to the schedule. Examples:
|President George W. Bush||U.S. Senator _______||U.S. Representative __||Governor ___||State Senator __||State Representative __|
|1600 Pennsylvania Avenue||Senate Office Building||House Office Building||State Capitol||State Capitol||State Capitol|
|Washington DC 20500||Washington DC 20510||Washington DC 20515||City State Zip||City State Zip||City State Zip|
Suggested wording is that you say: This is a request that you take action to get a law passed that will serve to ban the manufacture and sale of tobacco products. Michigan already has such a law concerning cigarettes, law number MCL § 750.27, MSA § 28.216. The tobacco hazard is clear. Please take prompt action to ban tobacco manufacture and sale. . . . .
It would also be helpful (for establishing a precedent of enforcement) for you to read the Michigan law site, then write to Michigan officials complimenting them on the good law, MCL § 750.27, MSA § 28.216, mention its being known nation-wide as an excellent law, and urging enforcement as a life-saving emasure.
XVI. DO NOT ACCEPT A SMOKING PARTIAL BAN
Do not accept a partial smoking ban. Why? Well, ask Dr. Kevorkian! He has learned that it is not legal to kill a person, even a consenting adult, ANYWHERE. The laws against killing people apply everywhere! There is no place, no "free-fire zone," as in combat, where it is ok to spray toxic chemicals and kill people! Wherefore partial bans are unconstitutional. See our website elaborating on the unconstitutionality of partial bans.
This does not mean to REFUSE any offer. You can "accept" anything, then appeal it. Jews "accepted" being killed at Auschwitz. But The Nurnberg Trial, 6 FRD 69 (1946), disregarded such "acceptances." Nobody's "consent" to less than full compliance with the law has any legal standing whatsoever! (See our website on legal definitions, including so-called "consent.")
So "accept" all offers, then appeal, citing the offer of less than full compliance as showing bad faith on the perpetrator's part. The making of an offer shows that they recognize the hazard, and proves malice, specific intent to harm, by their refusal to eliminate the hazard.
If you "refuse" an offer, some corrupt officials may hold that against you. Remember, there is corruption and bribery among officials, lawmakers, judges. So they may retaliate. Be careful to couch your words in words unlikely to trigger their retaliation. (Get a lawyer if need be.)
Think like a police officer. If you are being shot at, and the shooter offers to reduce the rate of fire against you, "accept." But keep on shooting back, keep on prosecuting!
Cases involving toxic tobacco smoke (TTS) incursions and assaults into other dwellings have occurred. (Copies are available at some law libraries). Those anti-TTS cases used legal doctrines such as nuisance, breach of warranty of habitability, breach of the covenant of quiet enjoyment, negligence, battery, intentional infliction of emotional distress, trespass and constructive eviction. Due to the above mentioned governmental corruption, some nonsmokers have prevailed. Many did though, and some received monetary compensation, while others obtained restraining orders or injunctions. Here are examples:
Donath v Dadah, No. 91-CV179 (Worcester Cty., MA, Housing Court Dept, 1991). The tenant sued her landlord for nuisance, breach of warranty of habitability, breach of the covenant of quiet enjoyment, negligence, battery and intentional infliction of emotional distress due to exposure to TTS coming from the second floor where the defendants live. Plaintiff alleged that she suffered asthma attacks, labored breathing, wheezing, prolonged coughing bouts, clogged sinuses and frequent vomiting due to the exposure to the TTS. The case was settled for an undisclosed sum of money in December 1992.
Fox Point Apt v Kippes, No. 92-6924, (Lackamas County (OR) Dist. Ct. 1992). A landlord moved a known smoker into the apartment below a nonsmoking tenant who suffered nausea, swollen membranes and respiratory problems from the cigarette smoke entering her apartment. The tenant sued the landlord, alleging breach of habitability and breach of the covenant of peaceful enjoyment which the common law implies in every rental agreement. The jury unanimously found a breach of habitability, awarded medical costs and reduced the rent by 50%.
Dworkin v Paley, 638 NE2d 636; 93 Ohio App 3d 383 (21 March 1994). When the landlord, Paley, a smoker, moved into the dwelling unit below Dworkin, a nonsmoking tenant, Dworkin wrote to Paley that the smoking was annoying him and causing physical discomfort, noting that the smoke came through the common heating and cooling systems shared by the units in the two-family dwelling. Later, Dworkin vacated the premises and subsequently brought an action to terminate the lease and recover his security deposit from landlord, Paley. The suit alleged that Paley had breached the covenant of quiet enjoyment and the statutory duties imposed on landlords (including doing "whatever is reasonably necessary to put and keep the premises in a fit and habitable condition"). The Court of Appeals held that tobacco smoke could be considered a breach of the covenant of quiet enjoyment and remanded the case for further proceedings after concluding that affidavits presented "the existence of general issues of material fact concerning the amount of smoke or noxious odors being transmitted into appellant's rental unit."
|The court said, "In Ohio, a covenant of quiet enjoyment is implied into every lease
contract for realty and protects the tenant's right to a peaceful and undisturbed
enjoyment of his leasehold. Glyco v Schultz (1972), 35 Ohio Misc 25, 33; 62 OO2d
59; 289 NE2d 919, 925." Check the law in your area, it is undoubtedly likewise.
Pentony v Conrad et al., NJ Super. Ct. (1994) . The Pentoys brought an action to enjoin their downstairs neighbors from smoking between 4:00 P.M. and 9:00 A.M. when the Pentonys were home from work because the TTS from the neighbor's apartment seeped throughout the Pentony's apartment. After a hearing, the judge ordered the apartment directors to attempt to resolve the dispute out of court. The apartment neighbors settled their dispute in 1995 but the terms of the settlement are confidential. See
"Neighbors Settle Smoking Dispute," The Record (Bergen County, NJ), March 2, 1995, C12; "2 Smokers Are Sued by Neighbors in Apartment Above Them," N Y Times, April 28, 1994, B6; "US Couple Sue Downstairs Neighbours for Smoking, The Times, April 29, 1994; Gold, J., "Judge Rejects Bid to Stop Neighbors Smoking," The Record (Bergen County, NJ) S06; Hanley, R., "Judge Turns Down Couple in Quest of Anti-Smoking Order Against Their Neighbors," N Y Times, April 29, 1994, B5; "Couple Whose Neighbors Smoke Sent to Co-op Board," Orlando Sentinel, April 30, 1994, A18; "Judge: Neighbors' Smoking Dispute Must be Resolved by Board," The Legal Intelligencer, May 2, 1994, 8; "Complex Orders Repairs in Fight Over Smoking," The Record (Bergen County, NJ), May 13, 1994, A27; "Truce Is Reached in a Co-op Clash Over Smoking," May 13, 1994, B4; Boronson, W., "Love Thy Neighbor: Different Ways to Cope with the Nuisance Next Door," The Record (Bergen County, NJ), May 15, 1994, R1; and "Upstairs, Up in Smoke," National Law Journal, May 23, 1994, A23.
Snow v Gilbert, Middlesex Cty. (MA) Superior Ct., Docket No. MICV94-07373 (1994). When a landlord violated an earlier agreement not to rent the units below hers to smokers, a tenant won a temporary injunction against her landlord to prevent him from renting the units to smokers, at least until she can relocate. The smoke from those units seeped into the plaintiff's apartment, causing a severe reaction, since she suffers from multiple chemical sensitivity, pulmonary fibrosis and CREST, a form of scleroderma.
Note that the relocating aspect is wrongful, people are entitled to their legal rights WHERE THEY ARE, State of Missouri ex rel Gaines v Canada, 305 US 337; 59 S Ct 232; 83 L Ed 208 (1938); and compare Alfred W. Blumrosen, Donald M. Ackerman, Julie Klingerman, Peter VanSchaick, and Kevin D. Sheehy, "Injunctions Against Occupational Hazards: The Right to Work Under Safe Conditions," 64 California Law Review (#3) 702-731 (May 1976) (the right to safety is where you are, not elsewhere).
Richard Layton v Jolley, Case No. NS004483, Superior Ct. of Calif., Los Angeles County (April 1996). Plaintiffs' sought an injunction prohibiting defendants from harassing them by smoking marijuana, cigarettes and cigars in the garage located under plaintiffs' condominium. Plaintiffs claimed that the exposure to ETS had forced them "to evacuate our own home for hours every time the defendant goes in his garage to smoke." The court issued a restraining order, specifying that "Defendant must stay away from his garage while smoking." See Russell, K., "Court Clears the Air," Press-Telegram, April 26, 1996. Layon reports that the judge asked, "Do you smoke with the door open? Do you run a fan?" The smoker reply was, "It is my constitutional right to do whatever I want in my own property." The judge (pursuant to the common law "right to fresh and pure air") said, "Oh no, not if what you are doing affects someone else's health."
50-58 Gainsborough St. Realty Trust v Haile, No. 98-02279, 13.4 Tobacco Products Litigation Reporter 2.302 (Boston Housing Court, 1998) cited in Donnelly v Cohasset Housing Authority, 16 Mass L Rptr 318; 2003 WL 21246188 (Mass Sup Ct 2003) and Merrill v Bosser (Case No. 05-4239 COCE 53 (17th Jud Circ, Broward County, Florida, 2005). A nonsmoker above a smoky bar withheld her rent, reporting that the tobacco smoke seeping into her apartment from the bar directly below deprived her of the quiet enjoyment of that apartment. When the landlord sued the tenant for failure to pay rent, Housing Court Judge E. George Daher determined that the smoke from the bar below made the apartment "unfit for smokers and nonsmokers alike." The judge further found that "the evidence does demonstrate to the Court the tenants' right to quiet enjoyment was interfered with because of the [TTS] that was emanating from the nightclub below." The judge awarded the tenants $4,350. See Gregorian, D., "Law Firm Smokin' Mad at Neighbors," New York Post, June 23, 1998, 22; Estes, A., "Tenant Wins Suit over Smoky Home," Boston Herald, June 10, 1998, 1, 4; and "Judge: Landlord Must Stop Secondhand Smoke," The Recorder (Greenfield, MA), June 11, 1998, 9; Ed L. Sweda, Jr., "Lawsuits and secondhand smoke," Tobacco Control 2004;13(Suppl I): i61-i66, at i63.
In re U.S. Department of Housing and Urban Development (HUD) v. Kirk and Guilford Management Corp. and Park Towers Apartments, HUD Case No. 05-97-0010-8, 504 Case No. 05-97-11-0005-370 (1998). There is a Federal Fair Housing Act, 42 USC § 3601 - § 3631 (1968), that protects from discrimination in housing. In September 1996, Nancy V. Kirk filed two complaints under Section 504 of another law, the Rehabilitation Act of 1973, as amended, and the Fair Housing Act of 1968, as amended against Guilford Management Corp. and Park Tower Apartments. Park Tower is a HUD-subsidized high-rise for the elderly and the disabled located in Loves Park, Illinois. Ms. Kirk claimed that she has a respiratory condition aggravated by her neighbors' TTS entering her apartment. The parties entered into a conciliation agreement, approved by HUD in January 1998, that provided that Park Tower would go smoke-free, beginning with new tenants moving in on or after March 15, 1998. Violators of the no-smoking policy are subject to written warnings and then to eviction. Park Tower also agreed to allow Kirk to move into a less smoke-filled area as the transition to a smoke-free building will not occur immediately. This delay aspect is wrong, as rights are to be enforced immediately, without delay, Watson v City of Memphis, 373 US 526, 533; 83 S Ct 1314; 10 L Ed 2d 529 (1963). (Be prudent in dealing with HUD. Be aware that HUD may not abide by your constitutional rights, nor enforce the law adequately, as HUD has itself been found guilty of discrimination, favoring segregation, see the case of Hills v Gautreaux, 425 US 284 (1976). Not enforcing nonsmokers' rights = just another example of segregation, confining nonsmokers to a small so-called "smoke-free" section, whereas the right to fresh and pure air is for everywhere.)
Weil, Gotshal & Manges LLP v Longstreet Associates, L.P., Supreme Court of the State of New York (1998). A 675-lawyer firm in New York which occupies 11 floors of the General Motors Building filed suit against the landlord and a tenant located one floor below its offices. The suit alleged that the TTS from the floor below caused the firm's partners and employees "illness, discomfort, irritation and endangerment to their health and safety" and prevented some of them from being able to use or occupy their offices. The firm alleged that the landlord breached its contract and constructively evicted the plaintiff and further alleged that both defendants permitted a nuisance, engaged in trespass and were negligent. About a month after the suit was filed it was settled when the landlord and tenant agreed to install additional ventilation. See Hansen, Mark, "Smoke Gets in Your High-Rise" ABA Journal, November 1998, 24. See also Gregorian, D., "Law Firm Smokin' Mad at Neighbors," New York Post, June 23, 1998, 22; and Arena, S., "Lawsuit Raises Stink Over Cigar Smoking," Daily News (New York), June 23, 1998, 17. (Pertinent terms above (e.g., "habitability," "sanitary").
Robin Haines Merrill v Jim Bosser (Case No. 05-4239 COCE 53 (17th Judicial Circuit, Broward County, Florida, 29 June 2005) (Statement by ASH) (verdict to nonsmoker re condominium neighbor's tobacco smoke)
To head off such litigation, a Colorado condominium is considering enforcing its anti-nuisance clause in its Bylaws. See the article, "Smoking ban gets lawyer’s green light," Aspen Daily News (9 August 2008).
|See also Prisoner Housing Cases|
Benefit of Citing RICO In Your Case
RICO is the anti-organized crime law that the 22 September 1999 Department of Justice case cited to recover damages from tobacco companies. RICO covers all defined racketeering acts, generally, extortion, mail fraud, falsification of documents, killings, etc. The benefit to the crime victim, the litigant, you, is that RICO provides for TRIPLE damages, pursuant to 18 USC § 1964.(c). In legal terms, this constitutes the value of the underlying claim, Basic Food Industries, Inc v Grant, 107 Mich App 685, 691; 310 NW2d 26, 29 (1981).
RICO is comparable to, and likely additional to, state law, for example, the Michigan trebling law, MCL § 600.2907, MSA § 27A.2907, as the harm caused is malicious. A pertinent Michigan trebling case is Pauley v Hall, 124 Mich App 255; 335 NW2d 197 (1983). Check your state for your pertinent laws and cases.
David B. Ezra, "Get Your Ashes out of my Living Room!—Controlling Tobacco Smoke in Multi-Unit Residential Housing," 54 Rutgers Law Review (#1) (Fall 2001)
Dr. Joyce Starr, Secondhand Smoke Crimes: When Neighbors Poison You (2009) ("explodes the myth that a chain-smoker’s home is his/her castle and that smoker rights prevail in buildings where victims cannot avoid and/or defend themselves against the smoke.")
Safe Homes Site of Minn.
Smoke Free Organization Site