Honolulu Weekly

Hawai’i smokers living in apartments or condominiums are now facing a new challenge to one of the last bastions of the smoke-filled room–the privacy of their own homes.

Health advocates, led by the State Department of Health and the Coalition for a Tobacco Free Hawai’i, are quietly launching a new ’smoke-free homes initiative’ aimed at going beyond the state’s already strict anti-smoking law, which bars anyone from lighting up at work, in public spaces such as bars or restaurants, in any state or county government facility or within 20 feet of a building entrance or window.

While many apartment buildings already ban smoking in lobbies and other common areas, smoking opponents are now targeting individual living areas. And instead of pushing a new law, tobacco-free crusaders are urging condominium associations and their boards of directors, building owners, management companies and even individual apartment owners to adopt complete smoking bans, building by building.

Although at first glance it might appear that smoking in your own home isn’t anyone else’s business, smoke often flows relatively freely between apartments, meaning that one person’s private smoke is quickly their neighbors’ unwanted second-hand stink.

‘Scientific data shows there is no safe level of second-hand smoke exposure,’ said Ian Custino, who staffs the smoke-free homes initiative. ‘Based on that, we want to clear the air.’

Jolyn Tenn, co-chair of Hawai’i Smokers Alliance, said her group is ‘vehemently opposed’ to such restrictions.

‘A condominium association can legally vote to change their bylaws to ban smoking, but what’s next?’ Tenn asked. ‘If your neighbor eats certain ethnic foods that you don’t find appealing, are you going to stop them, too?’

But a legal analysis prepared for the Smoke-Free Environments Law Project at The Center for Social Gerontology in Ann Arbor, Michigan, points to cases where courts have already upheld rules against offensive odors in condominiums, making smokers fair game.

In addition to the health dangers of second-hand smoke, condominium and apartment owners need to consider fire risks, insurance costs, and other expenses associated with smoking, according to Jim Bergman, director of the Smoke-Free Environments project.

‘The economics (of a smoke-free policy) make sense in multi-unit buildings,’ Bergman said.

‘Realtors say it’s more difficult to sell a home or a condominium that has had a smoker,’ he said. ‘When an apartment turns over, if there’s been a smoker, it generally costs from $1,000 to $8,000 for rehabbing before that unit is rented again,’ including labor and materials for washing down walls, repainting and replacing carpets and draperies.

The first task is to educate people that adopting no-smoking policies is both legal and non-discriminatory, Custino said.

He is armed with a letter from the U.S. Department of Housing and Urban Development, which confirms that ’smokers are not a protected class under the Fair Housing Act,’ and smoking policies in public housing or federally supported housing are subject to local rules and regulations.

Custino also points to a Hawai’i Attorney General opinion approved in March 2007 by then-AG Mark Bennett which concluded ’state law allows a privately owned complex or condominium to rent only to non-smokers.’ The opinion further found that condominium associations are free to vote to make changes to their bylaws, ‘whether it be to allow pets or prohibit smoking.’

The opinion quotes a 1999 California court decision recognizing that ‘anyone who buys a unit in a common interest development with knowledge of its owners association’s discretionary power accepts the risk that the power may be used in a way that benefits the community but harms the individual.’ That is, unlike single-family homes, the privacy rights of condominium dwellers are naturally tempered by the competing rights of other owners in the same project.

Bylaw changes require approval by two-thirds or more of condominium owners, but Hawai’i’s AG opinion goes a step further by suggesting that condominium boards can pass rules to regulation of any behavior that ‘unreasonably interferes with the use and enjoyment of other units or the common elements by other unit owners.’ This kind of rule can be adopted without the need for a vote of owners.

Honolulu attorney Richard Ekimoto, a condominium specialist and author of the Hawai’i Condo Law blog, said he would not recommend following the attorney general’s advice to bar smoking with a simple rule change because of the likelihood of a court challenge.

‘It’s definitely something I wouldn’t do by rule, but I think there’s a reason to believe that it would be enforceable in Hawai’i if you’ve got 67 percent of owners to buy in,’ Ekimoto said.

One condominium client of Ekimoto’s law firm adopted a total no-smoking policy even before the latest smoke-free initiative got off the ground.

‘I think they were competing with some resort properties nearby that were already smoke free,’ Ekimoto said.

The Smoke-Free Environments project also suggests alternatives short of a total ban, such as allowing smoking if smoke can be contained within the smoker’s own apartment, and requiring smokers to pay for any modifications and upgrades necessary to keep smoke and odors from spreading to other units.

For more by Ian Lind, visit .[iLind.net].