In an unprecedented move, a cooperative apartment building on the Upper West Side of Manhattan has voted to bar cigarette smokers from purchasing apartments. New co-owners will be permitted to purchase only if they accept the co-ops terms: no cigarette smoking, even in their own apartment. If new residents violate the no-smoking code, they will be subject to eviction. The new rules will not apply to current apartment owners who purchased their residences prior to the new non-smoking code.
Some see this move as draconian, taking away the "rights" of individuals who choose to smoke in their own homes. Still others have declared the move "unconstitutional" or "illegal," arguing that addiction to cigarette smoke is a disability and as such cannot be discriminated against. Proponents argue that pervasive cigarette smoke is a severe annoyance, if not a health hazard, and that co-op owners have the right to set their own rules in the best interest of all residents. What is the best way to analyze this apparent dilemma?
We might first start by assessing whether a problem related to cigarette smoke exists in apartment buildings and, if so, what the nature of that problem is.
I can speak from first-hand experience on this issue. I live on the 47th floor of a new condominium in Manhattan. Shortly after we moved in, we began to detect cigarette smoke in one bedroom and one bathroom. Over time, the smoke became more intense, saturating sheets, towels, and clothing in the rooms. We learned from the building staff that drifting cigarette smoke is a common problem in apartment complexes. The smoke gains access to adjacent apartments through electrical outlets, telephone cable apertures, and door latches, among other routes. We sought protection from the invading smoke by having these apertures completely plugged up, but we missed at least one point of air-exchange with the apartment below us and this past weekend found the same two rooms again drenched with smoke. Further inspection found another point of access (hopefully the last), and it was sealed off. Time will tell if we are really protected from our neighbors' smoke.
The reality is that cigarette smoke has a remarkable ability to travel from one apartment to another. So while the smoker in apartment A may have the "right" to smoke in his or her home, the question is: Does he or she have the right to pollute the space of the neighbor in apartment B with the resulting second-hand smoke? Clearly the answer is no.
It appears that the drifting smoke problem is much more prevalent today than it was ten or more years ago. This is largely because the substantial restrictions on smoking in public venues has made all of us much more sensitive to smoke when we do encounter it.
One might argue that the health risks of second-hand smoke have been greatly exaggerated, so it is a non-problem. But there are two responses appropriate here: First, the long term, chronic impact of environmental tobacco smoke on risk for cancer and heart disease may have been overstated by some anti-smoking advocates, but there is clear and compelling evidence that regular exposure to ETS increases the risk of respiratory and ear ailments in nonsmokers and can be a trigger for asthma attacks. Second, this is more than a health issue. Cigarette smoke stinks and makes everything it comes in contact with stink.
Is there a technological solution for apartment buildings that would restrict the smoke to only the smokers' apartments? Maybe. There are sensitive devices available which can detect the source of invading smoke in a non-smoker's apartment. Presumably if the point of entry can be exactly determined, it can be blocked. Further protection might result from blocking points of exit in the smoker's apartment as well, but in some cases, maybe most, the cigarette smokers may deny access to maintenance workers who seek to block the exiting smoke, arguing that there is no legal imperative for them to cooperate with such efforts.
Thus the technical solutions may not work because there are so many points of entry for the smoke, because the source cannot be determined, or because the smokers will not agree to any form of remediation which involves work on their apartments. What, then, is the solution for a nonsmoking condo or co-op owner who regularly finds his apartment drenched in cigarette smoke? Apparently, the co-op board of that West Side apartment building could think of only one solution: keep smokers (or at least new smoking residents) out.
Dr. Whelan, President of ACSH, holds doctoral and master's degrees in public health.
 |
|
| Responses:
May 3, 2002 The intolerant few are dictating what odor will and will not be tolerated. Even the nonsmokers who complained about the smoke are quoted in the news as saying this is not what they intended to happen and think it goes too far. Cigarette smoke stinks? The stink is in the nose of the beholder. I love the smell of cigarette smoke when I walk into a room where smoking has taken place. I gag on the smell of my co-worker's fish lunch that was just warmed up in the common microwave. Needless to say, that odor permeates apartments of others, too. Can I demand that no resident be allowed to cook fish in their apartments because it causes me to gag and cough? Leave the home alone. Our forefathers are rolling over in their graves. Audrey Silk May 6, 2002 Interesting that you, Dr. Whelan, managed to solve your own problem of unwelcome effluence from another apartment but applaud this intrusive rule. Also interesting is your characterization of the hypothetical recalcitrant smoker as an obstinate, unreasonable neighbor. Amazing that you can see the injustices in every other area, but here you're the typical elitist prohibitionist. And that's a real shame. M.L. Herrin May 6, 2002 Since I believe in private property rights and this ban is not the result of the heavy hand of government, I have to agree that the co-op board has the "right" to set this policy, just as the owner of a restaurant or bar or any other establishment has the "right" to accommodate smokers. I also believe the residents have the right to vote out or remove from office these board members and certainly hope they do so as quickly as possible. You say "this is more than a health issue." No, Dr. Whelan. It is less than a health issue. Restrictions on rights should not be allowed for annoyances. The practice of enacting public policy for personal preferences is clogging the civic codes throughout the country and we are all diminished because of it. Kimberly Sanders May 6, 2002 So let me be sure I've got it straight. Smokers (those scum!) not only "stink up" entire skyscrapers, they're also such creeps that they won't even allow maintenance men to caulk their offending baseboards. Therefore, they ought to be banned and apartment buildings "restricted" to a higher-type clientele. Dr. Whelan has used a small chunk of anecdotal evidence (her personal observation) to make some sweeping generalizations about an entire class of people. We have obviously exited the realm of science (which rightly mistrusts anecdotes) and entered the realm of bigotry. Imagine making such generalizations about any other group and then, based on those generalizations, demanding their categorical ouster! For those whose idea of "history" is "yesterday afternoon," this Has, of course, been done before. Manhattan buildings were "restricted" to only Christians and whites. And before you say "this is different," please recall the excluded minorities were said to "smell funny" and be vectors of nasty disease. If a black person and a white person drank from the same fountain, it was believed poor whitey would sicken and die, and the "dirty Jews," according to Goebbels' propaganda, were the "cause" of tuberculosis and other contagious disease. (This was proved by Nazi "science.") Finally, I'm tired of the notion abroad in the land that only the hypersensitive anti-smokers (so sensitive they can faint from emanations through sockets and plugs) are entitled to have "rights." Might I modestly propose that prospective owners or renters first examine the ventilation (and, yes, the sockets and plugs) and then perhaps ring the doorbells of all their prospective neighbors and ask them, "Do you smoke? Fry fishcakes? Wax your floors?" And if you don't like the answers, then you're free to buy somewhere else. It would seem that Dr. Whelan did, in fact, solve her problem without evicting, restricting, or afflicting anyone else. Isn't that the way it should be? Sam Stewart May 7, 2002 I am a fifty-one year-old woman with asthma. If I inhale even the smallest amount of tobacco smoke I have an attack. My experience suggests that the attack's length and severity depend on two elements. The first is how much of the smoke I inhale, and the second is what brand. Because each brand contains different chemicals, and different strengths of tar and nicotine, some cause the attacks to be longer and more dangerous. Two years ago my husband and I purchased a condo. Moving in after extensive renovations we found out we had a smoker downstairs. The smoke began first coming into the guest bathroom, and at times would fill our entire home. Yes, we caulked and plugged everything we could. We had an air conditioning company look at the ventilation and nothing was connected to our neighbors. I spoke with the head of our local building and safety who admitted there is no way to stop the smoke from finding an escape from the smokers' home and an entrance to the neighboring units. Please check with your building and safety officials and local fire department if you still question this information. The smoker worked at home but would be out of town for a week sometimes. I knew when she was home without having to see her car or hear her come in simply by the coughing that would begin. I was never wrong in the entire year we tried to survive this problem. For days at a time I would cough, choke, and struggle to breathe until late into the night. At the emergency room the doctor told me "to stay away from tobacco smoke." How do you do that when your home is filled with the smoke against your will? I, too, believe in private property rights. And there are people who, either for health reasons or smell reasons, should have the "right" to a smoke-free home, whether it is an apartment, condo, co-op, or single family. Someone an anti-smoke policy an "intrusive rule." I find the tobacco smoke far more "intrusive" than this rule. I was forced to move from my home so someone could smoke. Since I believe this was ridiculous, I now work with our states department of health services, educating apartment owners and condo associations about the legal right to have 100% smoke-free buildings. Smokers should not panic. There are plenty of apartments, condos, and co-ops that still allow smoking. Why not leave those who choose to ban it in their buildings alone? Jacque Petterson |
