No smoking in your own apartment.

Science, technology, and life.
Oct. 2 2009 9:33 AM

Condo Leakage

No smoking in your own apartment.

Cigarette. Click image to expand.
No smoking in your own apartment?

Wasn't it just the other day that New York City proposed to ban smoking outdoors in parks? Why, yes, it was. The city's health commissioner said kids shouldn't "have to be breathing in smoke from the person next to them" or "have to be watching someone smoke."

William Saletan William Saletan

Will Saletan writes about politics, science, technology, and other stuff for Slate. He’s the author of Bearing Right. Follow him on Twitter.

Don't smoke in your office, at a bar, or on public property. And while you're at it, don't smoke in your apartment.

What's that, you say? You have a right to smoke in your apartment?

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Think again. Two years ago, Belmont, Calif., outlawed smoking in apartments and condos with shared floors or ceilings. Then last year, two New York condo owners sued their neighbor for lighting up in her apartment and "causing smoke to enter into the common hallway." Now comes another court fight: According to the Dallas Morning News, a local woman is suing her ex-neighbor and her ex-landlord "for damage she says was caused by cigarette smoke wafting through adjoining walls of her high-end townhome."

No smoking if you share a floor. No smoking if you share a ceiling. No smoking if you share a wall. That pretty much covers it.

I don't know all the legal details of the Dallas case, so I'll leave it to the litigants and the court to work out. But look how it's pushing the envelope of indoor smoking restrictions.

Start with the plaintiff's grounds. In Belmont and New York, the complaints were largely about nonsmokers' health. That's an issue in Dallas, too, but with a twist. According to the Morning News, the plaintiff has

filed a complaint under the Texas Fair Housing Act, alleging that her sensitivity to cigarette smoke qualifies her for protection set aside for people with disabilities. … Dr. Barbara Stark Baxter, a clinical associate professor at UT Southwestern Medical Center, wrote that [the plaintiff] "qualifies as disabled under the Texas Fair Housing Act and the Americans with Disabilities Act." … To qualify for protection, the cigarette smoke would have to impair a major life function—such as breathing.

If this claim succeeds, the ADA may become a weapon in future indoor smoking suits. Then there's the lease. "This lease says I have a right to a habitable place, this lease says I have a right to quiet enjoyment, this lease says I have a right to safe living," says the plaintiff. So even if health effects can't be proved, lease clauses implying peace or habitability can be invoked.

Meanwhile, totally apart from her health, the plaintiff is asserting property damage. She claims her "furniture will need to be reupholstered, artwork restored and closets full of clothing dry cleaned."