by Giang Hoang

In 1995 California passed its first anti-smoking law prohibiting smoking in indoor workplaces and promoting public health by recognizing the danger in second-hand smoke. Several other such bans have followed, including the most recently enacted ban on smoking in cars with minor occupants effective this year. However, these smoking laws have thus far failed to address tobacco smoke where exposure is most invasive: the home. While unlikely that smoking will ever be banned in a private residence, what about the effects of tobacco smoke on the residents of an apartment building?

The adverse effects of tobacco on health

Environmental tobacco smoke (ETS) is a combination of over 4,000 gases and particles, many of which have been identified as toxic air pollutants. ETS can be inhaled either directly (first-hand smoke) or indirectly (second-hand smoke). Health effects of ETS include:

  • developmental effects, including low-birth rate and pre-term delivery;
  • respiratory effects, including asthma and respiratory tract infections;
  • lung cancer; and
  • heart disease.

The California Air Resources Board (CARB) estimates that a smoker’s home contains levels of nicotine roughly 30 times that of a non-smoker’s home.

Existing laws affecting tobacco smoke in multi-units: rights of a tenant

Tenants are currently protected by two existing anti-smoking laws:

  • Labor Code §6404.5; and
  • Government Code §12900-12996, also known as the Fair Employment and Housing Act (FEHA).

Under Labor Code §6404.5, smoking is prohibited in any indoor common areas of an apartment complex if the complex is a place of employment. Employees under this section include:

  • on-site property manager;
  • security guard; or
  • maintenance worker.

FEHA prohibits discrimination based on mental or physical disability or medical condition. Under FEHA, a person with tobacco sensitivity that impedes the ability to breathe has a physical disability. Reasonable accommodation must be made to tenants who have a tobacco sensitivity. These may include:

  • allowing the tenant to move to another unit if tobacco smoke is drifting into their unit;
  • allowing a break of lease without penalty for tobacco smoke; or
  • implementing a no-smoking policy for common areas and units.

While California does not yet force landlords to impose a no-smoking policy in individual apartment units to deter the health and legal effects of drifting tobacco smoke, recent developments in the legislative and judicial systems may indicate a change for the rights of tenants the responsibilities of landlords.

The nuisance of tobacco smoke as a Toxic Air Contaminant

In the 1980s, the CARB established an Air Toxics Program to identify, research, control and reduce toxic air contaminants (TACs) affecting human health. In addition to being a TAC, the United States Surgeon General issued a report concluding ETS had no risk-free level of exposure. [Calif. Health and Safety Codes §§39660, 39661]

What does this mean for landlords and tenants?

Consider the non-smoking tenant with a young child in an apartment building. ETS from a neighbor tenant’s unit wafts into the non-smoking tenant’s unit, causing the non-smoking tenant’s child respiratory distress. The non-smoking tenant sues the landlord for allowing the other tenant to smoke in the apartment complex, claiming the tobacco smoke, a recognized TAC, is a public nuisance.

A nuisance is anything which:

  • is offensive to the senses;
  • is injurious to health; or
  • obstructs the use of property. [Calif. Civil Code §3479]

The case is in a California appeals court and is yet to be decided. However, if the court finds ETS is a nuisance, it will most certainly usher in even more litigation against landlords, apartment owners, and smoking tenants.

Avoiding lawsuits: the rights of the landlord, the non-right of the smoker

Every landlord has an implied duty to ensure housing he rents remains safe and sanitary. Additionally, a landlord has a duty to protect his tenants from foreseeable dangers. If the ETS poses a governmentally recognized danger to tenants, a wise landlord will take steps to avoid claims against him, even if the law governing the rental property does not explicitly require him to. [Hinson v. Delis (1972) 26 CA3d 62; Stoiber v. Honeychuck (1980) 101 CA3d 903; Calif. Code of Civil Procedure §1174.2]

A landlord may do any of the following to alleviate the burden of future ETS litigation:

  • designate all or part of the rental property as smoke-free;
  • refuse to rent to smokers;
  • ask tenants to acknowledge there will be no smoking in a rented unit;
  • remind tenants no smoking is allowed in indoor common areas under law;
  • relocate non-smokers so they are less affected by the ETS of smoking tenants;
  • increase security deposits for smoking tenants; and
  • clearly delineate smoking versus non-smoking areas of the rental property.

As drastic as it may be, a landlord may even choose to evict a tenant for being a nuisance if the ETS is enough of a threat to the wellbeing of other tenants. There is never a guarantee a smoking tenant will not sue a landlord for the right to smoke in his rented unit. However, the right of a tenant to enjoy his rented unit without nuisance or harm is concrete, and the right of a smoking tenant to smoke is decidedly less so: it does not exist.

Courts consistently reject the argument that smokers have the right to smoke. Smoking is not a protected privacy interest under the United States Constitution, nor are smokers a protected group of people covered by equal protection clauses in the US or California constitutions. [See “There is No Constitutional Right to Smoke,” prepared by the Technical Assitance Legal Center (TALC), available at]

Municipal laws affecting ETS and multi-unit housing

In addition to the actions of individual landlords to protect their tenants in multi-unit housing, many municipal governments in California have passed their own smoking ordinances to protect their citizens:

  • In the city of Temecula, any building with more than ten units must designate 25% of the units as non-smoking. Any buildings with two or more units must prohibit smoking in all common areas except were expressly designated, and all smoking areas must be at least 25 feet away from windows, porches, balconies, vents, or children.
  • In county of Sacramento, any owners of multi-unit rental properties are eligible for public recognition if they designate a certain percentage of their units as non-smoking.
  • The city council of Belmont is reviewing a proposal to ban or limit smokers in a multi-unit building.
  • In 2006, the city of Calabasas passed an ordinance prohibiting smoking outdoors within 20 feet of a non-smoker and in all apartment building common areas. The ordinance includes a penalty provision of $250 per offense per day.
  • In unincorporated areas of San Mateo County, smoking is prohibited in all common areas of an apartment building, except were expressly designated as a smoking area. Landlords who post signs prohibiting smoking may be exempt from harm caused by the smoking behavior of their tenants.
  • In the city of Dublin, secondhand smoke has been declared a nuisance by ordinance, and is remediable as a nuisance.

While these are but a handful of cities and counties taking steps towards greater action against the detrimental effects of ETS, it is a growing trend to be noted by the savvy landlord looking ahead and tenants—smoking and non-smoking alike.