Frequently Asked Questions About Smoke-Free Policies- Residents
Are smoke-free policies legal?
Smoke-free policies in multi-unit housing are legal and permitted under federal and Utah law. Smokers are not a protected class, so there is no "right to smoke" under U.S. law. Change Lab Solutions in California has created an overview of legal options for tenants. Please note that some of the information in this document is specific to California state law, but many of the strategies can be used in any state.
What are the secondhand smoke amendments (SHSA)?
The amendments were passed in 1997 by the Utah State Legislature. These amendments apply to any tobacco smoke that drifts into any residential unit a person rents, leases, or owns from another residential or commercial unit. These amendments:
|Provide authority for an apartment renter to file a nuisance under §78B-6-1106-(2) even if the renter has signed away his rights to file a nuisance.
|Provide that residents of apartments and condominiums may seek injunctive relief and/or damages if exposed to tobacco smoke §78B-6-1101-(3).
|Any tobacco smoke that drifts into any residential unit a person rents, leases, or owns is a nuisance under the law. §78B-6-1101-(3).
|Give authority for apartment rental agreements to include prohibitions on smoking in the units, on the premises, or both. §57-22-5-1(h).
|Give condominiums associations the authority to restrict smoking tobacco products in units, common areas and yard space. §57-8-16-7(a),(b).
|Exempt rental units, for vacation or available for only 30 days or less at a time from the nuisance tobacco provisions. §78B-6-1101-(4)(a), (5).|
What is the difference between the SHSA and the Utah Indoor Clean Air Act (UICAA)?
The SHSA amendments apply to drifting tobacco smoke in apartments and condominiums. The UICAA applies to no smoking in places of public access. The SHSA cannot be enforced by local or state health departments. Managers are responsible for enforcing their own policies. The UICAA is enforced by local or state health departments.
I have problems breathing and live next to a smoker, is there anything I can do?
Non-smokers with serious breathing disabilities such as asthma or allergies have legal protection under the American with Disabilities Act and the federal Fair Housing Act. If secondhand smoke seriously affects your ability to breathe, consult a doctor to have your condition documented.
What can I do about secondhand smoke drifting into my apartment from another unit?
See Temporary Fixes and What Can I Do if there is already a Problem?
Can air purifiers/fresheners help with secondhand smoke?
The American Society of Heating, Refrigerating & Air Conditioning Engineers (ASHRAE) published a position document on secondhand smoke. The document states "at present, the only means of effectively eliminating health risks associated with indoor exposure is to ban smoking activity." ASHRAE cautions that devices such as air fresheners, cleaners and purifiers should not be relied upon to control health risk associated with secondhand smoke. ASHRAE "encourages elimination of smoking in the indoor environmental as the optimal way to minimize ETS exposure."
I live in a condominium. Can we (or the HOA) adopt a smoke free policy?
Most people assume that when they buy a home, they will be the ones making decisions about their property. If you live in a condo, however, much of the decision-making power lies with the homeowner's association (HOA). The HOA, either through its elected board of directors ("the board") or by a vote of the full membership, has the power to enforce or enact regulations controlling the use of property within the complex.
Owning a unit automatically means you are a member of the HOA, and any member of the HOA can begin the process of making a complex smoke free. Many board members are unaware that condos may legally prohibit smoking in part or the entire complex, so it is often up to the HOA members to educate the board.
My manager says that adopting a smoke free policy is discriminating against smokers, is that right?
No. Smoking restrictions are not discriminatory. As long as the restrictions are not used to target a protected class or minority, a manager is legally free to restrict or prohibit smoking in a building. Also, under Utah state law, smoke-free policies are permitted.
Are their benefits of going smoke free that I can share with my manager/landlord?
There are numerous benefits of having a no smoking policy you can share with your manager or landlord. Making the apartment community smoke free can reduce maintenance costs and reduce the damage that smoke causes (e.g., costs associated with cleaning carpets, walls and repairing property from burns). Additionally, insurance rates may be reduced. Smoking materials (e.g., cigarettes, cigars, lighters, matches, etc.) are the leading cause of home and total fire deaths in the U.S. 1
What can I get my manager or landlord to do to reduce my exposure to secondhand smoke?
The Utah State Health Department, some local health departments and community agencies are addressing issues of secondhand smoke in multiple dwelling units. Suggest to your property manager to contact someone at the state or local level to discuss what options are available in establishing smoke-free policies.
You may also want to review:
Secondhand Smoke in Apartments and Condominiums: A Guide for Residents
Secondhand Smoke in Apartments and Condominiums: A Guide for Managers and Owners
Smoke-Free Apartments in Utah
Smoke-Free Housing in Utah: Utah's Smoke-free Apartment and Condominium Guide
Secondhand Smoke: Guidance for Apartments and Condominiums
1. National Fire Protection Association. The Smoking-Material Fire Problem, John R. Hall, Jr., September 2010.