“It is a decision, in my view, that’s going to have to be made by the legislature. . . . I cannot find that there is an actionable nuisance in this case,” said Judge Albert Northrop, noting that he didn’t want to set a precedent and that Schuman’s health did not appear to have been harmed.
Schuman appealed, but he has put his house on the market. “I don’t want to move,” he said, “but my fiancee and I want to have children, and we won’t subject them to secondhand smoke.” He has already spent more than $70,000 on the case, he said. “I’m pursuing this because we’ve come so far and because this will affect a great many people.
“Perhaps Judge Northrop was saying that he doesn’t want to get out ahead of any pending legislation,” Schuman added.
Maryland Del. Benjamin F. Kramer, who represents east-central Montgomery County, plans to introduce a bill this session to modify the “nuisance statute” so that it clearly includes secondhand smoke.
Noting that “Utah’s done something similar,” he said that Marylanders would “be welcome to smoke in their own home unless there’s a legitimate complaint. This would put the burden of mitigating such a complaint on the creator of the nuisance, not on those adversely affected.”
Among Kramer’s constituents is Harriet Hershman of Silver Spring, who said she asked a neighbor to smoke outdoors because secondhand smoke had seeped into her unit. It caused eye irritation and a cough and forced her to spend nights with friends and relatives, and even in her own car, to avoid the fumes. “He said he has a right to smoke in his own home,” she said of her neighbor’s response. The Wintergate at Longmead Condo Association issued a cease-and-desist order, which the smoker appears to be obeying, according to Hershman’s lawyer, J.P. Szymkowicz.
“I might be able to move,” she said before hearing of the smoker’s decision, “but where can I go that I won’t end up in the same situation?”
Hershman approached Kramer about nuisance legislation because, she said, “Maybe I can help make a change.”
Legal experts say the local courts have ruled on both sides of the issue.
Some state courts have held that substantial amounts of smoke flowing between units constitute a nuisance. But others have determined that the cigarette smoke is like an odor intrusion — a condition of living in a community that residents have to put up with, according to the Public Health Law Center at Minnesota’s William Mitchell College of Law.
Although four-fifths of Americans don’t smoke, circulating a petition or even openly complaining about secondhand condo smoke can incur others’ wrath. At the Promenade Towers and elsewhere, several smokers’ neighbors were worried about about a backlash if their comments were made public.
When Promenade Towers’ owners took the smoking ban up for a vote last July, the measure did not pass.
“Instead of trying to solve their problem with the individual neighbor, they tried to get the whole building involved,” resident Keith Feldman said of the petitioners. A smoker, he voted against the ban. “If people are thinking of moving into a building, they should ask if smoking is allowed. If you’re allergic, maybe you shouldn’t move in.”
The Promenade Towers residents who pushed for a smoking ban then asked the board to enact a house rule instead, but the board unanimously refused. “The bylaws give authority to make rules on use on parking or use of the common areas, but restrictions on uses of the unit are more specific” and therefore legally harder to make “a mere rule” on, said attorney Jason Fisher, speaking for the co-op .
Although smoking ban efforts failed at the Promenade, Marquez-Dugan she said she believes a more health-conscious public will eventually prevail. “Change won't happen anytime soon, but when it comes to health, eventually it does get there."
Ellen Ryan is a freelance writer.
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