startribune.com
February 13, 2008

Residents of a tony, high-rise condominium along the Mississippi River in Minneapolis are among the first to vote to make their building smoke-free, taking Minnesota's battle over smoking bans into private homes.
The rule, at La Rive Condominiums near St. Anthony Main, covers individual units, common areas, garages and private balconies. Current owners who want to smoke will be grandfathered in, but future buyers will have to abide by the rule.
Opponents say the ban is an intrusion into private property rights that could hurt resale prospects at a time when the market is already soft. Supporters counter that, not only do they have a right to breathe clean air, but nonsmoking potential buyers will see going smoke-free as a plus.
"Just as we have seen business [use bans], we're now seeing homeowners and landowners of apartment buildings and condominiums deciding that they don't want their property to have smoking on it either," said Doug Blanke, director of the Tobacco Law Center at the William Mitchell College of Law.
The school provides assistance to people and groups working on laws and policies that have health implications.
Legal challenges aside, such bans are becoming more common in rental housing, as concern spreads about the effects of secondhand smoke. Some say that Minnesota is on the cutting edge of what could become a nationwide trend.
"People spend a lot of money for some of these condos," Blanke said. "And people are finding that, even though your home is your castle, now you're breathing something that's making you or your child sick."
23 percent voted against
Smoke odors where they shouldn't be are what caused Doug Berdie, former president of the homeowners association at La Rive, to ask fellow board members to consider asking condo owners whether they wanted to ban smoking in the 118-unit building.
After a slate of impassioned speeches for and against the ban, 23 percent of the votes were against the rule, only slightly higher than the percentage of Minnesota adults who smoke.
The overall sentiment in the building, Berdie said, was that the ban was a good compromise, because it honors the wishes of nonsmokers but still lets those who want to smoke in their units remain until they sell. Those who fail to comply with the rule, which goes into effect May 1, will be fined or subject to other legal action.
"We wanted to be sure the people who lived there had the feeling that, in their unit, they're protected" from health hazards, Berdie said. "But we all agreed that the fair thing was to let those who currently smoke remain."
One of the most contentious issues was how the restrictions could affect property values. Michael Sharp of ReMax Results in Minneapolis, who has sold several units in the building, said it's unclear how the ban will affect values. La Rive already doesn't allow pets, but he said such bans set an alarming precedent in an extremely competitive marketplace.
"Where does it stop?" he said. "And now you've just narrowed your clientele, especially when you compare it to other buildings that allow large pets, for example, and don't have as many restrictions."
Though smokers in the building won't be forced to stop smoking, they and some nonsmokers said that the restriction is an intrusion on personal rights.
"I could understand if [smoking] was illegal, but it really isn't, and nobody is making an effort to make it illegal," ban opponent Wendy Cammins said.
Cammins, a smoker who has lived in the building since 1987, said that she respects the rights of nonsmokers to breathe clean air, but that she believes there are other ways to ensure that without restricting smokers' rights. No one, she says, has ever complained to her about errant smoke smells, and she doubts that there had been more than a couple buildingwide.
"To me, it's just a Big Brother thing," she said. "No smoking has become like Prohibition was, and nobody seems to be ostracized or outlawed for taking away people's rights for this particular subject. It's the bandwagon effect, and it seems to me that everyone has jumped on it."
The legal community is also on notice, as a growing number of property owners seek to defend their rights to smoke -- or not.
Jack Bouquet, an attorney with Thomsen Nybeck in Edina, has worked with a number of homeowners associations on such issues, and he says the number of inquiries about limiting smoking in private homes is on the rise.
Bouquet is part of a committee of Twin Cities lawyers, building scientists and real estate agents, among others, who are studying secondhand smoke, particularly in condominium buildings. One of the issues they'll examine is whether such rules will withstand tests in the courts.
"You ask a basic question: Do smokers have rights? That will be litigated, but right now, they're not a protected class. You can discriminate against smokers, and it's done every day."
Smoke gets between units
Smoking bans are common in apartment buildings and rental cooperatives. Artspace, a Twin Cities-based organization that owns and manages hundreds of rental units primarily for artists throughout the country, doesn't allow smoking in any of its properties, including the Northern Warehouse Artists Cooperative in St. Paul.
Such concerns about smoking in multifamily buildings, which are becoming more popular with empty-nesters and baby boomers, have been heightened in recent years because of a study conducted by the Center for Energy and the Environment in St. Paul.
Dave Bohac, an expert on indoor air quality with the center, said it's impossible to know how much air gets from one unit to another in buildings. Research by the center has found that sometimes as much as 50 percent of the air in one unit comes from others. "The interesting thing is that, in taller buildings, the higher up you go, the more likely you are to get air from your neighbors," he said.
Much depends on how bypasses for plumbing, air conditioning and electrical are constructed, as the bypasses may leak. "We could measure nicotine in adjoining apartments," he said. "And now that people are starting to understand that it is possible to put these bans in place, I think we will see more of it."
The focus of that study, which was funded in part by ClearWay Minnesota using money from the state's 1998 settlement with tobacco companies, was Lake Shore Drive Condominiums in Richfield, a 178-unit building for people 55 and older. The building was designed to eliminate the kinds of air bypasses that can let odors move from one unit to another. But because of "unanticipated characteristics of the building," said Alice Finley, the building manager, that's not the case. "And there's not a whole lot we can do about it," she said.
Knowing that, homeowners voted against an all-out smoking ban in favor of modified restrictions that say that, if someone smells smoke in their unit, they can file a formal complaint. The offender must fix the problem or face fines.
Since implementing the restrictions, however, it's still unclear whether the modified restrictions will be a long-term solution and whether it will be possible to isolate smoke smells to individual units if someone complains.
"Smoking problems are transient," Finley said. "My offenders die."
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