Condo owners lose right to smoke in own home

[Dankdude]

Rocky Mountain News: Local

GOLDEN - Colorado smokers grousing about no longer being able to light up in bars should consider the plight of a couple banned by a judge from smoking in their own home.
Colleen and Rodger Sauve earlier this month lost a court battle to overturn a Heritage Hills #1 Condominium Homeowners Association rule that targeted their cigarette use because the smell of burning tobacco drifted into other condos in the four-unit complex where Colleen has lived, and smoked, for more than five years.

"I don't understand how you get to change the rules in the middle of the game," Colleen Sauve said Thursday. "There has to be a limit to a homeowners association's authority, especially when this (smoking) is a lawful act."

The legal battle began after the condo association responded to a complaint from the Sauve's next- door neighbor, Penelope Boyd, about the smoke and odor she said was coming from the Sauves' condo.

Boyd's daughter, Christine Shedron, said the problem is not just the smell, but her mother's sensitivity to it.

"It makes her nauseated; it makes her sick," Shedron said. "The thing about this is that this is not just my mom against these people. There have been complaints from every person that has lived in that complex with the exception of one or two."

After each side spent thousands of dollars unsuccessfully trying to mitigate the problem with insulation, foam, filters and air purifiers and a mediation effort failed, the association decided to pass an amendment prohibiting smoking under a covenant that previously dealt with nuisances that could be considered "an annoyance to residents."

"If you are going to cite smoke as a nuisance, where does that lead us? Half the time, downtown Golden smells like the (Coors) brewery," Colleen Sauve said. "There are odors everywhere that disturb people."

District Judge Lily Oeffler sided with the association in her Nov. 7 ruling, finding that "shared airspace in the soffit area permits smoke or smoke smell to migrate."

"The issue of whether there was actual smoke or simply a smoke smell is irrelevant. Testimony substantiated an almost constant smell of cigarette smoke. . . . Clearly, the smoke smell constitutes a nuisance under these circumstances," Oeffler wrote.

Legal analyst Scott Robinson said Colorado law upholds the power of homeowners associations to "enact rules that govern the conduct of tenants and the appearance and upkeep of the premises."

"The court has to decide what is legitimately a nuisance," Robinson said. "It really is a fine line. Smoking is a voluntary activity which does create a recognizable odor."

But Bonnie Ferguson, a spokeswoman for the Coalition for Equal Rights, which was formed to help mom-and-pop bars fight Colorado's new ban on smoking in bars, restaurants and other public places, said Oeffler's ruling goes too far.

"It's not only that they (anti-smoking groups) are trying to make it a health issue, now they are trying to make it a nuisance. The biggest part of it is that now they are going after people's property rights," Ferguson said.

 

[medicineman]

Even though I'm an ex-smoker and hate smoking as much as the next guy, I'd say this is going too far. Maybe they'll have to have smoking and non-smoking condos to prevent this from happening again. " The rights of the people in their homes and propertys shall not be abridged", a quote from somewhere!

 

[mogie]

When the rights of someone involves something that causes cancer and infringes on my right to breath clean air it isn't going too far. That is why I was so desperately trying to find out info on vaporizers. If they are really better for us then smoking weed why don't those with experience with them tell us their experiences pros and cons so we know what to look for and what to look out for. Man those things are expensive and do they really work?

 

[Dankdude]

mogie, when it comes to someone telling you what you can and can not do in your own home (which you paid for) is going too far.. Please take off your militant non-smoker hat for a second and put on the hat that says "Don't Tread on Me."

 

[mogie]

We aren't talking about something as inert as buring incense. We are talking about an activity that is a known cancer causing agent.

If you want to ingest this product fine. But if this in anyway impacts anyother human in even the slighest way you are subjecting us to cancer causing materials. That would be unless the people in question are using a vaporizer to smoke their cigarrettes.

 

[Dankdude]

So you would agree with taking away people's rights then. I look at it this way, If I buy and pay for a house, no one has the right to tell me what I can or can not do inside of my house.

It would be like me coming into your house and telling you what you could or could not eat. It's the same principle.
I am sure you would not like it one bit.

Also (going for the throat here) The Science that they used to determine whether or not Second Hand Smoke kills or not is FLAWED.
Since there is no control group in any of those studies then there is nothing to base their theory on.
Any Credible Scientific Study has a control group.


Like I said before:

Please take off your militant non-smoker hat for a second and put on the hat that says "Don't Tread on Me."

Personally The Government nor any organization has the right to tell me or you what we can do in our own houses.

 

[Dankdude]

When you buy a home, you have a reasonable expectation of privacy.

 

[DankyDank]

I don't smoke cigarettes- but as far as I know, every study that has purported to show a risk from second-hand smoke has been discredited. One of the best and most concise things I have seen on this subject was the Penn and Teller episode of "Bullshit!" that dealt with second-hand smoke.

I think the anti-smoking movement is largely driven by big business (who don't want to pay health-care costs for smokers) and anti-smoking beauracracies whose anti-smoking campaigns depend on government funding.

Second hand patchouli is responsible for way more discomfort than cigarette smoke.

 

[ViRedd]

When one buys a condo, one agrees to abide by the rules of the Home Owner's Association. I agree that the second-hand smoke issue is just that ... the totalitarians among us exercising their will. However ... the libertarian view would be; a person has the right to smoke, injest, drink or inject anything they wish ... AS LONG AS THEY DON'T INFRINGE UPON THE RIGHTS OF ANOTHER IN THE PROCESS. These smokers alluded to here have clearly violated the rights of their neighbors to peaceful enjoyment of their property. They have violated the rules that they have agreed to obey. They couldn't have closed escrow on the condo without approving the HOA guidelines and bylaws.

Mogie sez ...

"That is why I was so desperately trying to find out info on vaporizers. If they are really better for us then smoking weed why don't those with experience with them tell us their experiences pros and cons so we know what to look for and what to look out for. Man those things are expensive and do they really work?"

Yes, vaporizors work great ... but some work better than others. I've used several and the best one to date is the Volcano. Expensive? Yes ... but you get what you pay for. Here's a guy on Ebay that has a good deal. He throws in everything except the kitchen sink:

eBay: INSANE VOLCANO VAPORIZER PACKAGE! YOU WONT BELIEVE IT! (item 200047582070 end time Nov-23-06 22:17:39 PST)

 

[medicineman]

These smokers alluded to here have clearly violated the rights of their neighbors to peaceful enjoyment of their property. They have violated the rules that they have agreed to obey. They couldn't have closed escrow on the condo without approving the HOA guidelines and bylaws! [/COLOR]I think in this case there was no no-smoking rule in place before they bought the place and they spent thousands battling it out in court. This is a hard one to take sides with. I am a reformed smoker and absolutely hate smoking, but I also believe a mans home is his castle and shouldn't be fucked with. Seems to me they could figure out a way to seal up that one condo so it didn't migrate to the others. I can smell a smoker from 20 ft. and my smeller doesn't work that well. It's a repulsive smell to me, and now I realize how other non-smokers felt about me when I smoked and thought no-one had the right to tell me to stop!

 

[ViRedd]

Med ...

I agree that a man's home is his castle. In this case, the man's home was seperated from another man's home by an ajoining wall. So, in that case, the smoker was violating the rights of his neighbor. Now, if they were single family residences ... that's a different story.

Vi

 

[Wavels]

This is just another fine example of the insidious encroachment of the ever expanding Nanny State.......
Repulsive!

 

[ViRedd]

Yes it is, Wavels. If you remember, the tobacco Nazis started with airliners and only wanted 50% of the plane to be non-smoking. Then it was the smoking areas in resturants. Now, its bars, condos and public places.

Believe it or not, the City of Calabasas in California has made smoking anywhere within the city limits unlawful, except in one's own home.

Vi

 

[ViRedd]

Thursday, March 16, 2006

Calabasas Smoking Ban Goes Into Effect Tomorrow


A smoking ban in virtually all outdoor public places in Calabasas, including streets, sidewalks, and parking lots (but of course, not at the city's shopping malls) goes into effect tomorrow.

According to an article in the Los Angeles Daily News, the incoming Mayor of Calabasas defended the ordinance as follows: "We just don't want anyone blowing smoke in someone's face. Unfortunately, what smokers do is harmful to everybody else."

According to the article, a spokesperson for the American Cancer Society in Sacramento praised the ordinance, stating: "We salute Calabasas for raising the bar. Smoke regulations can play a very important role in reducing public exposure to harmful secondhand smoke."

Also according to an article, a security guard at the Calabasas Commons confirmed that he would not enforce the smoking ban.

The Rest of the Story

The comments of the public officials in Calabasas appear to me to confirm that the rationale behind the smoking ban leaves a lot to be desired.

If the city doesn't want people blowing smoke in other people's faces, then it should pass a law outlawing blowing smoke in other people's faces. I don't think any smokers would have a problem with such a law.

And if it is true that what smokers do is harmful to everybody else, then the city should just ban smoking altogether. After all, if it smoking is a serious hazard and it harms other people, then how can the city rationalize allowing it?

It's quite clear to me that what city officials are shying away from is confronting the lack of scientific evidence that outdoor smoke in places like streets, sidewalks, and parking lots is a serious health hazard that causes any significant damage to nonsmokers in Calabasas.

The city officials do everything except talk about the hazards of smoking in outdoor environments where nonsmokers can easily avoid exposure to the smoke.

And that's no surprise. Because the ordinance is extremely hypocritical. It bans smoking in places where very few nonsmokers have any significant exposure to smoke and where they can easily avoid the exposure, but it does not prohibit smoking (in outdoor smoking areas) at the city's crowded shopping malls, where exposure cannot easily be avoided.

Presumably, what smokers do is harmful to everybody else, unless they are spending money at the city's shopping malls and helping provide needed revenue and economic prosperity to the city. Then it's OK to overlook the harm that smokers are doing to "everybody else."

If this comes down to a debate over the scientific evidence of public health hazards and the seriousness of those hazards, the Calabasas City Council is going to lose the debate hands down. So they're avoiding it like the plague. They're offering all kinds of other justifications under the sun: this is to promote family values in Calabasas...this is to set a good example for our children...this is to protect children from seeing smokers...this is to prevent litter...this is to protect the city's creeks and streams, etc.

What it's really about, however, is disdain for smokers and an attempt to punish them.

Perhaps more disturbing to me that the city officials' defense of the ordinance is the praise for this ridiculous law that is coming from anti-smoking groups. The American Cancer Society praises the law for "raising the bar." As if this is some sort of game where the more draconian your anti-smoking proposals are, the better. The ACS spokesperson correctly notes that smoking bans reduce exposure to harmful secondhand smoke, but he fails to address the issue of what evidence there is that exposure to secondhand smoke in streets, sidewalks, and parking lots is a significant public health problem.

And is it not slightly ironic that the American Cancer Society, which has refused to link secondhand smoke with breast cancer because it doesn't want to harm its "scientific credibility," is supporting a law that threatens to erode the scientific credibility of the entire anti-smoking movement because it is so obvious to the public that smoking in wide-open outdoors places is not associated with any substantial public health problems?

I don't usually condone violating or overlooking the law, but in this case, I applaud the security guard at Calabasas Commons who apparently decided that protecting the security of shoppers and stores (which is his rightful job) is more important than tracking down people smoking outside and delivering them to city prosecutors for possible criminal punishment.

If I lived in Calabasas, I would certainly look the other way if I saw smokers lighting up in streets, sidewalks, and parking lots around me. And you know what? According to the Calabasas law, I would be guilty of a criminal offense - a misdemeanor - every time that I looked the other way. Because it is a crime under the law to conceal a violation of the ordinance.
In the ultimate of ironies, my reading of the law suggests that a smoker could actually sue a nonsmoker for not reporting him or her to authorities. Because aiding, abetting, or concealing a criminal offense under the law (i.e., smoking in public) is itself a criminal offense and under the law, any citizen can bring a lawsuit against any other citizen for violating the law.

Can you imagine that? Smokers could have a great time in Calabasas. They could go around lighting up around nonsmokers, and then if those nonsmokers do not report them, they could sue them for violating the law.

The situation in Calabasas is really a mess. In my opinion, it makes a mockery of the entire smoke-free movement, which I view as a serious, evidence-based, public health effort to protect workers from a bona fide occupational hazard.

It's just a shame that anti-smoking groups are contributing to and supporting this mess. And I don't think they're doing the tobacco

 

[Dankdude]

Smoking is not a right.

Then explain to me how it is not a right.
It is legal as long as you do it after the age of 18 (19 in some states)
Kind of like drinking, as long as you do not get behind the wheel drinking or do not make a nuisance of yourself and are above the age of 21 (18 in Wyoming) then it is perfectly legal and is your right to drink or not to drink.

What you do not see here is that it is a privacy issue. What a man or woman does in his or her house is their own business.
You can not legislate morality no matter how you try.
I would also say that with your logic then you have no right to use marijuana.

The way I see it, the government has no business forcing restaurant owners to ban smoking in their business. It should be up to the owner of the business.
Texas has yet to do it, although it is being done on a county by county basis. You would be surprised on how many business owners have rebelled against such draconian measures. Some have made separate smoking sections in their restaurants with separate ventilation.
Banning smoking would serve nothing but to empower Organized Crime.
IF you want to debate an issue, please have the common decency to know what you are talking about instead of going from emotion.
Personally I would like to see some of these cases traken to the Supreme Court.

 

[Dankdude]

No Vi or Wavels, it has nothing to do with the Nanny State as you put it, it has to do with people who think that they are better than everyone else trying to control the masses.

 

[mogie]

There are rights and there are priviliges. You have a right to bear arms. You have the privilige to drive a car. There is a difference do you get it?

 

[Dankdude]

So are you saying that you are morally superior to a smoker?

What you don't understand is that smoking is an addiction, and it has been medically proven that it is harder to quit than heroin. Like I said please know what you are talking about before sticking your foot in your mouth.

BTW, I did go 6 of the 8 years medical school required to become a Doctor. If you must know I went to BYU. Yes smoking is a privilege, but unlike driving the worse a smoker should suffer for their habit is a ticket for littering when they toss their butts, and maybe go to jail for tossing the butt in a forest if it starts a fire.
I also said earlier in this thread, when you buy a home you have a reasonable expectation to privacy. If someone came into the house I bought and paid for and told me that I can't smoke in my own house would expect an ass kicking at the very least.

 

[Resinman]

the problem is not Tobacco ,,,, the majority of smokers in the USA are not smoking tobacco,,,,

They are smoking,,,, and addicted to a cocktail of 500 different compounds (chemicals)

Now organic tobbaco,,,i have no problem with,,,,,, actually once every few months we smoke a little ,,,very spiritual

but when you join into a group association that has these covenants on living you sign off your true freedoms,,,so i do not feel anything about it,,,its a matter of choice,,,they chose to sign on the line,,,move somewhere else with out restrictions

resinman

 

[mogie]

I am not saying that anyone is superior or inferior to anyone else. I was asking if you know the difference between a right and a privilige? Sounds like you don't.