November 21, 2001
Smokers Told to Fetter Their Fumes
The Montgomery County Council yesterday approved one of the most restrictive anti-smoking measures in the nation, setting stiff fines for people who smoke in their homes if it offends their neighbors.
Under the county's new indoor air quality standards, tobacco smoke would be treated in the same manner as other potentially harmful pollutants, such as asbestos, radon, molds or pesticides. If the smoke wafts into a neighbor's home -- whether through a door, a vent or an open window -- that neighbor could complain to the county's Department of Environmental Protection.
Smokers, and in some cases landlords or condominium associations that fail to properly ventilate buildings, would face fines of up to $750 per violation if they failed to take steps to mitigate the problem.
County Executive Douglas M. Duncan (D) promised yesterday to sign the measure into law, which supporters said will protect people from health dangers.
"This does not say that you cannot smoke in your house," said council member Isiah Leggett (D-At Large). "What it does say is that your smoke cannot cross property lines."
But tobacco companies are threatening a legal challenge, the American Civil Liberties Union has expressed concern about the law's impact on property rights and opponents on the council are charging that it unfairly targets the poor.
In cities and counties across the country, lawmakers over the past decade have banned smoking in bars, restaurants, workplaces and even outdoor public areas such as parks and sports arenas.
More recently, the anti-smoking movement has taken on the cause of apartment dwellers. Smoke-free apartment registries have popped up in cities across the country, and some tenants have successfully sued under general nuisance laws that prohibit loud noise and other activities that constitute an unreasonable threat to the quiet enjoyment of property.
But there are few, if any, ordinances that directly address the issue of smoke spreading from one residence to another.
"This codifies what we believe has generally been the law, but we're only just now getting around to enforcing," said John Banzhaf, executive director of Action on Smoking and Health and a public law professor at George Washington University. "This is a major step forward because it will allow people to make a simple complaint to a designated agency rather than having to hire a lawyer and go to court."
That's if the tobacco companies don't go to court to have the law overturned, an option two of the companies said they will study.
"I've never heard of legislation like this anywhere in the country," said Steve Watson, vice president of external affairs for Lorillard Tobacco Co.
"We think it looks like an extreme and unnecessary measure that would be burdensome for property owners," said Lisa Eddington, spokeswoman for R.J. Reynolds Tobacco Co. "We will be evaluating it."
The legislation, which represents the county's first attempt to regulate indoor air quality, was initially designed to give environmental regulators an enforcement tool to deal with complaints involving things like mold, excessive dust, paint and carpet glue odors or gases such as carbon monoxide. Children in day care, the thinking went, should not be forcibly exposed to fumes from an auto body shop next door.
Duncan excepted tobacco smoke from the new regulations, which define indoor pollutants as agents that are "likely to pose a health hazard to humans, plants or animals or unreasonably interfere with the use or enjoyment of residential or non-residential property."
But a council committee chose to include tobacco smoke, a decision that six of the nine council members supported yesterday after a heated debate. The measure was backed by Steven A. Silverman (D-At Large), Blair G. Ewing (D-At Large), Howard A. Denis (R-Potomac-Bethesda), Derick Berlage (D-Silver Spring) and Philip Andrews (D-Rockville) and Leggett. Nancy Dacek (R-Upcounty) and Michael L. Subin (D-At Large) voted no, and Marilyn Praisner (D-Eastern County) voted "present."
Secondhand tobacco smoke is a carcinogen that should be treated like any other air pollutant, a majority of the council decided. But the legislation doesn't specify the level at which secondhand smoke would pose a health hazard and leaves open the possibility that odors alone could trigger a legitimate complaint.
"My sympathies are with the kid next door who has asthma who has to put up with a pollutant crossing the border," said Andrews.
But Subin argued that the legislation was class-biased.
"If you live in a house on a two-acre lot, you are exempt from the moral police, but not if you are unfortunate enough to live in a small town home or an apartment," Subin said. "If this isn't Big Brother putting their nose under your tent, I don't know what is. What else are y'all going to start regulating in my home?"
The bill will take effect 90 days after Duncan signs it. Duncan said he does not believe that adding tobacco to a list of indoor air pollutants will have much impact. "We get little or no complaints about smoking, so I don't think what the council changed is going to have much effect," he said.
The county will focus first on educating violators. Only after a series of warnings will fines be levied, said Duncan's chief regulator, Jim Caldwell. Caldwell said a problem often can be solved by tinkering with a vent, opening a window or plugging a crack in the wall.
Still, Arthur Spitzer, legal director of the American Civil Liberties Union's national capital area branch, said his organization was concerned enough about the legislation to write council members and warn them to tread carefully.
"They shouldn't be able to prevent a person from smoking in their home unless they can show that the amount of smoke is harmful to the health of others," he said. "If someone can just say, 'Yuck, I don't like the smell of cigarettes,' that's no different than someone saying, 'Yuck, I don't like the smell of your cooking because you use too much garlic.' "