Smoke Free Living. A guide for residents and home owners

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Marjorie Bradley
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1 Smoke Free Living A guide for residents and home owners

2 What is secondhand smoke? Secondhand smoke is made up of the smoke released from the burning end of a tobacco product (normally a cigarette) and the smoke exhaled from a smoker s mouth and nose. Why is secondhand smoke dangerous? Cigarette smoke contains more than 4,000 chemical compounds, with at least 250 of these chemicals known to be toxic or carcinogenic to humans (cancer causing). 1 When non smokers breathe in secondhand smoke they inhale the same toxic and carcinogenic chemicals that smokers inhale. Infants, children, pregnant women, elderly people, people with pre-existing health issues and people who are repeatedly exposed to secondhand smoke, even at low levels, are particularly vulnerable to the health effects of secondhand smoke. Secondhand smoke can increase a non smoker s risk of developing or exacerbating a wide range of serious diseases and illnesses, including: Lung cancer - exposure to secondhand smoke over an extended period results in a 20-30% greater risk of developing lung cancer. Chronic Obstructive Pulmonary Disease (COPD) - Exposure to secondhand smoke may increase the risk of developing or exacerbating COPD. COPD results in reduced lung function that is largely irreversible. Other respiratory conditions including coughing, wheezing, bronchitis, and shortness of breath as well as the onset or worsening of asthma. Heart disease - long term exposure to second hand smoke increases the risk of heart disease an estimated 25-30%. Irritation of the eyes and nose, sore throat and headaches. 2 Infants and children are especially vulnerable to the effects of secondhand smoke because their bodies are still growing and developing. Exposure to secondhand smoke can increase their risk of: Sudden Infant Death Syndrome (SIDS) Lower birth weight (when pregnant women are exposed to secondhand smoke) Decreased lung function Severe asthma and other chronic respiratory symptoms Acute lower respiratory tract infections, including croup, bronchitis, bronchiolitis and pneumonia Ear problems Reduced sense of smell 3 There is no safe level of secondhand smoke exposure. US Surgeon General s Report Secondhand smoke has been designated as a known human carcinogen (cancer-causing agent) by the U.S. Environmental Protection Agency, the National Toxicology Program, and the International Agency for Research on Cancer, and an occupational carcinogen by the National Institute for Occupational Safety and Health.. 2,3 US Department of Health and Human Services, 2006, The health consequences of involuntary exposure to tobacco smoke: a report of the Surgeon General. Secondhand smoke and housing The issues around smoking in the home can be complex and can cause strong reactions in people affected by the smoke, as well as the smoker. Health-conscious people, parents with newborns and small children, people with asthma and other serious respiratory problems, pregnant women, cancer survivors and elderly frail people who have opted not to smoke are understandably frustrated and angry that they are forced to inhale dangerous secondhand smoke in their home as a result of their neighbour s smoking. People have the right to a safe and healthy environment in their own home. Smoke drift cannot be contained. There is no safe level of second hand smoke. A neighbour s secondhand smoke makes the environment in neighbouring homes neither safe nor healthy. Smokers respond that they can do as they please within their own home. These situations can cause tension between neighbours. When the neighbours are in high density housing such as apartments, retirement villages and strata properties, the tension can spill over, with management and strata committees getting involved.

3 What s wrong with allowing people to smoke in their own home? People who choose to smoke in their home argue that they should be allowed to do whatever they please in their home. This is generally true, as long as the activity does not harm others. However, nobody would claim that people have an unfettered right to play loud music, for example, or burn rubbish on the balcony of their flat, as these activities are harmful to others. There are two problems with smoking in the home: 1) there is no way to stop smoke drift, and 2) there is no safe level of secondhand smoke. Smoke drift can infiltrate throughout an entire building by way of balconies, patios, doors, windows, air vents, air conditioning systems, hallways, stairwells, elevators, and plumbing and electrical systems. 4 The only way to protect non-smoking residents from secondhand smoke exposure is to implement a smoke free policy for premises. There is no way to contain smoke drift: where air flows, smoke flows. 4 King, B. A., M. J. Travers, K. M. Cummings, M. C. Mahoney, and A. J. Hyland Secondhand Smoke Transfer in Multiunit Housing. Nicotine & Tobacco Research 12(11): What about the rights of a smoker? Restricting legal activities to a certain context is not uncommon. For example, drinking alcohol is legal for an adult-but not while driving a vehicle. Adopting a smoke free policy does not take away the right of the smoker to smoke-it simply requires the smoker to move away from the premises to smoke. There is no law that prohibits a landlord, management or strata company from making a residential building completely smoke free. There is no legal requirement that a landlord, management or strata company provide a smoking area. A smoke free policy does not tell a person she cannot smoke; it simply restricts smoking to places that do not constitute a health hazard to others. People do not have an unrestricted right to smoke. Any right to smoke must be balanced with the rights of others to NOT smoke. Smoking in an area that exposes others to secondhand smoke creates a health hazard to others. This is not a new concept. There are many public and private areas in Western Australia that prohibit smoking. Smokers are not a protected class under antidiscrimination laws, meaning policies excluding smokers or restricting smoking are legal. What are the advantages of smoke free housing? A safe, healthy living environment for everyone Smoke free housing is healthy and safe for all and ensures that all home owners, tenants, visitors, staff and contractors are protected from the dangers of secondhand smoke exposure. Financial benefits There are financial benefits for owners, landlords and residents, including reduced fire risk and cigarette-related burn marks that involve repair and replacement costs; reduced cleaning costs due to smoke residue stains on upholstery and walls; reduced risk of legal action; and potentially higher property re-sale/rental prices. Avoiding potential legal liability Smoke drifting into another resident s home can be harmful and infringes upon the rights of that resident to a safe and healthy home. This can form the basis of legal claims by that person against the smoker and the landlord. 5 The community supports smoke free housing Most West Australians are non smokers, with approximately 85% of adults and 95% of school age children in West Australia choosing to not smoke. 6 The vast majority of Western Australian adults never smoke in their homes (94.5%). 7 5 In NSW resident Lynne Neilson is suing her strata body and landlord over smoke drift from neighbouring balconies causing her health problems. 6,7 Tomlin, S., S. Joyce, and C. Patterson Health and wellbeing of adults in Western Australia 2011, overview and trends. Perth: Department of Health, WA.

4 Achieving smoke free housing If you are interested in achieving smoke free housing, either to address an existing smoke drift issue or to ensure a smoke free environment, the steps you take to achieve a comprehensive smoke free policy depend upon your living space, which generally falls into one of three main categories: Owner/occupier of a unit subject to strata Resident in a multi-unit property owned/managed by a company, such as a retirement village Owner/occupier of a single dwelling home Achieving smoke free housing: Owner/occupier of a unit subject to stratasmoking in common areas If you are the owner and/or occupier of a unit subject to strata title your first step is to look at the strata agreement and by-laws governing your property. Those documents will outline the rules all owners and occupiers agreed to, and tell you how you go about making changes to those rules. It is legal to establish a policy that smoking is not permitted on any of the strata grounds, including inside the units, on balconies and patios. Standard Schedule One by-laws are relevant to smoke drift and spell out the duties of owners and occupiers, including that they (2) (a) use and enjoy the common property in such a manner as not unreasonably to interfere with the use and enjoyment thereof of other proprietors, occupiers or residents, or of their visitors; and (2)(b) not use the lot or permit it to be used in such manner or for such purpose as causes a nuisance to any occupier of another lot (whether a proprietor or not) or the family of such an occupier. Under the standard schedule 1 (2)(a) by-law, smoking in common areas can be prohibited as unreasonably interfering with the use and enjoyment of the property by others. Many strata companies rely upon this by-law to prohibit smoking in common areas. If you are affected by smoke drift into your home, an initial approach to resolving the problem is to politely speak with the person who is smoking. Quite often the person is simply not aware of the effect their smoke is having on those around them. However, you should only speak directly with the smoker if you feel comfortable and safe doing so. Strata ownership: a quick overview The Strata Titles Act 1985 (WA) (STA) governs many issues that arise from strata title property, including the issue of secondhand smoke drift. All owners of lots on the strata plan are members of the strata company, which enforces rules (by-laws), controls and manages the common property. The strata property may be managed by a council of three to seven property owners, which is required to carry out all duties for the benefit of all owners. Large strata companies may employ strata managers to assist the Council in carrying out its duties. The strata manager takes instructions from the Council. Standard by-laws (which apply to everyone unless they are changed by the strata company) are set out in Schedule One and Schedule Two in the Strata Titles Act 1985 (WA). Many strata companies draft their own by-laws or change the standard by-laws. Achieving smoke free housing: Owner/occupier of a unit subject to strata: smoking in individual units Option one (By-law by special resolution under Schedule Two) A strata company can adopt a by-law about anything related to the management, control, use and enjoyment of the lots and the common property. (Section 42 STA). Strata companies can choose to use either Schedule One or Schedule Two to create by-laws. It is much easier for a strata company to adopt a Schedule Two by-law as it may be made by special resolution (Section 42(2)(c) STA). A special resolution is passed when supported by at least 50% of the votes and opposed by no more than 25% of the votes. (Section 3B STA). 8 Under this option the strata company can adopt a Schedule Two by-law that cigarette smoking causes a nuisance to others living on the property. The strata company can use this by-law to ban all smoking on the property, including in individual units, or use the by-law to ban smoking in any individual units where others are affected by cigarette smoke drift. 8 Please refer to the STA to review the technical requirements, including notice of the meeting, quorum, who is entitled to vote, and the validity of written votes for up to 28 days after the meeting.

5 Option two (secondhand smoke constitutes a nuisance) Smoking in an individual unit can be prohibited under Standard Schedule One by-law if the smoke causes a nuisance to others living on the property under section (2)(b). The strata council can make this determination without any changes to the by-laws, based upon how the word nuisance under Schedule One by-laws has been interpreted. A crowing rooster; creating noise and using loud and obscene language ; a large dog; and parking in the wrong place have all been construed as a nuisance under this by-law. Clearly smoke drift causing health problems is a nuisance, given these interpretations. If you are affected by secondhand smoke you can send a written complaint to the strata council and tell them that the smoke is a nuisance for you. Be sure to outline exactly how the smoke affects you and others in your household. Based upon this the strata council may notify the smoker that smoking is not permitted inside the unit as it constitutes a nuisance to others. Strata councils are sometimes reluctant to interpret the by-laws in this manner because the smoker may dispute this and take the strata council to the State Administrative Tribunal (SAT) to decide whether the second hand smoke constitutes a nuisance. This possibility may stop the strata council making this decision. If the strata council refuses to decide that the secondhand smoke drift is a nuisance, you have the option of taking your complaint to the SAT for a determination that the smoke constitutes a nuisance. 13 For assistance please go to Option three (By law without dissent under Schedule One) The strata company may decide that addressing smoke drift must be a Schedule One by-law. In order to change a Schedule One by-law a resolution must be brought before the council, which must then pass the resolution without dissent, meaning that no person voting either in person or by proxy can vote against the resolution. If there is any opposition to the proposal, passing the resolution without dissent can be difficult. Resident in multi-unit property owned/managed by a company, such as a retirement village If you live in a multi-unit housing complex owned and managed by a company, speak to building management about establishing a comprehensive smoke free policy. A smoke free policy ensures that all residents enjoy the right to a safe and healthy home, and staff, visitors, and contractors to the property are not exposed to secondhand smoke. You can also talk to other residents about approaching building management together to request a comprehensive smoke free policy. Many retirement villages are in the process of developing and implementing comprehensive smoke free policies. This rapidly growing trend is in response to an increasing demand for smoke free housing based upon a growing awareness of the dangers of secondhand smoke and the decreasing number of smokers. Smoke free housing results in a safe healthy living environment for everyone; financial benefits; and is supported by the community, including many smokers. There is another compelling reason for multi-unit housing to adopt comprehensive smoke free policies: not doing so exposes both owners and management to legal liability for harm resulting from smoke drift. A resident in New South Wales is suing her strata body and landlord for health problems resulting from housing smoke drift. This lawsuit opens the gate to other such claims. ACOSH is working with a smoke free living working group in Perth to support retirement villages and other multi-unit housing properties through the process of developing and implementing comprehensive smoke free policies. This working group meets quarterly and provides its members with the opportunity to share their own experiences and expertise in addressing smoking in their residential properties. If you are interested in joining this group please contact ACOSH at acosh@acosh.org. Owner/occupier of a single dwelling home If you are an owner/occupier of a single dwelling home you may need to seek legal advice to explore your options. 9 Maskell and Shire of Plantagenet, 25/11/05 10 The Owners of BlueGum Corner and Corry Jonathon Maas, 10/9/ Moller and Crudeli, 1/8/05 12 Kurrajongs and Terence Leslie Hurrey et al 10/10/04 13 Sections of the STA

6 ACOSH is advocating for a change to the law Changing the Strata Titles Act 1985 to specify that tobacco smoke is a nuisance which unreasonably interferes with the use and enjoyment of the property by others provides strong authority for a strata council to enact smoke free areas and comprehensive smoke free properties and provides all owners and residents with clear direction on this issue. ACOSH is working to achieve this important legislative change. If you support such a change to the law you should contact ACOSH on or acosh@acosh.org. It is important that policy makers understand that such a change is supported by many West Australians. Australian Council on Smoking & Health 334 Rokeby Road, Subiaco WA 6008 P E. acosh@acosh.org W. advocacy in action.

7 Smoke-Free Living There is no way to contain smoke drift: where air flows, smoke flows. The right of a person to smoke must be balanced with the right of others to a safe and healthy environment in their own home. A smoke-free policy does not tell a person they cannot smoke; it simply restricts smoking to places where there is no health hazard to others. Policies excluding smokers or restricting smoking are legal. Second-hand smoke is dangerous and there is no safe level of exposure to second-hand smoke. advocacy in action. Smoke-free housing results in a safer, healthier living environment for everyone. It has financial benefits, avoids potential legal liability for health problems resulting from smoke drift, and is supported by the community, including many smokers.

Smoke free medium and high density housing is it achievable?

Smoke free medium and high density housing is it achievable? 71 st State Environmental Health Conference Maurice G Swanson President, ACOSH Chief Executive, Heart Foundation WA Outcomes from this session