Woman seeking ban over neighbor’s secondhand smoke
Detroit Free Press
Ann Zaniewski
05 August 2017
Can cigarette smoke from a neighbor violate the law?
That question has landed in a Detroit court with a lawsuit from an
asthmatic breast cancer survivor who says the smoke from her neighbor's
condo is making her sick.
Phyllis Davis lives in the Echo Valley complex in Farmington Hills.
Four condos in her building share hallways, a basement — and a
ventilation system.
The tenants renting a neighboring unit are chronic smokers, said Alan
Gocha, Davis' attorney. The secondhand smoke flows into Davis' home,
impacting her breathing and causing her to cough.
In addition to her other health problems, Davis says she has
environmental illness and multiple chemical sensitivity disorder, a
condition in which people report having health problems linked to
exposure to certain chemicals.
Davis is asking the court to order the association and management
company to ban smoking in the building and to order the owners of
the unit to prohibit their tenants from smoking in their unit.
"Both under federal law and state law, our client is entitled to a reasonable accommodation of her disabilities," Gocha said.
"At the end of the day, they need to prevent smoking from other units going into her apartment."
The lawsuit, filed Monday in U.S. District Court in Detroit, alleges
violations of the federal Fair Housing Act and the Michigan Persons
with Disabilities Civil Rights Act.
It also accuses the defendants of creating a nuisance that caused
injury and of breaching a covenant — in this case, sections of the
association's bylaws that forbid nuisances; require residents to keep
the building clean and sanitary; and prohibit residents from doing
anything that could increase the price of insurance without permission.
Smoking is a fire hazard, and allowing it could increase insurance
rates, Davis argues.
The lawsuit is against the Echo Valley Condominium Association, Casa
Bella Property Management, Inc. and the owners of the unit that is
emitting the smoke, Moisey and Ella Lamnin.
A representative from Casa Bella didn't return messages seeking comment, nor did Moisey Lamnin.
The battle over secondhand smoke has landed in court before. According
to the Orange County Register, a jury in 2013 awarded a nonsmoking
California couple more than $15,000 in damages against their condo
association, condo management company and neighbors for failing to
ensure their right to the “quiet enjoyment” of their condo.
However, Gocha, who took Davis' case pro bono, said he knows of no
other cases in which a court decided whether a disabled person can ask
for a reasonable accommodation to ban smoking under the Fair Housing
Act.
John Mogk, a professor at Wayne State University's law school, said he
is not aware of a case similar to the Davis case. He also said the lack
of action to protect a disabled individual could conceivably serve as
the basis for a claim.
Gocha said Davis tried to resolve the matter short of a lawsuit. As
early as February 2016, she repeatedly complained to the association
and the management company.
An employee of the management company told Davis she did “not think
there is anything that can be done" to remedy the problem, according to
the complaint.
"The defendants' refusals to make reasonable accommodations to their
rules, policies, practices, and/or services have interfered, and
continue to interfere, with Ms. Davis’ exercise of her rights and Ms.
Davis’ enjoyment of her dwelling," the lawsuit says.
In addition to the smoking ban, she is seeking an unspecified amount of damages and attorneys' fees.
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