Are Non-Smoking Policies Legal?

á       There is no right to smoke according to the U.S Constitution and no court has ever recognized smoking as a fundamental right nor has any court ever found smokers to be a protected class.1

 

á       The Òright to privacyÓ protected by the U.S. Constitution includes only marriage, contraception, family relationships, and the rearing and educating of children.2

 

á       There are certain groups of people — such as groups based on race, national origin and gender — that receive greater protection against discriminatory acts under the U.S. Constitution than do other groups of people.3  Smokers have never been identified as one of these protected groups.4.

 

á       Smoking is a behavior, not a condition of birth.  Smoking is not an "unchallengeable characteristic" because people are not born as smokers — smoking is a behavior that people can overcome and stop.5

 

á       ÒNo SmokingÓ rules for apartment units or condominiums are in the same legal category as Òno petsÓ or Òno loud noiseÓ rules.  They are legal policies that reduce property damage and protect tenantsÕ right of quiet enjoyment.

 

á       ColoradoÕs Clean Indoor Air Act section 25-14-206 (1) allows landlords to make any part of their property non-smoking.  Section 25-14-204 (p) & (u) prohibits smoking in all indoor common areas.

 

25-14-206. Optional prohibitions. (1) The owner or manager of any place not specifically listed in section 25-14-204, including a place otherwise exempted under section 25-14-205, may post signs prohibiting smoking or providing smoking and nonsmoking areas. Such posting shall have the effect of including such place, or the designated nonsmoking portion thereof, in the places where smoking is prohibited or restricted pursuant to this part 2.

 

 

Non-Smoking Policies Can Be Implemented

¥  Federal anti-discrimination laws do not protect people who smoke.

 

¥  It is legal to advertise a unit (residential or commercial) as smoke-free.

 

¥  It is legal to ask tenants to acknowledge in the lease or month-to-month rental agreement that they do not smoke and/or will not smoke in the unit they are renting.

 

* ¥ Hundreds of multiunit residential buildings in Colorado are now smoke-free and the number is increasing monthly.  Many of these communities also prohibit smoking on the entire grounds. Visit http://www.mysmokefreehousing.com for the most up-to-date list.

 

Important Facts: Nearly 83% of Colorado adults do not smoke, more than 85% of all smokers want to quit, and surveys of residents in various communities indicate a majority support smoke-free policies.

 

 

1. All citations compiled from "There Is No Constitutional Right to Smoke" an informational memo prepared by The Technical Assistance Legal Center (TALC), a project of the Public Health Institute. Full memo available at: talc@phi.org ¥ (510) 444-8252.

2. Griswold v. Connecticut, 381 U.S. 479, 484 (1964); Meyers v. Nebraska, 262 U.S. 390 (1923); and Moore v. East Cleveland, 431 U.S. 494 (1977).

3. Brown v. Board of Education, 347 U.S. 483 (1954); Sugarman v. Dougall, 413 634 (1973) ; Craig v. Boran, 429 U.S. 190 (1976).

4. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985); San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1 (1973).

5. Frontiero v. Richardson, 411 U.S. 677, 686 (1973).

                                                                                                   

This fact sheet is based on the consensus of numerous attorneys throughout the country

and the Colorado Clean Indoor Air  Act.  It is not intended as legal advice.

                                                                                                       

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