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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