By Dr. Elizabeth M. Whelan

In an unprecedented move, a cooperative apartment building on the Upper West Side of Manhattan has voted to bar cigarette smokers from purchasing apartments. New co-owners will be permitted to purchase only if they accept the co-ops terms: no cigarette smoking, even in their own apartment. If new residents violate the no-smoking code, they will be subject to eviction. The new rules will not apply to current apartment owners who purchased their residences prior to the new non-smoking code.

Some see this move as draconian, taking away the "rights" of individuals who choose to smoke in their own homes. Still others have declared the move "unconstitutional" or "illegal," arguing that addiction to cigarette smoke is a disability and as such cannot be discriminated against. Proponents argue that pervasive cigarette smoke is a severe annoyance, if not a health hazard, and that co-op owners have the right to set their own rules in the best interest of all residents. What is the best way to analyze this apparent dilemma? We might first start by assessing whether a problem related to cigarette smoke exists in apartment buildings and, if so, what the nature of that problem is.

I can speak from first-hand experience on this issue. I live on the 47th floor of a new condominium in Manhattan. Shortly after we moved in, we began to detect cigarette smoke in one bedroom and one bathroom. Over time, the smoke became more intense, saturating sheets, towels, and clothing in the rooms. We learned from the building staff that drifting cigarette smoke is a common problem in apartment complexes. The smoke gains access to adjacent apartments through electrical outlets, telephone cable apertures, and door latches, among other routes. We sought protection from the invading smoke by having these apertures completely plugged up, but we missed at least one point of air-exchange with the apartment below us and this past weekend found the same two rooms again drenched with smoke. Further inspection found another point of access (hopefully the last), and it was sealed off. Time will tell if we are really protected from our neighbors' smoke.

The reality is that cigarette smoke has a remarkable ability to travel from one apartment to another. So while the smoker in apartment A may have the "right" to smoke in his or her home, the question is: Does he or she have the right to pollute the space of the neighbor in apartment B with the resulting second-hand smoke? Clearly the answer is no.

It appears that the drifting smoke problem is much more prevalent today than it was ten or more years ago. This is largely because the substantial restrictions on smoking in public venues has made all of us much more sensitive to smoke when we do encounter it.

One might argue that the health risks of second-hand smoke have been greatly exaggerated, so it is a non-problem. But there are two responses appropriate here: First, the long term, chronic impact of environmental tobacco smoke on risk for cancer and heart disease may have been overstated by some anti-smoking advocates, but there is clear and compelling evidence that regular exposure to ETS increases the risk of respiratory and ear ailments in nonsmokers and can be a trigger for asthma attacks. Second, this is more than a health issue. Cigarette smoke stinks and makes everything it comes in contact with stink.

Is there a technological solution for apartment buildings that would restrict the smoke to only the smokers' apartments? Maybe. There are sensitive devices available which can detect the source of invading smoke in a non-smoker's apartment. Presumably if the point of entry can be exactly determined, it can be blocked. Further protection might result from blocking points of exit in the smoker's apartment as well, but in some cases, maybe most, the cigarette smokers may deny access to maintenance workers who seek to block the exiting smoke, arguing that there is no legal imperative for them to cooperate with such efforts.

Thus the technical solutions may not work — because there are so many points of entry for the smoke, because the source cannot be determined, or because the smokers will not agree to any form of remediation which involves work on their apartments. What, then, is the solution for a nonsmoking condo or co-op owner who regularly finds his apartment drenched in cigarette smoke? Apparently, the co-op board of that West Side apartment building could think of only one solution: keep smokers (or at least new smoking residents) out.

Dr. Whelan, President of ACSH, holds doctoral and master's degrees in public health.