Our hearing continues, as does frequently asked questions.
So here are some answers to five (5) questions in terms of background principles and conventional wisdom as I learned them.
How does grandfathering apply to smokers?
It doesn’t! It just doesn’t!
Why doesn’t it?
Grandfathering remains a concept under contract and property use law, which loses its protection role when health and safety issues come into play, especially when new knowledge replaces old understandings. Grandfathering cannot be used to strip the protection of health and safety issues: no such thing as an inherent right to impair health and safety of a person or the public.
Throughout the smoke-free housing ideation, the grandfathering concept has been misunderstood and misused, especially as a license to smoke – and smoke more. Everything flows from our bastardized notions of grandfathering coming out of the mouths of laypeople and non-lawyers. Correcting those understandings requires checking out what is fact and what is fiction.
The smoke-free housing ideation arrives from there is no safe level of secondhand smoke. The “no safe level” standard emerged from air testing and from cotinine testing – the test measuring the impact of secondhand smoke on non-smokers through their urine, blood, and saliva. One document readers might find helpful comes from ASHRAE – the American Society of Heating, Refrigeration and Air-Conditioning Engineers, Inc. The document title reads “ASHRAE Position Document on Environmental Tobacco Smoke” (2008).
The Canadian Human Rights Commission provides “Medical Perspective on Environmental Sensitivities” and “Accommodation for Environmental Sensitivities: Legal Perspective.”
Today, the Quebec Tobacco Trials provide no shortage of documents, from tobacco corporations themselves, testifying there is no safe level of secondhand smoke. Administrators, aka responsible people, cannot reasonable engage in debate against the hazards of secondhand smoke, or whether sneezing, coughing, wheezing, itching, eyes, nose, and throat soreness amounts to a sufficient enough “ill” response.
When people ask about air quality testing, and what air quality testing to do, this testing has been done, and done from multiple ways. This is why we have the standard of “no safe level.” Save your money.
Move on to implementation, enforcement, and sign-posts to see that the by-law is working. Show that the responsible people have done all they could reasonable do, which includes applying for an injunction against the smoking, if necessary.
Where the notion of grandfathering exists, so too do sections on health and safety, and nuisance law/quiet enjoyment. All of these speak to physical harm and safety issues. The ‘harm’ issue provides the exclusion to grandfathering. All the Acts governing housing have sections on health and safety as well as Nuisance/quiet enjoyment. These acts charge responsible people (councils, boards, managers) to enforce these bylaws.
2. Absence of no-smoking bylaws
What about not having a no-smoking bylaw?
A no-smoking bylaw is unnecessary. All bylaws necessary are already in place.
Therefore, secondhand smoke contravenes existing bylaws.
Therefore, complaints about secondhand smoke are not private matters (disputes or conflicts- whatever you want to call it) between neighboring residents.
Therefore, enforce the bylaw even if the secondhand smoke contravention affects one owner/tenant, or a complaint comes from one owner/tenant.
Therefore, citing no complaints may not translate into no problems. Responsible people are held accountable to the standard, “Know, or ought to have known.” The evidentiary information indicating the hazards of secondhand smoke, and the “no safe level” standard determines what standard and how responsible people are held accountable. Ignorance of the law is no excuse.
Therefore, the belief that the responsible person does not have control to enforce smoke-free housing, and that smoke-free housing infringes on the rights of smokers amounts to no more than an ignorant rant – and not a defense. It amounts to dollars going up in smoke.
Warning letters remain necessary, but largely insufficient without a list of escalating consequences. Escalating consequences includes asking for outside intervention. In Surrey, BC, that might be the City of Surrey enforcement officers, before lawyers and the legal system.
Education remains key to enforcement. Asking someone like the City of Surrey to do a presentation for your target audience, brings in authority to speak to the situation, and takes the heat off of managers, etc. Outside authority works especially well where managers do not have the expert knowledge at the top of their mind, and where they are uncomfortable with the topic, and uncomfortable with public speaking on such a controversial topic.
As part of the education process, the responsible people might obtain a signed acknowledgement that certain documents have been reviewed and understood. This does not necessarily refer to a tenancy agreement or lease agreement, but rather refers to documents pertaining to the knowledge and bylaws around secondhand smoke and smoke-free housing.
The above and below discussion answers the question: How do you avoid lawsuits?
Lawsuits happen with ineffective and inefficient responses, which leave a paper trail that turn into evidence, a List of Documents, a Book of Documents, Exhibits, and Witnesses.
4. Marijuana/drugs secondhand smoke
Following the Ghostbusters theme, Who yah gonna call when faced with a secondhand smoke complaint – of marijuana/drugs?
Yes, there is someone to call other than the RCMP, who don’t respond to this level of non-emergency call, or not very often, and cannot in a timely manner. I’ve not heard good news on effectiveness. And if owners/managers advise to call the RCMP, they are poorly informed, or deflecting the responsibility.
Canadian K9 – to the rescue. Canadian K9 exists as the private answer for canine narcotics detection to the public RCMP force. CanadianK9 contracts out to non-profits, BC Housing direct managed properties, property managers, landlords, managers, and owners of every sort.
Canadian K9 conducts regular detection sweeps on a random basis, including at high risk times. Their reports provide you solid evidence and authority to act on bylaw contraventions, to enforce bylaws.
BC Housing paid Canadian K9 $340,971.41 for their narcotic detection services in 2011, as revealed through Freedom of Information.
**ADDITION: Nov 28 2012
With regards to the consumption of marijuana for medical purposes, Health Canada requires users of medical marijuana to produce the certificate, with conditions, when asked for to ensure that a certificate hasn't lapsed. Health Canada advises users to comply with all respective municipal and provincial legislation and bylaws relating to combustible materials and secondhand smoke.
Health Canada also advises individuals authorized to possess and/or produce marijuana for medical purposes to limit consumption to a private location to respect those around them who may be adversely affected by the involuntary consumption of secondhand smoke.
In other words, the Health Canada Marijuana Medical Access Program does not hand out a license to smoke freely to the exclusion of affecting others. Secondhand smoke seeping into the hallways and into other apartments is considered to be a hazard and falls under disturbance to quiet enjoyment.
Health Canada - Marijuana Medical Access Program (MMAP)
email@example.com ~ 1-866-337-7705
5. Government enforcement in subsidized housing
Can governments enforce no smoking bans in subsidized housing?
Absolutely…it’s been done! Albeit, some with grandfathering so that secondhand smoke remains a problem if response to complaints of secondhand smoke seeping out from a so-called grandfathered unit remain ignored.
However, in BC, I’m told the government remains reticent about this bold unconventional step. After all, laws and bylaws do exist covering the matter of secondhand smoke. Application, implementation, enforcement, and reality checks for how well bylaws and policy work, well that is another kettle of fish. But, policy and bylaws are just pieces of paper, and sometimes it takes years, a change of personnel, to use the authority of policy and bylaws properly.
Under Freedom of Information I learned that many many people want the government to provide straight talk and legislate smoke-free housing, to cut the Gordian Knot so to speak.
Being intimate with BC Housing these past few years with regular contact and updates, providing significant supporting medical documentation, and through my efforts to obtain the private market rent subsidy, I understand that secondhand smoke is not much of an issue for BC Housing.
As at November 24, 2011, apparently 84% of applicants to the Housing Registry answered ‘no’ to whether they smoked in their home, which is different from whether they smoked. Only 0.4% indicated a need for a non-smoking building, and translates into approximately a mere 4,000 people. So if a problem exists, it exists at a LOW threshold.
Although, my obtaining a private market rent subsidy speaks to the fact that there existed no subsidized housing to move me and my so-called ‘gang’ to. I waited 4-1/2 years. As of July 1, 2012, I am part of an elite group of 229 people granted private market rent supplement, with 30 on the private market rent supplement wait list. The monthly budget tallies in at $129,279, or $564 on average, for $1.5M per year. More Freedom of Information trivia.
I know of three people who were granted the private market supplement because of secondhand smoke in 2012. The Million Dollar Question remains whether we were made ill from secondhand smoke, but not ill enough to stop us from reporting every last contravention we experienced or witnessed.
The facts as I know them, despite the “Smoke-free Property” listing on the BC Housing Registry, no independent list was provided by BC Housing to me, or anyone else who asked for it. I manually went through the Registry in the spring of 2012, and compiled a list of 55 complexes housing seniors and families in all of BC, out of what appears to be 1,547 complexes. Unfortunately, a smoke-free property does not necessarily translate into a complex being smoke-free, what with grandfathering bantered around.
I understand BC Housing’s policy to be of the grandfathering kind, but that they do respond to reports of secondhand smoke seeping into and interfering with a tenants quiet enjoyment, and causing health matters. They have Canadian K9 on their payroll.
And if it’s not reported, it’s not a problem.
That’s all folks!