By Lee Dryden
BridgeTower Media Newswires
DETROIT-A U.S. Sixth Circuit Court of Appeals panel has affirmed a decision against a plaintiff who claimed her asthma was aggravated by the frequent smell of smoke from her neighbor's condominium.
In Davis v. Echo Valley Condominium Association, plaintiff Phyllis Davis alleged that the defendants, by refusing to ban smoking, discriminated against her under the Fair Housing Amendments Act and violated various condo bylaws. The U.S. District Court for the Eastern District of Michigan at Detroit granted summary judgment to the defendants, ruling that the requested smoking ban was not a "reasonable accommodation."
The federal appeals panel affirmed in an opinion by Judge Eric E. Murphy, joined by Senior Judge Deborah L. Cook and Judge John B. Nalbandian. The appellate court pointed out that the association's bylaws do not prohibit smoking.
Plaintiff's counsel Alan J. Gocha of Brooks Kushman PC in Southfield said his client is appealing further. She filed a petition for en banc rehearing and, if that is denied, she is strongly considering filing a petition for a writ of certiorari to the U.S. Supreme Court.
The stakes are high, according to Gocha.
"This is a landmark case that pertains to issues of critical importance for a significant number of people, including over 70 million Americans living in community associations and 60 million Americans living with one or more disabilities," Gocha said. "For decades to come, the opinion will likely be cited in nearly all lawsuits involving smoke-related nuisances and/or the interpretation and construction of condominium bylaws."
The case
Davis, a cancer survivor with "a history of asthma and multiple chemical sensitivity disorder," seeks to change the association's smoking policy through this suit, according to the Sixth Circuit opinion.
In 2004, she bought a condo on the second floor of a four-unit building in the Farmington Hills complex. In 2016, she complained to a management company employee about neighbors' constant smoking that affected her "breathing, causing constant coughing, and near asthma attacks." The association board directed that a letter be sent requesting that the smokers smoke on their balcony or further insulate their doors.
Another complaint led to the installation of a fresh-air system on Davis' ductwork. Davis reported that the system helped, but did not fully eliminate the odor. She was not appeased by the condo tenants' offer to purchase an air purifier/ionizer.
In July 2017, Davis sued the association, management company, condo owners and the tenant who engaged in the smoking. The condo owners then told the tenant her lease would be terminated. They sold the condo, settled with Davis and were dismissed from the suit.
Davis continued with the suit against other defendants. She lodged complaints about smoking, including cigarette and marijuana smoke, from a new source. A proposed smoking ban was not approved by owners.
The district court granted the defendants' motion for summary judgment, stating that a ban would fundamentally change the association's smoking policy by barring residents "from engaging in a lawful activity on their own property."
Sixth Circuit analysis
The appellate court stated that Davis did not show that her request qualifies as a "reasonable accommodation."
"Text and precedent both show that the phrase 'reasonable accommodation' means a moderate adjustment to a challenged policy, not a fundamental change in the policy. Davis's smoking ban falls in the latter camp," the opinion stated.
The court added that courts reject requested changes that interfere with the rights of third parties.
The association bylaws do not specifically prohibit or even regulate smoking, the opinion stated.
"The record shows instead that the Association has long read the bylaws to permit smoking and that Echo Valley residents have long smoked in their homes. The bylaws do, by comparison, specifically prohibit many activities, ranging from keeping a dog or cat in a condo, to drying one's clothes in common areas, to shooting a BB gun, to displaying a sign. If these bylaws meant to ban smoking, they would have done so with similarly specific language," the opinion stated.
The opinion mentioned that Davis is not suing the violators as the offending condo was sold and the tenants moved out, and Davis doesn't mention any other smokers by name. It also stated that the association and management did not ignore Davis' concerns, citing efforts leading to the proposed smoking ban rejected by condo owners.
Attorney comments
Gocha said he was surprised and disappointed by the opinion, which he said "establishes truly novel legal principles that have frightening implications."
"The opinion advances a new canon of construction - i.e. 'general' restrictions must be interpreted to 'allow' or 'permit' conduct not otherwise prohibited by a 'specific' restriction," he said.
"Notably, nowhere in the bylaws does it 'allow' or 'permit' smoking. Rather, the opinion uses the fact that the bylaws have some specific prohibitions (e.g. no pets) to read all general provisions out of existence. Thus, under the opinion's reasoning, bylaws that prohibit pets, unsafe activities, and nuisances must be read to 'allow' and 'permit' all non-pet related unsafe activities and nuisances. To my knowledge, the opinion adopts the most limited view of condominium association power in United States history."
Gocha added that the opinion "dictates that bylaw provisions must be interpreted to 'allow' or 'permit' activities that are 'generally expected' and adopts a 'default rule that smoking cannot be considered a nuisance in a condo complex that allows it.'"
"Unfortunately, the opinion bars all tobacco-related nuisance claims in cases where there is no explicit bylaw, rule, or regulation prohibiting smoking," he said.
He also cited examples of evidence showing that smoking was a problem at the complex, including several residents being driven out of their homes by it.
Gocha said the opinion bars nearly all disability-based Fair Housing Amendments Act claims.
"While softly worded, the opinion harshly holds that the disabled cannot survive summary judgment if they were able to survive the discrimination. Further, the opinion suggests that reasonable accommodations are exclusively limited to exemptions and cannot in any way burden third parties. It is exceedingly difficult to imagine a disability-based Fair Housing Act claim that could satisfy such a narrow view of disability rights," he said.
Defense counsel Kay Rivest Butler did not comment on this case by deadline.
Published: Mon, Apr 20, 2020
