Should landlords prohibit vaping?

Written by Posted On Thursday, 07 March 2019 14:23

Landlords and condo associations frequently have rigorously-enforced no-smoking policies which most commonly prohibit smoking in common areas, but may also extend to prohibiting smoking inside of one's own apartment. Landlords may in general legally refuse to rent to smokers entirely, as smokers are not protected by antidiscrimination laws, and landlords who ask whether or not you smoke as part of the application process are within their legal rights to do so.

The popularity of e-cigarettes and vaping has caused a few grey areas and a lot of questions to come up for both landlords and tenants. The biggest objection landlords and non-smoking tenants have always had with smokers is second-hand smoke and the lingering scent left behind from combustible cigarettes. Renting out a unit with lingering tobacco scent is often problematic and may force a landlord to spend extra funds on a deep-cleaning before showing the unit, causing both extra expense and delays.

The risks of "second-hand vaping" have been largely debunked however, and the vapors themselves are mostly undetectable. A recent blog published by Vapor Authority, one of the largest online retailers of vaping equipment, noted that a public health statement by the American Cancer Society notes the utility of vaping as a viable tool for smoking cessation, and that health risks from vaping, or from "second-hand vaping," are minimal compared to that of combustible tobacco cigarettes.

Where can a tenant vape?

This raises the question of whether, even if a landlord has forbidden smoking, a tenant would be within their rights to vape.

Generally speaking, smokers, and indeed those who vape as well, are not a protected class, so a landlord may prohibit it at their discretion so long as they do so uniformly. The laws vary by state and for the most part however, vaping is not yet addressed in landlord-tenant law. In Minnesota for example, the Minnesota Clean Indoor Act requires landlords to maintain smoke-free common areas, but tenants are not prohibited by law from smoking in his or her own apartment (although again, the landlord may impose that rule on their own). Minnesota's Clean Indoor Act however, does not regulate vaping, and so at least in that state, a landlord may allow at their discretion vaping, but not smoking, in common tenant areas.

Vaping, unlike combustible tobacco, isn't always purely for pleasure or recreation. It is often used as either a tool for smoking cessation, much like nicotine patches or gum, or as a delivery mechanism for medical cannabis, which in many states and municipalities is legal. While smokers in general don't fall under any protected class, those with medical disabilities or a doctor's prescription may enjoy such protection, and if that's the case, a tenant in that situation may have a legitimate claim to be able to vape in his or her own apartment, regardless of landlord rules to the contrary.

Landlords proceed with caution, tenants with courtesy

Landlords will need to revisit their policies on smoking to accommodate those tenants and prospective tenants who vape instead of smoke. Smoking prohibition by apartment managers has long been generally accepted – but the reasons behind that prohibition do not apply to vaping. Before applying the same rules to vaping as they do to smoking, landlords will need to "take the pulse" of the tenant community under their domain. Of course, landlords have wide discretion, and may well decide that the benefits of smoke-free vaping may be a positive that should be allowed.

Tenants too, must remain cautious. Like any freedom, just because you can, doesn't mean you should, and common courtesy applies especially when in group settings. If you're in a common area, learn to say, "Do you mind if I vape?"

Laws regulating vaping are still emerging and landlords will need to stay on top of the latest regulations, as well as the desires of their tenants before imposing new rules. 

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