Complaints of smoking in condo rejected by federal courts.

Byline: Lee Dryden

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 (MiLW No. 01-101765, 18 pages), 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...

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