Apartment dwellers plagued by secondhand smoke have little recourse

Gil doesn’t smoke. And smoking isn’t allowed in the eight-story Northwest D.C. apartment building she calls home. But smoke seeps in — through electrical sockets, air conditioning systems, crevices between floorboards and gaps in insulation.

“I had to transfer all my belongings in my bathroom to my kitchen to [brush] my teeth, to wash myself, because it was so full of smoke,” she said.

For Gil, who has a history of pulmonary embolisms, chronic secondhand smoke exposure could put her at greater risk of another clot.

Yet in the District, there are no laws that protect tenants against secondary exposure to smoke in their apartments. Landlords can prohibit smoking in their leases, and many do, said Joel Cohn, legislative director at the D.C. Office of the Tenant Advocate. At the Parkwest, where Gil lives, all leases issued since late 2016 have no-smoking clauses.

But residents of several D.C. apartment buildings told The Post their landlords weren’t enforcing these rules. When they do, court records show landlords can get stuck in years-long court eviction battles with residents while their neighbors continue breathing secondhand smoke.

So in May 2022, Gil filed a lawsuit against her landlord, Daro Realty.

“My clothes were smelling like cigarettes all the time,” she said, and the rest of the building wasn’t much better. “The stairs, the elevator — everything is full of smoke.”

Daro Realty could not be reached for comment. Its parent company, Infinity Collective, did not respond to requests for comment. Borger Management, which took over building operations last year after Daro Management was forced to dissolve in 2022, declined to comment because the case is still pending.

J.P. Szymkowicz, an attorney who has represented nonsmokers in more than 30 housing cases, said the process can be so slow that he often recommends tenants move out.

Gil said Daro made the same suggestion. It’s not a realistic option for her, she said, since she relies on rent control to afford housing in the District, and it’s left her feeling pushed out of her home even though she said she’s done nothing wrong.

‘It looked like a fog’

Outside the Parkwest, a sign reads: “No smoking within 25 feet of entryways, doors and windows. Thank you for respecting our smoke-free community.”

But at many points, “you could actually see [the smoke],” said Timothy Washington, a Marine Corps veteran who has lived in the building since 2017. “It looked like a fog, like a smoke machine. My eyes burned.”

In 2021, Daro offered to move Washington to an apartment on another floor. He said he has experienced less secondhand smoke since he switched units, though the problem hasn’t been eliminated.

Washington, who has first-stage renal failure that can be exacerbated by chronic secondhand smoke exposure, said he has looked for another place to live but hasn’t found anything in his price range that’s more appealing than his $2,405-a-month one-bedroom residence, even if it’s compromising his health.

Some states have passed laws to regulate smoking in apartment buildings, noted Cynthia Hallett, president and CEO of the American Nonsmokers’ Rights Foundation. Utah law declares secondhand tobacco smoke in residential units a nuisance, establishing a basis for lawsuits. Maine and Oregon require landlords to disclose a building’s smoking policy to prospective tenants. And the U.S. Department of Housing and Urban Development requires all public housing in the country to be smoke-free.

Sixteen states and U.S. territories have restricted smoking in common areas of private housing, according to the Centers for Disease Control and Prevention, but none have restricted smoking in residences there.

Marijuana advocates are wary of efforts to crack down on smoking in people’s homes, since D.C. law prohibits smoking marijuana in public spaces. People who smoke medical marijuana need safe spaces to do so, said Morgan Fox, political director of the National Organization for the Reform of Marijuana Laws, a marijuana advocacy group. A designated outdoor smoking area, Fox said, “would provide a legal space to consume cannabis that is away from the general public and is also not in danger of encroaching upon quality-of-life concerns for neighbors.”

‘How much more do I have to take?’

Gil and her neighbors feel helpless as cigarette butts accumulate on their balconies and windowsills, dropped by smokers from the roof deck and windows on upper floors. Several have also had to contend with rent increases as they’ve battled management over the smoke.

Daro raised Gil’s monthly rent from $2,035 to $2,161 in 2022. Since the building’s apartments are rent-controlled, the landlord can raise the rent only if the units are in “substantial compliance with the housing regulations,” according to D.C. law. Marc Borbely, Gil’s attorney and the founder of the D.C. Tenants’ Rights Center, said the chronic secondhand smoke exposure could violate the housing code, since the smoke has impaired the health of the building’s tenants.

“Just like a landlord is required to prohibit roach infestations or mold or asbestos or other toxins from entering units and causing harms, similarly, every tenant in the District has a right to live in a unit that is free of secondhand smoke,” Borbely said.

A spokesperson for the D.C. Department of Buildings, which enforces the housing code, said in a statement that secondhand smoke and odors “are not considered code violations under District housing or property maintenance law” and that “DOB has no regulatory authority over residents who smoke in apartment buildings.”

In June, Gil paid about $650 to hire a secondhand smoke consultant to assess nicotine levels in her home. The consultant found relatively high concentrations of nicotine and estimated the smoke particulate concentration to be 339 micrograms per cubic meter, according to a report shared with The Post. The U.S. Environmental Protection Agency defines hazardous outdoor air quality as anything above 225 micrograms per cubic meter of smoke particles. The consultant wrote in the report that the degree of secondhand smoke exposure in Gil’s apartment “pose[d] a grave risk” of cardiovascular and respiratory disease and cancer.

Suzaynn Schick, who studies secondhand smoke exposure at the University of California at San Francisco, said the results suggested the unit was “smoky.”

“No one in the District should have to live in unsafe and unhealthy conditions,” Robert C. White Jr. (D-At Large), the chair of the D.C. Council’s housing committee, told The Post. He added, “If someone is smoking inside of a building in violation of their lease and harming other tenants’ health, a landlord has to be able to evict them.”

Last year, D.C. Superior Court Judge Ebony Scott ruled that secondhand smoke in Josefa Ippolito-Shepherd’s Cleveland Park duplex caused her significant harm and infringed on her right to fully use and enjoy her property. Her neighbor, who used marijuana for medicinal purposes, was ordered to stop smoking. (Schick said the compounds in cannabis and tobacco smoke are “more similar than they are different” and have comparable health consequences when breathed secondhand.)

But decisions in lower courts like D.C. Superior Court don’t set a binding precedent; another lower-court judge, including in the Office of Administrative Hearings, can rule differently, noted Steve Hessler, an attorney who has worked on dozens of cases involving enforcement of smoking bans.

As Gil’s case drags on, the battle in the Parkwest has gotten ugly. Tenants whom she’s pointed out to management as suspected smokers have blocked her path in the hallway, she said. Last summer, she found a menacing note on her door, a collage of cut-out newspaper letters that she shared with The Post, which read, “you have 30 days to move … before you get kill[ed],” followed by an expletive. She believes it’s connected to her fight against smokers.

Gil said she has spent more than $20,000 on legal fees and evidence-gathering for her lawsuit. Her health and well-being have declined, she said, and her nausea is often unbearable until she opens her windows. In the winter, she sometimes wore mittens in her apartment and tried to spend as much time outside as she could, she said.

It’s been nearly two years since she filed her lawsuit, and she still has nothing to show for it.

“How much more do I have to take?” she said.