State Specific Question About: OREGON (OR)

My husband and I are renting out our duplex and we are first-time landlords. The question I have is can we legally say "no" to an applicant due to them smoking outside? We have designated our duplex as a no-smoking duplex, but all I can find are laws pertaining to saying "no" to the inside of the unit. Can I legally disqualify their application b/c they smoke outside? Also, if they claim smoking is for a medical purpose, do I still have the right to not accept their application?

Any help would be appreciated as I have an applicant in limbo.

Thank you!

What are they smoking?

The applicant didn't write on the application what they are smoking. Merely, they said that it was for "medical purposes." Do you know if I can ask what they are smoking or is that too personal of information??

I am reading up on all that I can to answer this question, but am finding myself in a totally new realm of information.

Is there anything on their application that would disqualify them?

There is nothing in the application that states no smoking. However, in the ads we placed within the community, we have stated a no-smoking policy.

No, not at all... You can't possibly put all your criteria on your application.

So the policy is not void, just because it is not application.

What is wrong with them smoking outside? If I was you, I would have a designated area (with ash trays/bucket) some 20 feet from the building and call that the smoker's pit.

Did you run their credit, checked LL references, what about their income, how long on a job.

I found 3 sites that hopefully is what you are looking for.

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cohas.org/faq.html

Oregon Department of Human Services FAQ: Should I tell my employer?

Oregon's medical marijuana law does not force anyone to accept your use of marijuana, so different employers handle things each in their own way, Many employers are accepting of medical marijuana use as long as it does not interfere with the job. Deciding what to tell your particular employer if you are subjected to drug testing is up to your judgement. We do not recommend testing this out with an unfriendly employer unless you have legal aid or an attorney.

Oregon Department of Human Services FAQ: Should I tell my landlord?

Lastly, as noted before, the law can not force your landlord to respect your use of medical marijuana or your grow room, and your landlord has the right to enter your home (his property) and inspect it. Telling your landlord is up to your discretion. We recommend having a landlord who chooses to respect your choices and your home.

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oregon.gov/DHS/ph/ommp/top20.shtml#7

7) Do I have to tell my landlord that I am a patient in the OMMP? Can my landlord evict me if I am a patient in the OMMP and have my grow site in my rental housing? Can I live in subsidized housing and be a patient in the OMMP?

It is up to you to decide whether or not to tell your landlord that you are a patient in the OMMP. Nothing in the OMMA specifically addresses whether or not you can be evicted because you are a patient in the OMMP, even if you have only the amount of medical marijuana allowed by law. Nothing in OMMP laws specifically addresses whether or not a person can be an OMMP patient and live in subsidized housing. If you have questions about these important issues, the OMMP recommends you talk to an attorney to learn about your rights and protections.

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iboughtaduplex.com/general-day-to-day-landlord/fair-housing-laws-and-not-renting-to-families-with-children.php

I don't allow smoking on the premises. Usually it is fine with people.

I make sure that service people I use don't smoke on premises either.

Once a Prop. Mgmt. co. approved someone who smoked outside.

After they moved out, I found out he put his cigarettes out on lower part of stucco of house. I hadn't seen it before sending security Deposit back.

My painter noticed it as he was doing other work.

Another thing I have found: People ask me if I have had smokers at my rental. If I had they wouldn't have rented because allergies so strong, it could be felt my next tenant.

Keep up you standard: NO SMOKING on premises.

HI CASSIE..

YES YOU CAN PROHIBIT SMOKING ON THE PROPERTY AND IN THE HOME

AS SHOWN.. YOU CAN SAY ON YOUR APP

NO SMOKING PROPERTY...

ASK DO YOU SMOKE ANY SUBSTANCE? ON YOUR APP

IF THEY SAY NO AND THEN THEY DO .. YOU CAN TAKE CIVIL ACTION UNDER A STATEMENT OF RELIANCE MOTION..

Public Health Institute

Laws that limit how and where people may smoke should survive a legal challenge claiming that smoking is protected by the state or federal constitution. Smoking is not mentioned anywhere in either constitution.

Nevertheless, some people may claim that there is a fundamental right to smoke.

These claims are usually made in one of two ways:

(1) that the fundamental right to privacy in the state or federal constitution includes the right to smoke, or

(2) that clauses in the state and federal constitutions granting equal protection provide special protection for smokers.

Neither of these claims has any legal basis.

Therefore, a state or local law limiting smoking usually will be judged only on whether the law is rational, or even plausibly justified, rather than the higher legal standard applied to laws that limit special constitutionally protected rights.

Right to smoke:

The argument that someone has a fundamental right to smoke fails because only certain rights are protected by the constitution as fundamental.

The U.S. Supreme Court has held that only personal rights that can be deemed fundamental or implicit in the concept of ordered liberty are included in the guarantee of personal liberty.

These rights are related to an individual's bodily privacy and autonomy within the home.

Constitution includes only marriage, contraception, family relationships, and the rearing and educating of children.

Very few private acts by individuals qualify as fundamental privacy interests, and smoking is not one of them.

Protected ‘class’ or group;

The second common constitutional claim made by proponents of smokers rights is that laws regulating smoking discriminate against smokers as a particular group and thus violate the equal protection clause of the U.S. or the California constitutions.

No court in any state, has been persuaded by these claims.

The equal protection clauses of the United States and many state constitutions, guarantee that the government will not treat similar groups of people differently without a good reason.

Certain groups of people such as groups based on race, national origin and gender c receive greater protection against discriminatory government acts under the U.S. and states constitutions than do other groups of people.

Smokers have never been identified as one of these protected groups.

Generally, the Supreme Court requires a protected group to have an immutable characteristic determined solely by the accident of birth.

Smoking is not an immutable characteristic because people are not born as smokers and smoking is a behavior that people can stop.

Because smokers are not a protected group, laws limiting smoking must only be rationally related to a legitimate government purpose.

Equal protection:

The equal protection clause not only protects certain groups of people, the clause also prohibits discrimination against certain fundamental interests that inherently require equal treatment.

The fundamental interests clause include the right to vote, the right to be a political candidate, the right to have access to the courts for certain kinds of proceedings, and the right to migrate interstate.

Smoking is not one of these recognized rights.

If a government classification affects an individual right that is not constitutionally protected, the classification will be upheld if there is any reasonably conceivable set of facts that could provide a rational basis for it.

So long as secondhand smoke regulations are enacted to further the government goal of protecting the public s health from the dangers of tobacco smoke, the regulation should withstand judicial scrutiny if challenged.

IV. CONCLUSION

There is no constitutional right to smoke. Claims to the contrary have no legal basis. The U.S. constitution guarantee certain fundamental rights and protect certain classes of persons from all but the most compelling government regulation. However, no court has ever recognized smoking as a protected fundamental right nor has any court ever found smokers to be a protected class.

To the contrary, every court that has considered the issue has declared that no fundamental ]right to smoke exists. So long as a smoking regulation is rationally related to a legitimate government objective such as protecting public health or the environment, the regulation will be upheld as constitutional.

Thank you, everyone, for your response and information that you've given! I am so grateful and found it to be extremely helpful and informative. We have rejected the applicant based not only on this issue but others as well so the matter is resolved. And yes, I additionally found out that my husband and I are not under the Fair Housing laws due to owning under 4 renal units and that we live in the other unit.

As a side note - marijuana is legalized in OR for medical purposes, but it isn't on the federal level which means that in itself, there would be a conflict of interest if we were to have an applicant with this standard on our property.