Gulf Coast Condo Owner Magazine

association matters

Condo Units: The New No-Smoking Frontier
What A Colorado Court Ruling Could Mean To You
By Daniel H. Craven
“My home is my castle.” Maybe, maybe not, if you’re a condominium owner. After pushing through smoking bans in bars and restaurants, anti-smoking advocates have begun to set their sights on another target: condominium units.

These advocates have been predicting that it is only a matter of time before condominiums bar smoking entirely, not just in common areas, but inside individual condominium units as well. In fact, in 2006, a Colorado court upheld an amendment to the Declaration of Condominium prohibiting smoking anywhere within the boundaries of the condominium property, including the individual condominium units.

Two condominium owners had complained that smoke seeped into their units from a unit occupied by heavy smokers. When the association unsuccessfully tried caulking, installing foam insulation, and altering the return air ducts to prevent smoke from entering the other units, three of the four unit owners approved an amendment prohibiting smoking anywhere on the condominium property.

The smokers sued, claiming that the association had acted capriciously, that it lacked the authority to prohibit legal activities within residential units, and that it had not proven that secondhand smoke, rather than simply the smell of smoke, was actually seeping in the other units. They also claimed that the smoking ban violated the owner’s right to smoke within the confines of his private unit.

The trial judge rejected all of the smokers’ arguments, ruling that:

the association’s efforts to mitigate the smoke before it enacted the amendment demonstrated that the association had not acted “capriciously”;
the association properly based its authority to ban smoking on the Declaration’s anti-nuisance provision, which allows the association to prohibit any practice that interferes with the peaceful possession and proper use of the property by its resident (Note: To my knowledge, every association that I represent has a similar “nuisance clause” in its condominium documents); and
secondhand smoke qualifies as a nuisance and that whether there was actual smoke or simply a smoke smell is irrelevant.

As for the unit owners’ right to smoke in their own unit, the court offered that smoking is not a right protected by the Constitution. Furthermore, like our Alabama Gulf Coast, governmental jurisdictions have adopted laws designed to protect citizens from the adverse health effects of secondhand smoke in indoor areas.

It should be noted that the significance of the court decision is somewhat limited by the facts in this matter since the condominium was small and the building was older and, therefore, more susceptible to smoke seepage. Also, the unit owners had been complaining about the secondhand smoke for several years, and the association had undertaken extensive and unsuccessful efforts to address the problem before enacting the smoking ban.

However, given the growing number of people living in community associations and the increasing willingness of nonsmokers to assert their right not to breathe secondhand smoke, associations will almost certainly see more smoking disputes among its members in the future. In fact, management companies and health activists recognize that there is a growing voluntary movement by landlords and condominium associations to ban smoking inside apartments and condos, which they predict will result in tens of thousands of apartments and condominium units becoming smoke-free within five years.

Will this decision and judicial reasoning open the door for other associations to enact similar smoking bans?

The Colorado judge noted that there is plenty of medical evidence proving that secondhand smoke poses a health risk for nonsmokers, which is underscored by the adoption of laws in many states banning or restricting smoking in public places. In this lawsuit, the judge saw that the balance between the rights of smokers to indulge in a cigarette within the confines of their private homes and the rights of nonsmokers not to be harmed by secondhand smoke had tipped the scales of justice in the favor of the rights of nonsmokers.

Anti-smoking groups still have millions of dollars remaining from the class action settlements with tobacco companies to spend on campaigns against tobacco and secondhand smoke. Such anti-smoking campaigns have reached into California where two cities are considering comprehensive anti-smoking ordinances that would apply to all individual condominium units.

California may seem far away geographically and even further away philosophically; however, in Gulf Shores, a condominium property manager recently told me that she was getting a lot of calls from tenants saying second-hand smoke is filtering into the living units from elsewhere in the condominium building. She shook her head and stated, “They are not letting anyone smoke in their unit but smoke is drifting in from other people’s units, balconies or patios. They are getting sick in their own living space, and there’s not a lot they can do to protect themselves.”

In this regard, both Gulf Shores and Orange Beach have passed a smoke-free ordinance that prohibits smoking at condominium properties in all enclosed public places including lobbies, hallways, restrooms, elevators, reception areas, recreation facilities, libraries and other enclosed common areas. Exempt from the smoking ban, and clearly stated in the ordinances, are private residences. Therefore, individual condominium units are not covered by the ordinances, and individuals are free to exercise their right to smoke or not to smoke within a unit. In addition, open-air hallways, walkways and breezeways, parking areas, swimming pools and deck areas, and other such open space areas are not subject to the ordinances’ smoking prohibitions. However, recently an association board requested that I prepare a draft amendment to its Declaration to ban smoking in all of the open space common areas of the condominium property.

As you can see, the issue of “to smoke or not to smoke” has lit up our beach communities. The likelihood that smoking disputes will intensify and lead to more lawsuits involving condominium associations underscores the need for boards to remain cognizant of the issue. Not only will future cases continue to challenge association smoking bans, but associations that refuse to ban or restrict smoking may also face lawsuits by members who allege that they have been harmed by secondhand smoke and claim that the association has some liability for the damages they have suffered. This remains unplowed legal ground.

As we know, disputes between smokers and nonsmokers produce intense emotions on both sides, along with potential for considerable and lasting ill will. While it may well be that other courts will follow the Colorado court in elevating the rights of nonsmokers over those of smokers, association boards must find ways to respect the feeling of smokers, even as they recognize the rights and health concerns of nonsmokers. Even without pressure from anti-smoking forces, all association boards should take complaints about secondhand smoke seriously and try to propose remedies acceptable to all parties including documented remediation efforts. It is in the association’s interest to try to create remedies, rather than risk having those remedies imposed by a court.

This balancing act won’t be easy, but in the interest of resolving potentially divisive conflicts and preserving a sense of community among residents, it will be essential.
Board members should watch all of these comprehensive governmental smoking ban initiatives to see how far they go in requiring smoke-free condominium units.

Daniel H. Craven is an attorney practicing in Gulf Shores, Ala., who currently represents more than 100 condominum associations in the Gulf Shores and Orange Beach area. In addition to holding a Juris Doctorate in law, Craven also holds a master’s degree in business administration, a bachelor of science degree in engineering, and is a registered professional engineer in Alabama.