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03/14/13 It's The Law: Condominium is "Smoking"

It's The Law

Condominium is "Smoking"

(03/14/13)

Question:

I live in a condominium. My neighbor is a heavy smoker and it is really bothering me. Can the condominium ban smoking?

Answer:

Your question hits one of the hot issues in condominium living. As governments pass stricter laws about smoking in public places and the non-smoker majority grows, the effort to stamp out smoking everywhere seems to grow with it.

In California, at least 23 cities and counties have placed a total ban on smoking in multi unit housing, including condominiums. In Chicago, a condominium association recently amended its Declaration to prohibit smoking, even inside units. Smoking is allowed in a unit only if it is restricted to a single room that has been equipped with an association approved and self contained air filtering system. The list of smoke free housing projects grows each year.

In Florida, there is no appellate court case directly on point nor is there a statute which clearly addresses this issue. That means smoking restrictions fall within the rule making authority of the board of directors or the authority of unit owners to amend their Declarations of Condominium.

The board of directors may lack the authority to ban smoking within units but, the board likely has authority to adopt rules restricting smoking in common areas such as hallways, pool deck and community rooms. Authority springs from Section 718.111(3) (4) of the Florida Condominiums Act which grants associations power to manage condominium property and the common elements. That authority is also generally duplicated in the Declaration of Condominium or Bylaws for a condominium.

For rules not found in the Declaration, a rule must be reasonable to be enforced by the courts. If the rule is contained in the Declaration, it is much more difficult to challenge as the challenger must show the rule is wholly arbitrary, contrary to public policy or that it annuls a fundamental Constitutional right.

Florida courts have found rules regulating or prohibiting use of alcoholic beverages in a clubhouse or common areas reasonable. They have also upheld rules addressing the use of pools, parking and almost all other common facilities, frequently deferring to the business judgment of a board of directors. Since second hand smoke is a well known health hazard and also considered a nuisance by many, it is likely a board of directors can adopt rules limiting or prohibiting smoking in common areas and that such rules would be found reasonable by the courts. That is particularly true in light of the increasing prohibition of smoking in public areas by various governments. Restricting smoking inside a unit may be more difficult.

Most Declarations prohibit unit owners or occupants from engaging in activities that are a nuisance to other owners. Even where the Declaration does not include that prohibition, boards have adopted rules addressing common nuisances like noise emanating from a unit. Could a board adopt a rule regulating smoke emanating from a unit?

In Belleair Palms Terrace Association, Inc. v. Smalenberger, Arbitration Case No.: 09-02-0885, the association brought action against a unit owner who had removed extensive portions of drywall (a common element) creating a nuisance by allowing cigarette smoke to go from his unit to adjoining units. The unit owner did not respond and the arbitrator ordered the unit owner to restore the drywall and to cease smoking in the unit during the required drywall restoration. That case indicates the arbitrator with the Division of Florida Condominiums, Timeshares and Mobile Homes agreed that cigarette smoke is a nuisance. However, that case did not ban smoking within the unit as a nuisance after the drywall was restored.

Limitations of use of the interior of a condominium may butt heads with Constitutional protections of private property rights. For that reason, limitations on interior smoking are best addressed by unit owner vote to amend the Declaration. The association could rely on the case of Woodside Condominium Association v.Jahren, decided by Florida's Supreme Court in 2002. In Woodside, investors bought a condominium unit for rental and the association amended its Declaration to limit rentals. Florida's Supreme Court held that buyers of a condominium know the Declaration can be amended by unit owner vote and that such amendments are given a strong presumption of validity. The restriction was upheld, as not being arbitrary, against public policy or in violation of a fundamental Constitutional right.

If the rationale of Woodside is applied to a smoking ban adopted by unit owner vote, the ban will likely be upheld. But, if the Florida courts somehow determine that smoking is a fundamental right deserving greater protection, the ban might be struck down. Most likely the safest course would be to adopt an amendment with a grandfather provision for unit owners not voting in favor of the amendment.

As in many condominium issues, smoking can become highly emotional. That it makes it important that action by your association be guided by an experienced attorney.

By: William G. Morris, Esquire

William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.

Questions for this column can be sent to: William G. Morris, e-mail: wgmorrislaw@embarqmail.com or by fax, (239) 642-0722 or The Marco Island Eagle

Other articles of interest can be viewed at our website, www.wgmorris.com.

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