Condominium and HOA Q & A:

Public-Area Smoking Bans and the ACLU

By Ryan D. Poliakoff / Published May 2016

Q

uestion:

Our board members seem to think we are opening ourselves up to a lawsuit from the American Civil Liberties Union (ACLU) if we pass a resolution banning smoking in our outdoor pool area. I do not think the ACLU would be interested in opposing a rule that is protective of our health. What is your take on this?

Answer:

I am confident that the ACLU has no interest in fighting public-area smoking bans. In fact, the ACLU itself admits that it “does not oppose smoking bans in public buildings, in the workplace, or in locations where non-smokers may be subjected to secondary smoke. The ACLU objects only to bans on smoking, drinking, diet, and hobbies in a person’s own home.”  So if your board is really concerned about the ACLU getting involved, you can recommend that they visit the ACLU website, and perhaps that will settle their nerves.

Honestly, though, I think that the ACLU is not the board’s likely adversary. More likely, they are using the ACLU as a general argument because they oppose a ban for one reason or another, probably because they are being influenced by smokers (or they are smokers themselves), and they simply do not want to ban smoking. It is extremely likely, though, that they have the power to do so. Most condominium and homeowners associations have very broad rule-making authority concerning common areas, and they can restrict behavior if it benefits the health, safety, and welfare of residents. The current trend of both public opinion and law in the United States is to ban smoking in public areas where non-smokers may congregate. We now have excellent scientific evidence that secondhand smoke is extremely harmful to health, and, even outside, there is no practical way to avoid smoke if smoking is allowed in the entire pool area. Most associations I deal with either ban smoking in the common areas or restrict smoking to certain locations. You can assure your board that neither the ACLU nor the federal or state government would have any objection to a smoking ban near the pool—the only challenge they need to worry about is from owners who want to continue smoking.

Question:

A condominium owner wants to erect an elevator. He is handicapped, and he wants to put the elevator in front of my condominium. Is he allowed to place it wherever he wants? Shouldn’t he place it near his condo?

Answer:

The Fair Housing Amendments Act, which prohibits discrimination against handicapped persons, requires housing providers (like condominium associations) to allow handicapped persons to make reasonable modifications to the common elements, at their own expense, if that modification is required to have full use of their home. There is no question that installing an elevator is, in general, a reasonable modification, and it’s a quite common one. The real question is why the elevator is being installed in front of your unit. Perhaps that’s the only place it can reasonably be installed, given the way the building is laid out. It is conceivable that, if the elevator interferes dramatically with the use of your own unit, it might not be considered a “reasonable” modification. I recall one case where a handicapped person proposed constructing a set of steps in a pool that would have taken up half of the pool, and that was not considered reasonable. But, if the best location for the elevator happens to be near your unit, and if it is just a question of you not preferring that it be near your unit, the association probably has no choice but to allow it.

Question:

We live in a community governed by a homeowners association and have recently received letters of violations from the ARC committee threatening litigation. In December of 2015, they adopted new guidelines regarding plants that would be accepted, including plants that do not bloom or have foliage in the winter. Some of our plants, both potted and rooted, were part of our landscape long before the new guidelines were approved. These plants range in value from $150 to more than $250, and moving them would harm or destroy them. Can we invoke grandfathering here, or does the association have the right to apply these rules to existing plants that were in place long before the guidelines were developed?

Answer:

Based upon the information you provided, grandfathering would come into play. Ex post facto (after the fact, or retroactive) laws are prohibited, and courts do not have the power to enforce a rule that would require you to change a characteristic of your home that pre-existed that rule. So, the association would not have the legal ability to enforce the new guidelines against you and require you to remove your plants. As a practical matter, the association could purport to fine you, and depending on the language of your governing documents, those fines could be significant (up to $100 a day, with an unlimited cap if the governing documents allow). And, if the fine is permitted to be $1,000 or more, and you don’t pay the fine, the association can foreclose on your home. So you may be forced to litigate to protect yourself, even if the association doesn’t actually sue you. It’s up to you whether the cost of moving the plants, and the principle involved, offsets the cost of fighting the HOA down the road.

Ryan D. Poliakoff

Partner of Backer Aboud Poliakoff & Foelster

Ryan D. Poliakoff is a Partner of Backer Aboud Poliakoff & Foelster and serves as general counsel to condominiums, homeowners associations, and country clubs throughout South Florida. He is the co-author of New Neighborhoods—The Consumer’s Guide to Condominium, Co-Op, and HOA Living. In addition to representing associations, he is a frequent contributor at seminars and workshops for attorneys and board members, and he has written hundreds of articles for magazines and newspapers throughout the United States. He can be reached at rpoliakoff@bapflaw.com. For more information about his firm, visit www.bapflaw.com.