Smoking

Is There a Legal Recourse?

By Ryan D. Poliakoff / Published February 2019

Q

uestion:

     Our condominium board has banned smoking in the units, but it allows smoking in all public areas around the condominium building, including the six-foot walkway (which is the only access to the upper two floors). We have asked the board to pass a rule restricting smoking in these walkways, but they have not done so. Our grandson has cystic fibrosis, and smokers on the walkway certainly exacerbate his problems. What is our legal recourse?       
-T.E.

Answer:

     Smoking, whether cigarettes, cigars, or other substances, has become a major issue in every condominium building. Some people are such heavy smokers that the smoke coming from a single unit can permeate an entire building floor and even enter the other units. This is a regional and cultural issue as well—in some areas of Florida, smoking is more widely accepted and banning smoking would be unheard of, whereas in other areas smokers make up a very small minority of residents.

     The first question is, does a condominium have the power to regulate smoking in the first instance? Certainly, the membership could pass an amendment to the declaration of condominium banning smoking, even within the units. Amendments to condominium declarations are afforded a broad presumption of validity and are only found invalid if they are discriminatory, arbitrary in their application, or abridge a fundamental right—and that is not the case with smoking.

     As to rulemaking by the board, it depends on how the board’s rulemaking authority is described in the governing documents. Usually the declaration or the bylaws will state that the board has the power to promulgate rules governing the common elements and the units, and that power is often broadly described as pertaining to the general welfare of the owners. If that is the case in your documents, the board would have the power to ban smoking in the walkways, if it chose to do so.

     If the board has the power to restrict smoking, but it simply refuses to do so, you might be able to argue that smoking on the walkways creates a legally actionable nuisance that interferes with your quiet enjoyment of your unit. However, I think that is going to be a very difficult case to make. A nuisance must be so continuous and pervasive that it would substantially interfere with the use of your unit when judged by a person of ordinary sensibilities. You will not be able to use your grandson’s disability to argue that the smoke constitutes a nuisance—rather, a court would judge whether an ordinary person would be affected. I am aware of a case where smoke was so thick that it was visible in a neighboring unit, and in that case the smoke was found to be a nuisance; but there are few similar cases, and I doubt that smoking on an outdoor walkway would qualify.

     Finally, you could argue that the association is obligated to ban smoking on the walkways pursuant to the Fair Housing Act. The FHA provides that a housing provider, like a condominium association, is prohibited from discriminating against residents with disabilities, and that includes the obligation to make reasonable accommodations of its rules and policies when necessary to afford a disabled person the full use and enjoyment of the premises. Your grandson is clearly “disabled” according to the law, as his cystic fibrosis is a condition that affects one or more of his daily life functions. The question would therefore be, is the association  legally obligated to prohibit smoking in areas that may affect his breathing in order to afford him the full ability to live in your unit, and does such a prohibition  constitute a “reasonable” accommodation? Unfortunately, that argument has been tried and rejected at least once. In a recent case, a District Court in Detroit dismissed a case brought by an asthmatic breast cancer survivor claiming that her condominium association was obligated to ban smoking as a reasonable accommodation of her disability. The court was very skeptical of these claims, suggesting that significant expert testimony would be needed to directly tie smoking to a worsening of the plaintiff’s asthma condition, and further stating that, even if such connection had been demonstrated, it is unlikely that a court could consider a complete ban on a legal activity to be a “reasonable” accommodation, particularly given that the membership in this case had voted upon, and rejected, a smoking ban. Now, in your case you would be requesting a less aggressive accommodation, but I still think it would be a very difficult argument.      

     Every court is different, and every case is judged on its individual facts—but overall, I think you unfortunately have very few legal options. I would instead look to insulating your unit from outdoor smoke and odors (such as installing active ventilation and more aggressive weather stripping), or simply work to convince a majority of your neighbors to support a smoking ban.

Ryan D. Poliakoff

Partner, 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.