Smoking Rules and Home Owner Associations

SECOND-HAND SMOKE

Q. Can associations prohibit smoking in the common areas?

A. Yes. Most associations already prohibit smoking in enclosed common areas, such as elevators, lobbies, hallways, stairwells, restrooms, laundry rooms, etc. There is a move in many condominium associations to prohibit smoking on balconies because smoke drifts into other units. Some associations have also enacted bans in playground areas to protect children.

Q. Can associations prohibit smoking inside units?

A. Yes. In a written opinion by the Public Health Institute, people do not have a fundamental right to smoke. There is increasing discussion about prohibiting smoking in condominium developments altogether because of fire safety and nuisance reasons.

NUISANCE RULES. Instead of a complete prohibition, boards could adopt rules that allow owners to smoke in their units provided it does not annoy other residents. In the event residents complain of second-hand smoke, boards can require smokers to abate the nuisance by taking one or more of the following steps: (i) purchase HEPA filters (at the smoker's expense) and operate them inside the unit at a level that prevents smoke from migrating to surrounding areas, (ii) seal all penetrations in walls, ceilings and floors (at the smoker's expense) to prevent smoke from migrating to surrounding areas or (iii) require the owner to cease smoking in his/her unit.

ARCHITECTURAL STANDARDS. In addition to the above, boards can cure second-hand smoke problems over time by requiring condominium owners to firestop all wall, floor and ceiling penetrations whenever they remodel their units. This has the added benefit of reducing nuisance noise between units. Even though city inspectors routinely order owners (at the owner's expense) to firestop penetrations during remodeling, inspectors sometimes miss this item. By including the requirement in the association's rules, it is easier for boards to enforce it against owners who fail to firestop.

STATUTES & CASE LAW. Currently there is no statute or case law regulating second-hand smoke in common interest developments. However, there is a superior court case that was reported in the Los Angeles Times that absolved an association from liability for second-hand smoke between 2 units. While interesting, this case cannot be cited as precedent because it was decided at the trial court level.

Very truly yours,


Adrian J. Adams, Esq.
Adams & AuCoin, LLP

If your association would like to adopt rules or amend its CC&Rs to restrict second-hand smoke, contact us for a quote.

Adrian Adams may be contacted at www.adams-aucoin.com.