WHERE THERE’S SMOKE …

Just how far can a Board go in placing restrictions upon an owner’s ability to smoke in a condominium association? Many Boards want to prohibit smoking in or upon the common elements. Some Boards want to prevent owners, tenants and guests from smoking within the units. With several states (including Florida) having recently banned smoking in public places, this issue has been the topic of much conversation among condominium directors. There is no appellate case decision in Florida to guide us here. However, this author believes that an association can, through an amendment to the Declaration of Condominium, prohibit smoking within the condominium common elements and the units. In fact, the Board could probably do it by adopting a rule which, in most cases, wouldn’t even require a membership vote. The Florida Clean Indoor Air Act (“the Act”), contained within Chapter 386 of the Florida Statutes, provides a uniform state-wide code to keep public places and public areas reasonably free from tobacco smoke. The Act prohibits people from smoking, except in designated smoking areas contained within the common elements. However, association’s can never permit smoking in the common element hallways, corridors, lobbies, aisles, water fountain areas, restrooms, stairwells, entryways, or conference rooms. All other indoor “common areas” are also “no smoking”, unless the Board has specifically designated the area as a smoking area. Smoking may occur outdoors unless the Board has adopted a no smoking policy with respect to outdoor areas.

The law is not clearly developed as to whether Boards may prohibit unit owners or tenants from smoking inside the units. There is no Florida appellate case that interprets the Act to allow the prohibition of smoking inside a unit. However, case law in other jurisdictions have affirmatively upheld restrictions against smoking in a home and have awarded damages as a result of second hand smoke, under certain circumstances. For example a California Court issued a restraining order prohibiting an owner from smoking in his garage, as the smoke permeated into a neighboring condominium unit. Similarly, a Florida Circuit Court entered a ruling allowing a neighboring unit to recover damages for nuisance, trespass and breach of the covenant of quiet enjoyment as a result of second hand smoke, even after the homeowner installed a purifier and the association installed a mechanical fan designed to prevent smoke from entering neighboring units. Further, in 2007 a California city enacted an ordinance that prohibits smoking in apartments, condominiums, and townhouses that share a common floor and ceiling. Under the ordinance, such owners must include no-smoking provisions in all new leases and renewals of existing leases. So, the concept of completely banning smoking in one’s own home is not that far-fetched.

Florida law provides that restrictions within a condominium declaration are presumed to be valid and enforceable as long as they are not wholly arbitrary in their application, in violation of public policy, or abrogate some fundamental constitutional right. The question of whether smoking in the home is part of a fundamental constitutional right has not been addressed by the United States Supreme Court. However, in 1995, the Florida Supreme Court ruled that there is no state or federal constitutional right to smoke when it decided that a governmental entity could refuse to hire smokers. See Kurtz v. City of North Miami, 653 So.2d 1025 (Fla. 1995). Thus, until there is a determination otherwise, it is reasonable to believe that restrictions against smoking, if created through an amendment(s) to the declaration of condominium (with the requisite membership approval), are valid and enforceable.

In fact, the Board on its own could probably even adopt a rule that prohibits smoking in the units (which typically does not require a membership vote) because such a rule relates to the health, safety and welfare of the unit owners. Like they say, where there’s smoke there’s fire.

Florida Clean Indoor Air ActSmoking