Question: I have owned my condominium unit for more than 14 years. I enjoy having an occasional cigar at the designated smoking section provided at the condominium pools. About a year ago, a new board decided to ban smoking at all the pools. Is there a grandfather clause for my type of situation? One of the reasons I purchased a unit in this particular condominium was that it permitted smoking at the pools. S.N. via e-mail
Answer: Several states (including Florida) have banned smoking in most public places. The gradual move toward smoke-free condos, and the extent of a board’s authority in this arena, is also one of the hottest topics (no pun intended) around the country. The Florida Clean Indoor Air Act, found at Chapter 386 of the Florida Statutes, provides a uniform statewide code to keep public places and public areas reasonably free from tobacco smoke. The Statute specifically regulates indoor “common areas,” including indoor common elements of a condominium. The law does not apply to outdoor common areas. That being said, your Board’s new rule does, of course, apply to outdoor common areas.
A Board’s rule-making authority is derived from the governing documents. Most condominium association governing documents do grant the Board rule-making authority regarding the common elements. Assuming your Board has this authority, and adopted the rule in a procedurally correct manner, the new rule will be found enforceable so long as it is “reasonable.”
While no Florida appellate court has yet tackled this issue, I personally feel that a rule banning smoking at the condominium swimming pools will be found to be reasonable. The ill health effects of secondhand smoke are well established. Further, many non-smokers are offended by secondhand smoke in their vicinity, even in an outside setting. Perhaps you could ask your Board to establish an outdoor smoking area on part of the property where other residents would not typically go.
Although there are always exceptions for certain types of situations, the Board is under no obligation to “grandfather” any owners or residents who previously utilized the “smoking area” at the pools.