Question: I just read the question you answered in one of your prior columns about a man wanting to smoke cigars in the common area of his condominium complex. You said that “the ill-health effects of secondhand smoke are well established.” I live on the second floor of a two-story condominium building. When someone smokes on the lanai downstairs, the smoke comes up into my lanai. I don’t mind what anyone does in their own home. But when they smoke on their lanai, I can’t use my lanai. I have had cancer twice and I do not want to be exposed to secondhand smoke. Is there anything I can do? What are my legal rights?
M.T.
Answer: You are referring to my Oct. 19, 2016 post, “Can my condo snuff out my right to smoke?” That piece focused on the legality of a condominium association’s board of directors implementing a ban on all smoking at the swimming pool and other common elements, which I said was generally legally permissible. Your question focuses on your individual legal rights.
You may have the legal right to address the smoking issue if you can prove it is a “nuisance.” Florida courts generally define a “nuisance” as a condition which annoys or disturbs another in the free use, possession or enjoyment of their property or which renders the property’s ordinary use or occupation physically uncomfortable. For a nuisance to be proven, there must be a substantial and continuous or recurring harm. A mere annoyance is not sufficient. Also, the effect of the nuisance will be tested against an ordinary reasonable person with a reasonable disposition, in ordinary health, and possessing average and normal sensibilities. In essence, the courts will not afford protection to the hypersensitive individual.
In a widely reported 2005 lawsuit in Broward County, a smoking dispute in a condominium was litigated as to whether secondhand smoke amounted to a nuisance. In that case, the plaintiff argued that excessive secondhand smoke from a neighboring apartment was detrimental to her family’s health. The judge ruled that the secondhand smoke gave rise to a disturbance of possession, or trespass, because it exceeded common secondhand smoke customarily a part of everyday life. The Court also found the secondhand smoke to be actionable as a nuisance because it interfered with the plaintiff’s use of the property that was beyond mere inconvenience or customary conduct. The plaintiff and her family had recurring illnesses as a result of the smoke and had to vacate the premises on several occasions.
Additionally, the judge found that the excessive secondhand smoke was a breach of what is known as the covenant of quiet enjoyment. The plaintiff was awarded medical expenses, loss of use of the premises, and remedial expenses from the neighboring owner. However, this was only one trial court decision that has no binding value as legal precedent. I recommend you consult with an attorney to further explore this situation.
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