Secondhand smoke is formed from a burning cigarette or the smoke exhaled by the cigarette smoker. Secondhand smoke contains over 7,000 chemicals, hundreds of which are toxic and nearly 70 can cause cancer. From 1964 to 2014, the Surgeon General reported that 2.5 million nonsmoking adults died from inhaling secondhand smoke. These are scary numbers and many people do not want to be subjected to secondhand smoke. So what can an association do?
Currently there are no Florida appellate cases addressing this issue. However, a Florida trial court in Broward County analyzed whether secondhand smoke amounted to a nuisance in the condominium context. The Court held 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 a nuisance because it interfered with the plaintiff’s use of the property that was beyond mere inconvenience or customary conduct. Additionally, the Court held that the excessive secondhand smoke was a breach of the covenant of quiet enjoyment. While the plaintiff was awarded medical expenses, loss of use of the premises, and remedial expenses from the neighboring unit owner, this was only a trial court decision, and it is not binding on other courts.
Further, in a Division of Florida Condominiums, Time Shares and Mobile Homes arbitration case, the Arbitrator held that smoking in the unit rose to the level of a nuisance. However, in this case, the association’s rule did not prohibit smoking in the units, but only required weather stripping in the doorway of the unit owner who smoked and use of an air purifier or filtration system if needed. The Arbitrator required the unit owners to install weather stripping and to use air purifier or filtration system in the unit.
With regard to prohibiting smoking on the common elements, the easiest option is to adopt a rule. Section 718.123(1), Florida Statutes provides, in part, as follows:
“…The entity or entities responsible for the operation of the common elements, common areas, and recreational facilities may adopt reasonable rules and regulations pertaining to the use of such common elements, common areas, and recreational facilities….”
Due to the Surgeon General report and the cases addressed above, it does seem reasonable to adopt a Rule prohibiting smoking on the Common Elements. There are different types of smoke (e.g., cigarette, marijuana, and vaping) and the Rules should cover all that are considered a nuisance by the Board.
What about restricting smoking in the units? Stayed tuned for Part 2.
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