A condominium association may prohibit cigarette smoking in the common elements/common areas by adopting a Rule. An association may also prevent cigarette smoking on a balcony or patio, which are usually limited common elements. If such areas are limited common elements, then, just like with the common elements, the association may adopt a Rule prohibiting smoking on the balcony or patio.
A Rule prohibiting cigarette smoking in the units may be permissible if the condominium documents give the Board the authority to adopt Rules regarding the use of the Unit. However, under Florida case law, Rules must be reasonable to be enforceable. Therefore, if an association wants to completely prohibit cigarette smoking anywhere on the condominium property, including the units, the best option would be to amend the Declaration. Properly adopted amendments to the Declaration are clothed with a presumption of validity and are generally not subject to a challenge based upon reasonableness.
However, can an association also adopt a Rule or amend its Declaration to prohibit smoking marijuana? While an association may completely prohibit smoking marijuana on all the condominium property, including the units, by using the same procedure for prohibiting cigarette smoking, it raises some additional legal issues. Recently, the U.S. Acting Attorney General signed an order reclassifying state-licensed medical marijuana from a Schedule I drug to a Schedule III drug–which essentially legitimizes medical marijuana in Florida. Thus, a complete prohibition on smoking medical marijuana, without the possibility of granting an accommodation for persons with disabilities, may violate the Florida and Federal fair housing laws if the use of medical marijuana is necessary to afford a disabled person with equal access to housing.
If an association completely prohibits the use of marijuana, it must be aware that it may be required to provide a reasonable accommodation if a medical provider provides a written statement that the owner/resident who is seeking the accommodation is disabled in a way that qualifies him or her to use medical marijuana and that smoking marijuana is the only effective means for him or her to ingest the marijuana. Should an association receive such a written statement, it should send the written statement to its attorney to determine whether the association must allow such an accommodation under applicable fair housing laws.
The amendment procedure for Rules and Regulations and the Declaration of Condominium varies depending on the amendment language in the condominium documents. Therefore, an association should consult its legal counsel to determine what is required to amend the Declaration and Rules and Regulations, and to obtain legal assistance in preparing such an amendment.
