BANNING SMOKING: WHAT’S THE POWER OF THE HOA?X

ASSOCIATIONS TAKING THE STEP TO BAN SMOKING ALTOGETHER SHOULD FIRST LOOK INTO THE LAWS AND LOCAL ORDINANCES IN THEIR AREA…BANS CAN EXTEND TO INCLUDE COMMON AREAS AND LIMITED COMMON AREAS, SUCH AS BALCONIES AND PATIOS.

Smoking in America has seen a decline over the years due to health risks and high costs. Many homeowners and condominium associations, price though, still grapple with the issue and how to determine their reach of power with regard to prohibiting smoking. Some seek to ban smoking in their units or common areas as a means of avoiding the smell and especially the health risks of secondhand smoke. Smoking bans complicate the matter, and certain associations seek to establish designated smoking areas. The power to restrict within an association remains the biggest question for board members and managers alike.

Associations taking the step to ban smoking altogether should first look into the laws and local ordinances in their area. Ashley R. Newman, Esq., an associate at Herrick, Feinstein, LLP, in Princeton, NJ, stated that associations do indeed have the power to limit or even prohibit smoking. “Associations can ban smoking in the common areas by virtue of their declaration and bylaws (collectively, the ‘governing documents’). Typically, the governing documents authorize the board to promulgate rules and regulations that promote the health and welfare of the entire community as well as to generate rules regarding the common areas in general,” Newman said. Such an authorization by the governing documents makes regulation of the common areas fairly clear, even when it comes to smoking. Newman continued, “However, the most effective means of dealing with the smoking issue in the common areas is for boards to amend their governing documents according to the procedure set forth in their bylaws, i.e., a vote by a certain number of units and/or percentage of common interest.” 

Amanda A. Barreto, Esq., an attorney at Ott & Associates Co., LPA, in Cleveland, OH, stated similarly that Ohio associations may prohibit smoking in common areas depending on the contents of their governing documents. She noted that bans can extend to include common areas and limited common areas, such as balconies and patios. “The ban could come by way of an amendment to the declaration. Not only does an amendment provide for a ban approved by a percentage of current owners, but it also provides constructive notice to all prospective owners,” Barreto said. Allowing residents some say in the matter further ensures that the transition to a ban will go more smoothly.

Stephen R. Buschmann, an attorney at Thrasher Buschmann & Voelkel, P.C., in Indianapolis, IN,  said that he is not aware of any smoking prohibitions in single-family neighborhoods in Indiana if those buildings are purely residential. State and local laws prohibit smoking, though, if buildings are used for business purposes, including as daycares. “IC 7.1-5-12 prohibits smoking in a ‘public place,’ which is defined as an enclosed area of a structure in which the public is invited. That statute also prohibits smoking within eight feet of any public entrance. This statute could include common entryways and common hallways in a condo or a multi-unit housing addition with common entrances. The state statute does not prohibit a more restrictive local ordinance, and a number of counties have adopted more restrictive ordinances,” Buschmann said. 

As an example, Buschmann mentioned that Marion County, IN, had adopted a similar smoking ordinance, which dictated, except for private residences and certain select businesses, a smoking ban in all public places and within twenty-five feet of any public entrance. “Some condominiums have adopted smoking bans for the common areas, but since the statute and, in many cases local ordinances, already cover the issue, such covenant restrictions are not necessary,” he said. In the cases of those Indiana associations that have adopted smoking bans within units, Buschmann said that the units shared a common ventilation system and therefore the possibility of exacerbating secondhand smoke throughout the building.

Individual associations can take different approaches to smoking bans, with variations in the severity of the restrictions. Banning smoking in common areas is the simplest step; some may seek to ban smoking throughout the association, including in the units themselves. “While boards can easily ban smoking in common areas, prohibiting smoking in individual units or even to limited common areas, like balconies, can be a more controversial step to take,” Newman said. She advised that boards determine their residents’ opinions, possibly through a questionnaire, in order to gauge the reaction to a ban. The board can then structure the ban around the response. “As such, the ban could be implemented in a variety of ways, such as a blanket ban throughout the entire building, a ban just for renters and not owners, a ban such that smoking is confined to certain areas, or a ban that would allow current owners to be ‘grandfathered in’ so that a full ban could be phased in gradually, making the condominium association completely smoke-free over time,” Newman said. Buschmann advised against bans within residences based solely in the interest of owners’ health. Associations may experience pushback from owners who wish to make those health decisions on their own, even if they do not smoke themselves. Associations looking to reduce smoking do have a wide array of options outside of a general ban; tailoring any restrictions to the desire of the community can help keep the peace. 

With regard to a blanket ban specifically in Ohio, Barreto said, “At least one state court in Colorado has upheld a complete smoking ban in a condominium association, which prohibits smoking in common areas and units. Some associations in Ohio have tested this complete smoking ban, but there is no relevant case law to rely on yet.” 

Once a ban is in place, the association needs to determine the logistics of enforcing that ban. “The smoking ban could be enforced similarly to other restrictions in the community. Violations of such restrictions are usually relayed to the board or management by owner complaints. Written, signed owner complaints can be used as evidence against a violating owner. The installation of cameras to monitor violations, including smoking, can be considered by the board, but there are many other considerations to review before making that decision,” Barreto said. Camera installation also raises financial questions for associations. If restrictions extend to smoking in units, associations would need to rely on owner complaints to enforce this as well.

If an association does decide to go the route of a smoking ban, it should of course rely on state laws and local ordinances, as well as the governing documents, to determine the reach of the association’s power. The opinions of residents are another important factor in the decision to impose a ban, as it ultimately affects them the most. Taking all of this into consideration can result in a good move forward for your association.

If you or someone you know is trying to quit smoking then consider buying a vaporizer pen.
Which will ease you into quieting and is so much healthier for you.

By Katie Robinson