Q: My condominium association board recently implemented a “no-smoking” policy after receiving numerous complaints about second-hand smoke. Several residents continue to smoke in their unit and on their balcony, insisting they have the right to do so in their own home. The situation is becoming increasingly contentious. While some residents support the policy, others are starting to question whether it is worth the ongoing conflict. What are your thoughts? (P.S., via e-mail)
A: This is always a contentious issue. The issue is not clearly addressed in the statutes, nor is there any Florida appeals court case directly on point, so some deductive reasoning and prediction of a court’s opinion is required. Obviously, predicting human behavior, including the minds of judges, is hardly an exact science.
There seems to be little doubt that science has well established that exposure to secondhand smoke is unhealthy. Also, the smell of secondhand smoke is considered noxious to most people, perhaps (or perhaps not) rising to the level of a legal nuisance. It is also a fact that cigarette and cigar smoking is a lawful behavior by those who choose to engage in it. Balancing these rights is not easy, especially given the fact that nicotine is highly addictive and many people who smoke would quit if they were able to do so.
The Florida Clean Air Act, Chapter 386 of the Florida Statutes, also comes into play. This law specifically includes common spaces of condominiums and prohibits smoking in “enclosed indoor workplaces.” Under this law, smoking in indoor and roof covered or partially covered common spaces of condominiums is prohibited by law.
Florida courts have consistently upheld the principle that condominium living inherently involves a greater degree of restrictions on individual rights compared to other forms of property ownership. This was probably best expressed by a Florida appeals court over half a century ago, where the court wrote: “Every man may justly consider his home his castle and himself as the king thereof; nonetheless his sovereign fiat to use his property as he pleases must yield, at least in degree, where ownership is in common or cooperation with others. The benefits of condominium living and ownership demand no less.”
I tend to break smoking restrictions into two categories, smoking in the unit (apartment) and smoking on common elements. As to outdoor common areas, such as swimming pools, I believe a board of directors has broad discretion to adopt reasonable rules, including limitations or bans on smoking. I also encourage associations to consider establishing approved outdoor smoking areas, as this can cut down on violations by people who are unable to curb their desire/need to smoke.
Prohibiting smoking in units is different. While one’s home is their castle, the air circulation system in many condominiums is such that secondhand smoke invading other units cannot be prevented. Under Florida case law, provisions of a declaration of condominium are “clothed with a presumption of validity,” which is why I believe that a “no smoking in units” restriction is best enacted through an amendment to the declaration. Although not binding as legal precedent, I am aware of at least one decision from the arbitration program provided by Florida’s regulatory agency which upheld the validity of a declaration amendment banning smoking inside the apartments.
Another common source of contention is outdoor balcony/lanai areas, which a declaration may designate as limited common elements or as part of the unit. While a board rule may suffice in some cases, a declaration amendment may be a better strategy in others, a matter to discuss with the association’s attorney.
Of course, the association needs to be able and willing to enforce any restriction it enacts. Established outdoor smoking areas and amendments which “grandfather” existing smokers regarding smoking inside the units, are common approaches to limiting confrontations. I think the board should get a good sense of community sentiment, consult with counsel as to your goals and challenges, and make a decision based on those efforts.
Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.