Over the past forty years, the United States has experienced a sweeping movement to ban smoking from just about everywhere. Many condominium owners’ associations (COA) have adopted smoking bans that prohibit owners from smoking in common areas and even inside their own living space. Medical marijuana complicates this issue even further.

 

Smoking in Common Areas vs. Units and Restrictions in the Declaration vs. Rules

The Florida Clean Indoor Air Act of 1985 bans smoking in common indoor areas of a condominium association, but not exterior.  However, the declaration can also prohibit smoking within units or in exterior common elements or association property.  Rule making authority can also be utilized by a board of directors if the authority to adopt such rules is in the Declaration, raising the question of whether or not a smoking ban at exterior common areas or within a private residence is reasonable. Despite various rulings in multiple jurisdictions, it is uncertain under what specific circumstances smoking in individual units can be declared a nuisance or can be prevented by rule adoption authority.

 

A General Rule – Smoking Must be Restricted in the Condo Declaration

Condo associations are in place to protect the community as a whole. If the board unilaterally decides to make the entire complex smoke-free, it may open the association up to resistance and the possibility of lawsuits.  A Declaration provision or amendment banning smoking is more likely to be enforced because Declaration provisions are “clothed with a very strong presumption of validity.”  When crafting such a declaration amendment, it can outright ban smoking throughout the condominium or could more specifically address items such smoking on private balconies, in units, and/or in interior or exterior common areas.  Such an amendment could also designate a smoking area or permit one to be designated by Board rule. Rules are more vulnerable to challenge because the authority to adopt them must be in the Declaration and they are subject to a test of reasonableness (which should be carefully documented in consultation with appropriate professionals).

 

A few benefits of making your community smoke-free are:

• Saving money on repairs.
• Reducing potential legal liability.
• Eliminating the number one cause of residential fires.
• Avoid conflict between owners over smoke.
• Eradicating any exposure to Class A carcinogens.

 

Do Unit Owners Have the Right to Smoke in Their Own Homes or to Cause Smoking to be Prohibited as a Reasonable Accommodation for a Medical Condition?

The issue of restricting unit owners from smoking in their own homes may also spark some controversy. In a recent federal appellate decision, a woman with asthma sued her condominium, claiming that they had “discriminated against her by not granting her reasonable accommodation request to ban smoking in her building, thereby violating the Fair Housing Act because of her disability.”  The appellate court determined that the refusal to ban smoking was not a nuisance and was not discriminatory, finding she failed to meet the requirements for a smoking cessation “reasonable accommodation.”

 

Can the Association Restrict Medical Marijuana?

While medical marijuana may be legal in Florida, marijuana is still an illegal controlled substance under federal law. Most declarations prohibit unlawful conduct. This would provide an arguable basis to restrict any marijuana usage (especially when not in medicinal use).  Nuisance arguments can also be made depending on the circumstances.  However, in the case of medicinal marijuana, there is a seperate issue of whether it would be a mandatory reasonable accommodation to allow it. Condominium association rules can arguably legally limit medicinal use to non-smoking varieties.

The issue of smoking within the confines of a condominium community poses complex legal questions and potential liability. It is best to get legal advice before addressing these issues, adopting smoking rules or making any changes to your condo declaration.