Article

Protecting the Well-Being of Communities: Controlling Smoking in Associations
by Brian J. McIntyre

Community associations have a responsibility to protect the health, safety and welfare of their members as they relate to community living. In this regard and in line with current trends, associations have begun to regulate smoking tobacco products within both units and common elements. Moreover, individual residents have started to take direct legal action against neighbors to prevent exposure to second hand smoke. Associations and residents have available several options to respond to the presence of second hand smoke within common interest communities.

It is well accepted that second hand tobacco smoke is detrimental to individuals who inadvertently are forced to inhale the smoke. In the context of community associations, many people have complained about being able to smell smoke emanating from neighbor units into their own units. In fact, the infiltration of second hand smoke from one unit into another is a potential health hazard to residents. Accordingly, associations and individuals affected by second hand smoke may seek legal remedies to prevent exposure to the smoke.

Associations Have Several Enforcement Options

Community associations are vested with the responsibility to oversee the property of the community and, to a certain extent, the welfare of their members. Associations potentially possess three legal avenues to address members’ concerns about second hand smoke exposure. First, an association may seek to amend its governing documents to include a direct prohibition of smoking tobacco products within the community, both in the common elements and within the units. If successful, though, such an amendment may be challenged by a unit owner.

This remedy was recently upheld in a Colorado district court in a matter entitled Christiansen v. Heritage Hills 1 Condominium Owners Association. In Christiansen, a unit owner sought to invalidate an amendment banning smoking. The court upheld the amendment, finding that it was proper, reasonable, made in good faith and not arbitrary or capricious. Moreover, the court found that the amendment did not violate public policy or a constitutional right.

Like the association in Christiansen, a community may seek to amend its governing documents to prevent smoking within units and the common elements. However, passing such an amendment will depend upon obtain- ing enough membership support. If enough support can be obtained, this remedy is the most likely association action to be upheld if challenged in a court.

Second, an association’s board of trustees or directors may seek to establish a regulation prohibiting smoking. This option is less favorable, as a court may determine the board never possessed the power to regulate the interior of a unit. Therefore, an association’s board should only consider this alternative if its governing documents provide the power to regulate the interior of units.

Finally, where an association possesses a nuisance restriction, it may seek to enforce the restriction to ban smoking which does in fact bother other residents. In this context, the association would be seeking to prohibit certain individuals from smoking because the second hand smoke bothers other residents. This action is a reactive option and cannot be used until a member complains about another member’s smoking habits. Whether the association can enforce such a rule will depend upon whether the smoke is deemed to constitute a nuisance. Nonetheless, this may be the best alternative and path of least resistance in dealing with a specific second hand smoke situation.

Individuals Have Additional Remedies

Community residents are not limited to the actions of an association and may seek their own legal remedies to prevent exposure to second hand smoke. Such remedy entails filing a lawsuit seeking an injunction preventing an individual from smoking in areas which will affect others through exposure to second hand smoke. The person filing the suit must actually be exposed to second hand smoke and cannot simply hypothecate that second hand smoke exposure may occur sometime in the future. In legal terms, this means that the plaintiff has standing and the case is ripe for adjudication.

The potential causes of action are too many to list. However, several of the more relevant theories are as follows: 1) the smoke is a public nuisance inhibiting the common law right to “fresh and pure air;” 2) the second hand smoke affects the member and thereby an association’s failure to address the problem is a violation of the Federal Fair Housing Act provisions prohibiting discrimination; 3) permitting second hand smoke constitutes negligence; and 4) the second hand smoke may also constitute harassment, trespass, constructive eviction, intentional infliction of emotional distress or battery. Although these theories are potential causes of action, each case is fact specific, and their application may vary. However, the monetary cost to file suit and prosecute an action may be prohibitive. Therefore, a member’s best course of action is to first seek a remedy through the community association. If the association is unable to resolve the problem, a lawsuit against the offender may be appropriate.

Accordingly, common interest communities and their residents have options to prevent exposure to second hand smoke. In light of the health risks created by second hand smoke, restricting or eliminating it is entirely justified. Association residents are more knowledgeable of the problems and are more likely to seek help to avoid exposure. Associations can play an important role in providing a healthier environment. Should an association or resident be uncertain as to the appropriate manner in which to eliminate exposure to second hand smoke, the advice of legal counsel should be sought.

Brian J. McIntyreis an associate in the General Litigation and Community Association Law Practice Groups.