For many of us, the cusp of a new year brings a time for reflection and resolution. New Year’s resolutions come in all shape and sizes. Maybe you want to resolve to eat healthier, save for retirement, take that dream vacation you’ve been dreaming of, or even adopt a new pet to name just a few. But, why stop there? Community associations can make New Year’s resolutions, too. The board’s adoption of New Years’ resolutions can be a great strategy to get things done. Maybe it’s time to amend and restate the governing documents, adopt new rules, become a 55 and over age restricted community, re-asphalt the roads, vote on installing windstorm protection for the entire condominium building and so much more. A New Year’s resolution is a plan for action (well, it can be anyway).
The New Year is a great time to resolve to stop smoking. Anyone who has quit smoking knows how hard it is to do. But, make no mistake about it, it can be done. There are no words that comfort a recent quitter going through nicotine withdrawal. Quitting smoking is more than just a decision… it’s a process, and the more support a smoker tying to quit can get, the better. Association’s can lend a hand in the process, too, by adopting no-smoking policies. An association can even consider amending its governing documents to prohibit smoking and become a smoke-free community.
The Florida Clean Indoor Air Act, section 386.204, Florida Statutes, already provides a smoking ban for all the indoor common elements such as hallways, entryways and conference rooms. However, smoking in the outside common elements would remain permissible, unless prohibited in the governing documents.
As to prohibiting smoking inside of the privately owned units, Florida has not yet developed substantial case law on the subject. However, the Florida Supreme Court’s decision in the oft cited Woodside case stands for the proposition that the will of the associations’ members, through adoption of new restrictions, is not only permissible, but is judicially supported, too. So long as that holds true, the only question remaining is whether existing smokers would have a claim for being “grand-fathered.” Clearly, the board should discuss all of the pros and cons of creating a smoke-free community with the association’s lawyer.
In a 2009, Florida Division of Arbitration case, Belleair Palms Terrace Association v. Smalenberger, where a unit owner was alleged to have removed extensive portions of the common element drywall in his unit which facilitated the passage of cigarette smoke into adjoining units, the unit owner was ordered to restore all drywall in his unit and to cease smoking in the unit during the required installation of the drywall.
While County Court cases do not provide precedential value, they can at least provide some limited guidance. In one such Broward County Court Case, Merrill v. Bosser, the court found that excessive smoke gave rise to a claim for trespass.
In Massachusetts, where a resident brought a claim against their neighbor due to the noxious smoke, the court found that the second hand smoke was considered a breach of the “covenant of quiet enjoyment.”
Interestingly, as far back as 2006, a Colorado court ruled in favor of a no smoking amendment to a declaration of condominium. The court found that the passage of the amendment to the Declaration of Covenants, Conditions and Restrictions was proper, reasonable, made in good faith and not arbitrary and capricious. The plaintiffs who challenged the no-smoking ban were not able to establish that the newly adopted no-smoking amendment violated public policy or otherwise abrogated a constitutional right.
Consider taking a few minutes at your next board meeting to adopt a few resolutions for your community. Then, tell all of the members, and make it happen. Above all, have a great 2014 and HAPPY NEW YEAR!!!!!