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November/December 2018


FREE AND CLEAR

Secondhand smoke concerns have ignited efforts to completely ban smoking in conominums. In large part, the attempts are succeeding—even when doing so requires amending the documents.
By Laura Otto

​©2018 Community Associations Institute

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The constant smell of cigarette smoke was too much for Kathryn Hatfield to handle. 

“Living in a 55-year-old building meant our systems were not as current as new construction. I could frequently smell smoke through the air ducts," says Hatfield, an 18-year resident of the Hampshire, a 14-story condominium in Greensboro, N.C.

Hatfield, an attorney at Hatfield & Hatfield, was president of the Hampshire condominium association board when she learned that secondhand smoke can easily travel through air ducts, common areas, and the infrastructure to nonsmokers' units in multiunit buildings, especially in older condominiums like the Hampshire. Hatfield, along with other concerned residents, felt that the health risks associated with secondhand smoke were too much and decided it was time for a change.

IN THE U.S., TOBACCO USE remains the single largest preventable cause of death, according to a recent report from the Centers for Disease Control and Prevention (CDC). Cigarette smoking kills more than 480,000 Americans each year, with more than 41,000 of these deaths from secondhand smoke. Nonsmokers who are exposed to secondhand smoke inhale many of the same cancer-causing substances and poisons as smokers and also are at risk for developing emphysema, heart disease, and lung cancer.​

MAJORITY RULES

In August 2015, the Hampshire launched a massive campaign to eliminate smoking entirely in the high-rise, including all indoor and outdoor common areas and inside individual condominium units.

First, the board investigated whether installing equipment, filters, and unit barriers would help prevent smoke from seeping into units. However, the building's age—it was built in 1963 as luxury apartments and converted to condominiums in 1986— made those changes ineffective. The next step was to adopt a no-smoking amendment, yet the association's governing documents required a 75 percent majority to pass.

“North Carolina case law is clear that changes to common elements can be accomplished by the board alone through board policy, but restrictions on private lots or units in a condominium need to be accomplished by changing the declaration that all owners agree to abide by when they move into a community association," says Jim Slaughter, a North Carolina community association attorney and past president of CAI's College of Community Association Lawyers (CCAL).

It turned out that getting residents of the 106- unit condominium to just say no to smoking wasn't a problem for Hatfield. The smoking ban passed with 77 percent in favor of the amendment. “This vote speaks volumes to the dedication of our homeowners to a healthy environment, to the hard work and commitment of our association, and to the changing tide about smoking in general," says Hatfield.

The complete smoking ban went into effect in the fall of 2015 and applies to common areas and individual condominium units.

Unfortunately, some residents still smoke, and determining who the violators are is difficult. “We often do not know where the odor is coming from," says Hatfield. “The board sends one warning letter and, on the second violation, we set up a hearing for the alleged violator who may explain or deny the smoking. So far, we have routinely imposed a $100 fine on violators."

The ban has impacted renters the most, according to Hatfield. “With one or two exceptions, it is my belief that most of the smokers have sold their units or moved."

UP IN SMOKE

An estimated 37.8 million adults in the U.S. currently smoke cigarettes, according to the CDC. Those smokers are finding it more difficult to light up as smoking bans are on the rise in communities, workplaces, restaurants, and bars nationwide.

In New York City, all residential buildings with three or more units—rentals, cooperatives, and condominiums—are required to adopt a smoking policy and to put that policy in writing. Effective Aug. 28, the policy does not ban smoking outright but is designed to help boards state clearly where smoking is permitted or prohibited on the property.

Over the bridge in New Jersey, Gov. Phil Murphy recently signed into law a revision of the New Jersey Smoke-Free Air Act that prohibits smoking on public beaches and in public parks. The law, which goes into effect early next year, covers all local and state-owned beaches. Violators of the ban will be issued a $250 fine.

Nationally, a new rule went into effect this summer banning smoking in or near public housing facilities. The ban was implemented nearly two years after the Obama administration passed a law. Under the rule, the Department of Housing and Urban Development now prohibits cigarettes, cigars, and pipes in all public housing units and common areas, as well as any outdoor areas up to 25 feet from public housing and administrative office buildings. The ban does not apply to e-cigarettes, snuff, and chewing tobacco. Though some housing authorities have expressed doubt about enforcing the ban, it could save the government roughly $153 million a year in lower healthcare costs, fewer fires, and less costly maintenance, according to estimates from the CDC.​

PUSH BACK

Making the smoke-free move isn't always easy. There's a fundamental difference of opinions between nonsmokers who say secondhand smoke is destroying their quality of life and smokers who assert that smoking is a legal activity and see their homes as the last place they're allowed light up if they please.

When the Garfield Condominium, a nine-floor, 166-unit building in Washington, D.C., wanted to pass an amendment to its bylaws prohibiting smoking in units and common elements, a few residents decided to push back, asserting it's their right to smoke in their units and that the association cannot interfere with that right.

“Some residents felt that the board did not have the authority to restrict the behaviors of residents inside their own homes," says Lauren Hobbs, CMCA​, community manager of the Garfield.

Hobbs worked closely with the association's attorney to review appropriate measures and local D.C. law regarding how to institute a smoking bylaw amendment. Informational meetings were held by the board to get unit owner feedback and answer questions regarding smoking and secondhand smoke. Prior to the meeting, an informational letter and ballot were mailed out to all unit owners, explains Hobbs.

Owners were encouraged to bring their ballots with them to the meeting. The board also set up a committee to reach out to individual owners to answer any remaining questions and to encourage them to vote. The board continued to collect ballots until the amendment failed or passed by two-thirds majority.

Despite some disgruntled smokers, who have since moved out of the building, according to Hobbs, the amendment garnered enough support to pass in October 2016. To avoid any confusion, the board sent out a letter announcing the ban and its effective date, along with a copy of the bylaw. The board established a formal smoking enforcement policy drafted by its attorney that outlines steps the board will take to remedy any violations.

Those who undertake the effort to ban smoking don't always succeed. At the nearly 40-year-old Gallery Tower in St. Paul, Minn., it's still OK to smoke despite efforts to ban it— in units and on balconies. The Gallery Tower board voted to ban the habit in the summer of 2017, which would go into effect the following April. However, earlier this year, newly elected board members—who smoke—voted to rescind the ban before it took effect, citing it was a big overreach and questioning how the ban would be implemented and enforced.​

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SECONDHAND DANGERS

Pam Spears, manager of a 65-unit condominium in Nashville, Tenn., received daily complaints about cigarette smoke in the hallways, elevators, and service areas. To eliminate the strong smells, Spears purchased a deodorizer, which helped tremendously, but residents could still smell smoke when they would come and go from their units.

The board then investigated its options regarding secondhand smoke, turning to the Non-Smoker Protection Act, which the Tennessee state legislature adopted in 2007. The law prohibits smoking in all enclosed public places within the state.

According to Spears, the board enacted a rule stating that the building was a nonsmoking environment and smoking was prohibited in all common areas.

“We designated outdoor areas to allow smoking, such as the pool area, outdoor sitting area, and our Sky Terrace," says Spears, adding that the board could not enforce any rule banning residents from smoking in their units.

However, the board successfully implemented a rule that gave management the authority to tell residents who smoke to install a charcoal filtration system and provide proof of purchase. Residents also are instructed that they may need two or more filtration systems depending on the size of their unit, and the filters would need changing often to eliminate the smoke odor from their unit.

The steps to control secondhand smoke and keep the peace between smokers and nonsmokers have been fruitful. “The smokers in our building were very considerate of their neighbors and wanted to do whatever was necessary to keep the smoke odor from the common areas," she says.

Matt Drewes, president of the CAI Minnesota Chapter and an attorney with DeWitt Mackall Crounse & Moore, has seen plenty of associations explore smoking restrictions or successfully ban smoking on the premises. The move to do so is especially important when a homeowner has a health condition that is exacerbated or worsened by exposure to secondhand smoke, explains Drewes.

“The owner suffering from the exposure may wish to seek recourse against the owner creating the smoke and may also wish to have the association assist in finding ways to prevent the smoke from entering his or her unit," he adds.

When contemplating a complete smoking ban, it's important to ask whether a community association or condominium wishes to grandfather in existing smokers subject to conditions or ban smoking totally, explains Stephen Marcus, a partner at Marcus Errico Emmer & Brooks in Braintree, Mass.

“If the board wishes to grandfather smokers, they may want to have provisions relating to HEPA filters, smokeless ashtrays, and smoking only on balconies," says Marcus, a CCAL fellow. Additionally, “an engineer may be brought in to determine if the infiltration of smoke into other units may be stopped."​

CLEARING THE AIR

No-smoking amendments are typically rejected not because homeowners don't agree, but because the board has failed to properly prepare for the vote, explains Ken Jacobs, partner at Smith Buss & Jacobs in Yonkers, N.Y. “By not giving owners sufficient time to participate or by not providing sufficient information to address their concerns, smoking amendments often fail," he adds.

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When determining if a no-smoking amendment is the right decision, it's important to consider residents' complaints and the problems regarding secondhand smoke, the potential costs to the association if the building's HVAC system needs to be revamped, and the latest government and medical studies regarding secondhand smoke, notes Jacobs.

If your community association documents are silent on smoking, explains Marcus, a unit owner may be left with a remedy of a claim for “nuisance" against the neighbor and act against the board to stop the smoking.

“In cases of a unit owner fighting the fight with a neighbor, the courts have been split, normally not finding a 'nuisance' especially when the smoking occurs outside on a deck or balcony," he says. “The nonsmoking owner might have to retain an industrial hygienist who can test the nonsmoking unit for secondhand smoke."

Going forward, the trend toward banning smoking in community associations will likely continue. “Efforts at redirecting, controlling, or containing smoke have had mixed results and have often fallen short of making all parties happy, and they come at a certain expense that the owners involved may not be willing or equipped to pay," says Drewes.

In many cases, smokers feel they should not be told what they can or cannot do in the privacy of their own homes. However, “community associations are subject to a set of governing documents," says Drewes, adding in many ways the interests of the majority are going to take hold in how those documents may be changed over time.

It's important to understand that buying into a community association when the documents say one thing is permitted doesn't mean those documents will never change. “This may mean that the right to use one's home as we wish can be altered if the change is made in the proper manner and for a reason that is tied to the overall good of the community," Drewes says.​

Laura Otto is associate editor of Common Ground magazine.​

© 2018 Community Associations Institute. Further reproduction and distribution is prohibited without written consent. For reprints, go to www.caionline.org/reprints.​​

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