HOA bans smoking on condo balconies

[Little Fish]

Our condominium HOA passed a new regulation that prohibits smoking in all common and limited common areas. The rule specifically prohibits smoking on unit balconies.

I don't have a problem with the HOA making the building a smoke-free environment, but I do take issue with the HOA telling me that I can't smoke on my own balcony.

Q) Anyone out there have any idea of whether or not this type of rule is enforceable in Florida?

Q) Further, would owners who purchased units prior to the rule be grandfathered from such a rule?

Thoughts?

Little Fish

[scooterbug44]

My guess is that it is enforceable (HOA committees are usually full of lawyers) and that there would be no grandfathering - because it's a community wide rule.

I will venture a guess that the reason it is banned from balconies too is that while the smoker is restricted to the balcony, the smoke, butts, and complaints from neighbors are not.

Did they set up any "smoker friendly" locations?

[kurt]

I have no idea but find this interesting. Other private property owners can do it - hospitals, motels, stadiums, etc. I am not sure about an HOA.

What do they say is the penalty?

[Little Fish]

Kurt:

There is no stated penalty. The HOA has the right to impose fines and has a proceedure in place should fines be levied, but there is no system in place that spells out what the fines might be.

Scooter:

The HOA did not establish any approved smoking areas. This is now a smoke free building.

Little Fish

[kurt]

Kurt:

There is no stated penalty. The HOA has the right to impose fines and has a proceedure in place should fines be levied, but there is no system in place that spells out what the fines might be.

Just wondering if you get the choice between suspended for a day or the paddle.

[Little Fish]

Just wondering if you get the choice between suspended for a day or the paddle.

Oh... please let it be the paddle.

[DuneAHH]

Am I correct in assuming that this issue was put before the required quorum of the ownership and passed by the majority vote stipulated in the condo docs (a copy of which must be provided at time of purchase by Florida state law)?

The docs specific to the condo provide the basis for specific bylaw & rule changes, etc. etc..

However, if memory serves, should a precedent get set that a rule is not consistently enforced for some period of time... then it becomes sort of moot and unenforceable.

It's been 10 years since I served on a condo board... so things may have changed. If this is outdated info someone please chime in.

[Koa]

I know some condo HOAs which prohibit grilling on balconies, maybe to reduce risk of fire, but also to keep the people on the balcony upstairs to not get smoked out and greased out. I'm guessing that this smoking ban may be more related to the smoke going up rather than the butts going down, as many non-smokers really dislike cigarette and cigar smoke.

Is it enforceable? I think it would be difficult to prove who is doing what. The HOA can dictate many things, and you buy into that concept when you buy a condo.

[Mango]

Interesting topic. I've served on my Board for 7 years now and a Board can make the rules about signage and anything relative to safety without obtaining an HOA vote. Personally, I feel that prohibiting smoking in and on your property (balconies included if they are not maintained by the HOA) is a violation of someone's right to use and enjoyment of their property.

It's looking like there aren't any really precedent setting cases in FL yet pertaining to this matter. A blog by Becker and Poliakoff, who used to be our HOA's attorney:

With several states (including Florida) having recently banned smoking in public places, this issue has been the topic of much conversation among condominium directors. There is no appellate case decision in Florida to guide us here. However, this author believes that an association can, through an amendment to the Declaration of Condominium, prohibit smoking within the condominium common elements and the units. In fact, the Board could probably do it by adopting a rule which, in most cases, wouldn’t even require a membership vote.

The Florida Clean Indoor Air Act (“the Act”), contained within Chapter 386 of the Florida Statutes, provides a uniform state-wide code to keep public places and public areas reasonably free from tobacco smoke. The Act prohibits people from smoking, except in designated smoking areas contained within the common elements. However, association’s can never permit smoking in the common element hallways, corridors, lobbies, aisles, water fountain areas, restrooms, stairwells, entryways, or conference rooms. All other indoor “common areas” are also “no smoking”, unless the Board has specifically designated the area as a smoking area. Smoking may occur outdoors unless the Board has adopted a no smoking policy with respect to outdoor areas.
The law is not clearly developed as to whether Boards may prohibit unit owners or tenants from smoking inside the units. There is no Florida appellate case that interprets the Act to allow the prohibition of smoking inside a unit.

Here's an interesting read from Law.com
Battle over Smoking Catches Fire in FL

[Koa]

Without much thought about it, Mango, I would think similarly, that it is violation of your owner rights. However, if you think about all the other hoops some condos make owners jump through, there are many things which prohibit an owners rights, including the length of time you can rent your place and if you can rent to people who have a dog.

[Miss Kitty]

Gives new meaning to the puck balcony!

[Franny]

Gives new meaning to the puck balcony!

[PalmBeach]

Condo ownership is limited to the interior space. Balconies are restricted-use common area that is maintained and insured by the condo association.

It is not possible to smoke on a balcony without reducing the enjoyment of an adjacent owner that does not smoke. The non-smoker is forced to not use their own balcony. THAT is "a violation of someone's right to use and enjoyment of their property". I bet that there are other rules designed to keep occupants of one unit from disturbing occupants of other adjacent units.

[Little Fish]

Am I correct in assuming that this issue was put before the required quorum of the ownership and passed by the majority vote stipulated in the condo docs (a copy of which must be provided at time of purchase by Florida state law)?

The docs specific to the condo provide the basis for specific bylaw & rule changes, etc. etc..

However, if memory serves, should a precedent get set that a rule is not consistently enforced for some period of time... then it becomes sort of moot and unenforceable.

It's been 10 years since I served on a condo board... so things may have changed. If this is outdated info someone please chime in.

DuneAHH:

If memory serves, the original condo docs required a vote of 66% by the owners in order to change the rules. I don't know if it was ever put to a full vote as I didn't have any advance warning of an upcoming change, or discussion.

I told one of the BOD members I believed the new rule infringed on owners private property use rights and was displeased that the board passed the rule without alerting me in advance of any discussion. He stated that according to their attorney, legally all the Board had to do to notify owners of an upcoming meeting was to post a note at the lobby level.

I guess I need to come into town more frequently...

Little Fish

[Little Fish]

Mango:

Thanks for your post.

Although the maintenance of unit balconies are the sole obligation of the individual owner, balconies are considered limited common areas in our building. The Board's attorney has "suggested" the Association has the right to set policies for limited common areas; hence, the no-smoking rule.

I find this to be a very complex issue as I understand that some owners like to smoke on their balconies while others cannot stand second hand smoke that drifts onto their balcony. Both sets of owners have the right to enjoy their property. Who is right... I have no idea.

If I was on the Board, I'm not sure I'd be willing to take up this issue when the potential cost to an Association in litigation is high.

It's okay to grill on your deck, have dinner with your finest crystal and china on your deck, have pets on your deck, play your boombox on your deck... heck, it's probably okay to sunbathe nude on your deck... but if it comes to smoking a legal product on your deck...

your're going to get the paddle.


Little Fish

[Koa]

I guess you could always stink up the inside of your condo.

[Douglas the Intrepid]

It's believe its not legal to grill on any condo balcony as it is against fire code.

[Little Fish]

I guess you could always stink up the inside of your condo.

Koa:

Persnally, when I have a smoke it is always outside as I, like you, want to avoid the odor that clings to furniture etc. I rent my unit and my contract states that the rental is a non-smoking unit although I allow smoking on the balcony.

Invariably, should the Association decide to enforce this rule, smokers will continue to smoke but will move inside. This will happen with smoker-friendly and non-smoker friendly owners. Which is worse from a non-smoking owners perspective?

Little Fish

[30ashopper]

Kurt:

There is no stated penalty. The HOA has the right to impose fines and has a proceedure in place should fines be levied, but there is no system in place that spells out what the fines might be.

Scooter:

The HOA did not establish any approved smoking areas. This is now a smoke free building.

Little Fish

The fine policy will be clearly detailed in the rules and regs. Ask the HOA / management company for a copy.

[AndrewG]

Some folks have been dying to tell you what you can and can't do for a long time. Have fun with that.

[Beach Runner]

Gives new meaning to the puck balcony!

Miss K, you're pucked if your HOA adopts this policy. You can always walk outside and sit on a bench where the dog episode happened.

[John R]

Whichever way the chips fall with your HOA, there's nothing more pleasant than being outdoors and having someone's cigarette smoke blow in ones face or waft up from downstairs. The question most likely end up as; is the balcony considered part of the unit, or the common area?

[Geo]

I believe people should be able to do what they please on their property. But I know what it is like for myself and my kids to be affected by someone else's smoking.

Took my son fishing last week. A big charter out of Destin. There was an older gentleman who would smoke a cigarette about every half hour. We were all outside on the boat with the ocean spray and breeze. But yet it was still horrible. I couldn't help but think- wow, if this person only knew how much of a negative impact this was having on our experience I wonder if he would still smoke on the boat?

[Geo]

Smokers are being more and more ostricized-
relative to previous decades...

But if you remove the memory of times when one could smoke on planes or at the office and view the act as if you were an alien visiting,,,

It would seem strange for it to be okay that someone can set a plant on fire that was dipped in chemicals and let the smoke waft about for others to smell or inhale.

[30ashopper]

It all comes down to who owns the balcony. If the balconies are limited common areas, condo owners have to abide by the rules the association sets, as long as the hoa is within it's mandate. If on the other hand the owners own the balconies, it's a different situation.

We should be applying the same common sense approach to a lot of things, like weed, meth, coke, gambling, sex, etc.. If it's an individual decision, occurs on private property, and doesn't unwillingly effect someone else, it shouldn't be restricted by governing bodies.

[LuciferSam]

I think after having sex on the balcony a person should be able to light one up.

[Little Fish]

It all comes down to who owns the balcony. If the balconies are limited common areas, condo owners have to abide by the rules the association sets, as long as the hoa is within it's mandate. If on the other hand the owners own the balconies, it's a different situation.

We should be applying the same common sense approach to a lot of things, like weed, meth, coke, gambling, sex, etc.. If it's an individual decision, occurs on private property, and doesn't unwillingly effect someone else, it shouldn't be restricted by governing bodies.

I've had an opportunity to speak to an attorney regarding this issue and will update all when the issue is resolved.

Stay tuned.

Little Fish

[Lady D]

I think after having sex on the balcony a person should be able to light one up.