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.