Any experience with smoking restrictions?

I'm the president of our 412 unit HOA in San Jose, CA. The city already passed an ordinance banning smoking from common areas of HOAs, mobile home parks, etc., even including the public sidewalks surrounding such developments. Several cities near us have passed outright bans that prohibit in-unit smoking. BTW, all such bans are for tobacco products only; marijuana is never subject to these bans since we are a medical marijuana state.

But that's not enough for one young vocal couple who unfortunately purchased a unit above some heavy-smoking partying types. Now that couple is trying to muster support for a TOTAL smoking ban of all smoking of anything throughout the property. Yes, even in units, as they claim that second hand smoke even wafting through air vent or in and out of windows is enough the threaten the life of everyone in the complex. They're pushing for a formal amendment to the CC&R's, which if passed would be binding on all units immediately, of course. Problem is, it would obligate the board to enforce the new provision as well!

So my question(s) are:
Do any board members here have direct experience with smoking restrictions?
If so, what kind of enforcement worked, or didn't?
Did you experience legal challenges?
Any other thoughts on your experiences?

Clearly I'm more looking for direct experiences rather than opinions or debate on smoking. I just want to hear from others what we might be up against if something like this were to go down.

Thanks,
Phil

Phil,

To ban smoking everywhere, including within the individual units or on balconies, you may need to amend your governing documents.

Here is one case law from Colorado about the issue (but CO case law may provide zero support in CA): Sauve v HERITAGE HILLS

Here are some other resources:

SMOKING BAN IN HOAs – A New Law Is Introduced in California

AB-746 Secondhand smoke is the bill spoken of in the above article. It's not law yet but it also hasn't died.

How to Make a Condo Complex Smoke-free a 2008 article from The Technical Assistance Legal Center, a project of Public Health Law & Policy and the Public Health Institute.

Smoking Archives Links to various articles on the subject, provided by the Community Association Network (a sponsor of this site).

Btw, Phil, tho' we live elsewhere in CA now, in 03-'04, my husband & I leased in downtown San Jose in the 104-unit Paseo Villas on San Fernando between 3rd & 4th.

Cheaper and easier? Yes. But a CC&R's change is a decide voice of the membership, not a vote of the directors. When the directors vote on something, people want to challenge the directors (which is fine). But when they realize that 67% of their neighbors have voted a modification of the CC&Rs, well, that presents the opposition with an entirely different political landscape. They realize it's not just them vs. five directors, but rather them vs. a wide majority of the complex. It's like when Congress passes a law versus when the states vote to amend the U.S. Constitution; though both are binding, one is much weightier than others. Personally, I think something this sweeping should only happen when *that* many owner feels it's important enough to amend the governing documents, but that's just me. I like the "voice of the people" type of governance, rather than oligarchy. Example: When it came time to purchase earthquake insurance, the matter was very controversial due to the big impact on monthly dues. The Board put it up to vote and the Board took no heat because, well, the people have spoken. I think the same approach is wise for such a sweeping restriction (i.e., whole-property ban).


We, too, have similar nuisance provisions, and I believe that's enough to handle the occasional situation. That's why I think such restrictions are using the proverbial sledgehammer to swat a fly. Oh, and the partiers take the matter about as seriously as you can expect a bunch of partiers to take things ;-) They also point out that there's no explicit rule against it. But as is par for the course in today's politics, the victim in one situation demands a *law* be made to forever bind everyone else.

Do you find yourself having to run around enforcing all the time? I mean, I do NOT want a case where every time someone see someone going for a walk with cigarette that we have members whipping out cell phone to film people and expecting us to track down and drop the hammer on the offender. Do you handle smoking violations on a complaint only basis?

Phil

Oh, I completely agree with you, Phil, that the homeowners' voices should be heard. I was just curious about whether a rule change could fly. I'm otherwise pretty knowledgeable about such things in CA.

We sent out a questionnaire too about 'quake insurance in late '11. Not a great return rate (n=33), but the vast majority didn't want it so we don't have it (only one high rise in our area does and it's required by their CC&Rs.) We'll probably be redecorating our two lobbies and at least two of us on our 7-member board are insisting on owner feedback. Sad to say, we have a couple of other directors who are indeed very oligarchical in their approaches.

After an initial "courtesy letter" that did no good, we fined the one set of smokers for noxious fumes bothering their neighbors, which really did reduce the behavior a lot. But the complainer is a difficult person. She's new here, has served on Boards in other CA HOAs and thinks we directors are idiots.

When we banned smoking in the exterior common areas, we only had one or two incidents early on at the pool area by clueless residents, but none since. We only in any kind of case investigate if there are complaints and require collaboration from a 3rd party, e.g., access control officers or management. We directors don't go out looking for violations.

We don't have much exterior common area that would lend itself to be a place where someone would want to smoke.

The smokers smoke on their balcony, which is exclusive use common area. We said they must stop given the noxious odor prohibition in our CC&Rs.

We did not try to ban them from smoking in their unit (but I'm pretty sure they don't). But if they or anyone causes noxious odors to emanate from their unit--let's say cooking a lot of cabbage every night or causing some other unpleasant odor like glue odors for a hobby, that the complainer could prove, we'd probably ask the odor causers to stop or we'd suggest a solution. Has NEVER happened, though, in the 13 years since these buildings opened.

WE have during that period had people complain (maybe 2-3 times in different settings) about marijuana odors in our common area hallways. The source was unknown. Management put notes under the doors of everyone in the hallway (5 units) asking politely for cooperation and the odors stopped.

Problem is, no court or law anywhere in the U.S. (certainly that I've ever heard of) has ever recognized or defined any such "right." Trust me, I know, as I enjoy an occasional fine cigar myself. I'm not anti-smoking crusader, but even I can't fall back on a "right" that does not exist in any ordinance or legal precedent.



Honestly, it would likely never see a court. The whole point of an HOA is that the Board has the right to make such rules; any attorney knowledgeable in HOA law (few are, BTW) will confirm that.

In eight years overseeing our complex as a Board member, perhaps the most common misconception is that we "own our units." Yes, but also no. You own the air in your unit, but you are tennants in common with every other owner in the complex. It's closer to owning an apartment than owning a home, in the traditional sense. In a home ownership scenario, yes, you can do almost anything you want, and so can your neighbors unfortunately. But in an HOA, you have to follow the rules, and so do your neighbors. If run well, this works out well. If the HOA is poorly run, this can be hell.

The other misconception is that people wrongly assume that the rules in place at the time of their purchase are rules by which they are forever bound. Again, untrue. The rules can and do change, via the democratic process of electing directors, as well as legislative change by government agencies.


Although I'm going to give a California-based answer, the exclusive use common area construct is very common: Exclusive Use Common Area (Davis-Stirling.com).

Phil,

We can discuss the issue all week. Bottom line is going to be will your membership support such an issue and, if they do, is your Association ready to enforce it (which may mean a court battle)?

If the answer to either of those questions is no, then the issue is not worth pursuing.

If you believe that the answer to both of those questions is yes, then I would recommend you contact the Association attorney and hammer out the language needed to amend the CC&Rs.

I have one main issue with Phil's reply. I believe he puts to much stock in the BOD's Rules having more legal weight then they do. Be very careful. This is one area that many BOD's have gotten in trouble with.