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AaronJ (California)
Posts: 48
Posted:
Hi everyone, just wanted your opinion on an issue that has come up in our association. About a year ago the board adopted a no smoking ordinance which prohibits smoking in common areas. The board has never enforced this ordinance on patios, which are consider exclusive use common area in the CC&Rs. A resident now wants this rule enforced on her downstairs neighbor since the smoke is coming in her window (only first floor units have patios). The board has taken a position of "we don't say you can, but we also don't say you can't". Has anyone had to deal with this issue? Does the board have a right to ban smoking on patios (exclusive use common area)?
AaronJ (California)
Posts: 48
Posted:
Excellent! Thanks!
TimB4 (Tennessee)
Posts: 21,059
Posted:
Here is an interesting article about a court case in Orange County CA:

Condo owners win secondhand smoke case Deals with a member winning a case against their Association for not stopping second hand smoke.
AaronJ (California)
Posts: 48
Posted:
What a grey area issue! It seems like, if you tell a tenant they cannot smoke on the patio they will sue and association and win. If you say they can, the neighbors will sue the association and win! Our ban states "smoking is prohibited in common areas". Although, I'm not a smoker, I think an resident should be allowed to smoke in their private patio, even though its considered "exclusive use common area."
JanetB2 (Colorado)
Posts: 4,219
Posted:
Hi Aaron:

Potentially your HOA could have an issue with the language in your documents. You stated:

“About a year ago the board adopted a no smoking ordinance which prohibits smoking in common areas. It did not include as you have noted “exclusive use common areas”.

HOA’s are becoming a drain on society and our court system. Most citizens initially do not have an issue with HOA’s and what they “initially” agreed to when they purchased. The issue is becoming “changes” made to documents. Documents should be very difficult to change vs. easily changed. If an individual does not like what they initially agreed to when they purchased … then too bad. You should have purchased in an association that had more rules you like.

People should not be expected to spend many hundreds of thousands of dollars on property with certain “expectations” and then later have the rug pulled out from under them. A prime example is someone who has pets and searches for a condo that allows pets should not then a short time later be confronted with any option of choosing whether to give up their pet vs. moving. Does anyone else not see this absolute “stupid” path our country is going down with this type of garbage?
CyrstalB (Maryland)
Posts: 457
Posted:
Quote:
Posted By JanetB2 on 01/28/2015 2:35 AM
Hi Aaron:
Does anyone else not see this absolute “stupid” path our country is going down with this type of garbage?

Yes, we are on a very bad path. Americans are becoming narcissistic more and more everyday. It's not about what's best for the community or the country, it's what's best with me. The govt. shutdown is a classic example of how it is happening. Then allow all forms of media to further the manipulation.

Look at all the wrong doing in the NFL, the government, the politicians...we just continue to look the other way, we still tune in to the games, we still vote on party lines even when we can't stand the candidate and we don't go to DC to protest. We just get online and vent our frustrations and just piss other people off. It's easier.

And it all starts in kindergarten and propagates through high school. Every school year comes with a fundraiser doesn't it? And what happens? The child brings it home and mommy and daddy take it to work, and do all this work to raise money. The child doesn't lift a finger to earn it, but they get the reward. Think about it, this school tradition has taught our children that they are entitled to everything without doing anything for it.

Getting off soapbox now...

JanetB2 (Colorado)
Posts: 4,219
Posted:
Cyrstal … so true LOL … and so sad.
JonD1
Posts: 2,350
Posted:
Quote:
Posted By CyrstalB on 01/28/2015 4:10 AM
Posted By JanetB2 on 01/28/2015 2:35 AM
Hi Aaron:
Does anyone else not see this absolute “stupid” path our country is going down with this type of garbage?


Yes, we are on a very bad path. Americans are becoming narcissistic more and more everyday. It's not about what's best for the community or the country, it's what's best with me. The govt. shutdown is a classic example of how it is happening. Then allow all forms of media to further the manipulation.

Look at all the wrong doing in the NFL, the government, the politicians...we just continue to look the other way, we still tune in to the games, we still vote on party lines even when we can't stand the candidate and we don't go to DC to protest. We just get online and vent our frustrations and just piss other people off. It's easier.

And it all starts in kindergarten and propagates through high school. Every school year comes with a fundraiser doesn't it? And what happens? The child brings it home and mommy and daddy take it to work, and do all this work to raise money. The child doesn't lift a finger to earn it, but they get the reward. Think about it, this school tradition has taught our children that they are entitled to everything without doing anything for it.

Getting off soapbox now...


While I believe the changing of documents and updating them is part of the necessary process and should not be seen as the root cause for the downward spiral of our society I do agree with the premise we are all in deep doo doo.

As to the bigger picture it would be my view our system is broken beyond repair. Our government, legal system and society have been in free fall for years.
Voting on party lines because you don't have the brains to make your own determination is BAD. However the reality is BOTH parties have sold you out long ago. No one in Washington ever considers what is best for America and the AMERICAN people. But we all sit by and allow it.

Our legal system is bought and paid for at every level. Deals are made and justice is sold. Lady Justice is in fact no longer blind now she waits with her hand out for payment!

And our society and the people who make it up are all in a coma as to how their lives are going down the drain preoccupied by American Idol, X-Pox, or some athletic completion resembling the gladiators. To provide entertainment for the masses. While they are shafted.

Our education system is broken serving now only as a daycare holding center for the workers. Teachers fail to provide the minimum education needed to prepare young people for a productive, useful, life. And how about motivation, the concept of hard work, the concept of contributing in someway during your life? Nowhere to be found.

And as some who come to sites like this and find fault with their board or MC the American people find blame and make enemies with everyone else with the exception of those truly responsible. THEMSELVES.

For years I was worried about us becoming a third world country. We were sold the fantasy we would lift everyone around the world up to OUR standard of living and success. Truth is we have been dragged down to theirs. We are broke, overextended, and led by a group of ignorant, incompetent fools.
And the American people have allowed it!

This is not the country I used to believe in any longer. And being blind to reality does not make it so......

TimB4 (Tennessee)
Posts: 21,059
Posted:
Quote:
Posted By CyrstalB on 01/28/2015 4:10 AM

The child brings it home and mommy and daddy take it to work, and do all this work to raise money. The child doesn't lift a finger to earn it, but they get the reward. Think about it, this school tradition has taught our children that they are entitled to everything without doing anything for it.

That school tradition only teaches that if the parents do as you say.

Unfortunately, many parents take it to work because they don't want to take the time to supervise the child while they go door to door to raise the money themselves.

Personally, I don't agree with those type of fundraisers because the school gets very little of the funds raised. Similar to girl scout cookies or boy scout popcorn, the actual troop gets very little of the funds raised.
Keep in mind, I'm not saying to not support these activities. I'm just saying that you may want to donate a little directly to the troop or school group directly.
BonnieG1 (Nebraska)
Posts: 1,186
Posted:
Quote:
Posted By TimB4 on 01/27/2015 8:02 PM
Here is an interesting article about a court case in Orange County CA:

Condo owners win secondhand smoke case Deals with a member winning a case against their Association for not stopping second hand smoke.

I just want to save this for future reference.
KerryL1 (California)
Posts: 14,550
Posted:
I hope we haven't lost you, Aaron! Are you on the Board? The Board cannot now ban smoking on exclusion use common areas unless it makes a rule using proper procedure in CA. It cannot enforce the common area ban on exclusive use areas.

Your governing documents, probably your CC&Rs have a "nuisance" clause which states that if something a neighbor does interferers with the quiet enjoyment of one's home that neighbor has to stop. Could be noise (most common here), flashing lights, marijuana or cigarette smoke.

We recently resolved your exact problem in our high rise when two guys smoked on their balcony and the smoke went into the open windows of the condo above them. that couple complained to the men below. One of them went outside the premises to smoke but the other continued to smoke occasionally on his balcony. We finally called the smokers to hearing because of their violation of the nuisance clause. The smoke odor was confined by our security officer.

The nicer man promised he'd try to get his housemate to ENTIRELY stop smoking on the balcony. things got better but then the guys had a party & lots smoked on the balcony. We ended up having to hire our HOA attorney and go to ADR as the bothered folks threatened to sue because of the nuisance and accompanying perils to their health. Expensive, but both men halted smoking on their balcony.

We too have rules against smoking in our interior & all exterior common areas. So these men must take an elevator down several floors and walk out the lobby to the street to smoke.

But with your smoker on the found floor, surely it wouldn't too difficult for him to go to the street?? So, use your nuisance clause. But, first, se if you can persuade him to smoke standing upwind, or plug in a little fan to blow his smoke in a different direction. In other words try to show him you care about him and want to solve this issue by working together. If none of that works, like I advised earlier, call him to a hearing for breaking the nuisance rule.

KerryL1 (California)
Posts: 14,550
Posted:
sorry about my typos!!

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