smoke free condo buildings

FrankM14 (Ohio)
Posts: 11

Posted:

Hi all,
Relatively new to the forum.

Some of the owners in my Condo Association would like to make our buildings non smoking. I'm wondering if any of you have done this and any advice you might have. The construction on our buildings is not the best and secondhand smoke seeps into other units causing an annoyance and health hazard for other residents.

Because of the secondhand smoke health issue apparently a restriction on smoking in units is legal.

Thanks in advance for your feedback.

AugustinD
Posts: 5,144

Posted:

Hi Frank, this issue comes up a lot here. It is the subject of nationwide condominium chatter. First, you would have to amend your CC&Rs. Check to see what percentage of owners is required to do an amendment. Typically it is 2/3rds or more. But even if the vote passes, there is no guarantee (at this time) it would hold up in court. Such a prohibition is controversial because usually, smoke-free buildings is not what members contracted for when they agreed to buy a unit. To suddenly change the rules such that a long-time smoker cannot enjoy the use of her or his home is something the courts might say is unfair. Granted secondhand smoke is not fair to non-smokers.

I think it would be worth your while to read Ohio-specific sites like:

http://www.odh.ohio.gov/sfmuh

https://www.nolo.com/legal-encyclopedia/dealing-secondhand-smoke-ohio-home.html

RoyalpitA
Posts: 195

Posted:

Quote:

Posted By FrankM14 on 10/18/2018 8:54 AM
Hi all,
Relatively new to the forum.

Some of the owners in my Condo Association would like to make our buildings non smoking. I'm wondering if any of you have done this and any advice you might have. The construction on our buildings is not the best and secondhand smoke seeps into other units causing an annoyance and health hazard for other residents.

Because of the secondhand smoke health issue apparently a restriction on smoking in units is legal.

Thanks in advance for your feedback.

Then your fire wall(s) are in dire need of repair.

What, pray tell, will stop fire and smoke from spreading ?

The problem is NOT the 'smokers' but the sub-standard non code compliant construction.

or

Your 'common' exhaust fan, if present, may need service and repair.

KerryL1 (California)
Posts: 14,550

Posted:

Smoke-free condos apparently are not unusual in CA, but as Augustin points out, your HOA would have to amend its CC&Rs.

We're a high rise and prohibit smoking in our common areas. We also have a clause in our CC&Rs that prevents noxious odors from any unit that bothers others as corroborated by staff or board members.

We recently called an owner to hearing because his tenant refused to stop smoking cigars on his balcony that constantly wafted to the balcony 15 feet away even though the two are separated by a 10' deep privacy wall.. We used that noxious odors portion of our nuisance clause.

Our HVAC systems includes no shared duct or venting so inside of units, smoke could not go to a neighbor's unit.

I haven't read the literature on the subject, but I don't him we'd have to grandfather existing smolders if we ban smoking all together.

I'm guessing the further south in Ohio Frank is, the more resistance he'd have re: banning smoking entirely.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Quote:

Posted By RoyalpitA on 10/18/2018 10:11 AM

Posted By FrankM14 on 10/18/2018 8:54 AM
Hi all,
Relatively new to the forum.

Some of the owners in my Condo Association would like to make our buildings non smoking. I'm wondering if any of you have done this and any advice you might have. The construction on our buildings is not the best and secondhand smoke seeps into other units causing an annoyance and health hazard for other residents.

Because of the secondhand smoke health issue apparently a restriction on smoking in units is legal.

Thanks in advance for your feedback.

Then your fire wall(s) are in dire need of repair.

What, pray tell, will stop fire and smoke from spreading ?

The problem is NOT the 'smokers' but the sub-standard non code compliant construction.

or

Your 'common' exhaust fan, if present, may need service and repair.

It is impossible to make construction completely air tight, code compliant or not - if you do, then you have issues with mold and poor indoor air quality. Secondhand smoke is going to get into places you don't want it, no matter how tight the building is constructed.

Assuming you can amend the CC&R's to ban smoking, you'll still have the problem of enforcement and possible legal wrangling afterwards. And for residents with serious health issues or allergies, anything less than 100% compliance with the restriction is not going to be good enough. The reality of attached housing is that you don't completely control of your indoor environment, no matter how well built and well maintained the building and how rigorously the restrictions are enforced. I also think that claiming a building is smoke free may create liability for the association, because it makes a promise that it can't really deliver on. As a board member, I'd prefer to opt for full disclosure to owners and residents; it's on them to choose housing situations that meet their needs.

FrankM14 (Ohio)
Posts: 11

Posted:

Thank you for your reply. The buildings were up to code when they were built but things have changed a lot since then. The firewalls are fine but there just aren't enough of them. Part of the problem is not enough insulation in the walls. Having said that smoke still come out into the hallways from under the doors or when doors are open through the electrical openings and gaps around the pipes etc.

FrankM14 (Ohio)
Posts: 11

Posted:

Cathy thanks. I think you are probably right on point with your comments. We are currently just exploring the possibility.

KerryL1 (California)
Posts: 14,550

Posted:

So, Frank, do you have a nuisance clause in your CC&Rs (Covenants, declaration)? Even if it doesn't include noxious odors, the can easily be defined as a nuisance.

We did have marijuana smoke leak under a residential doors into a hall for awhile and other residents complained bitterly, so a courtesy letter saying to stop or come to a hearing where there may have had a $100 fine put an end to it.

No doors to our halls may be propped open due to fire codes, at least in my city.

FrankM14 (Ohio)
Posts: 11

Posted:

Augustin. Thanks for the links and your response. They are very helpful. We require 2/3 vote but the majority of residents don't smoke so getting the numbers might not be a problem. However, infringing on someone's right inside their unit is a concern.

RoyalpitA
Posts: 195

Posted:

As I stated previously:

You have inferior construction.

ALL pipe penetrations between units / floors MUST be 'firestopped' as per code.

ALL doors to exterior of a unit (including into the hall) must be 2 hour fire and smoke rated. (I would suggest the addition of 'sweeps' to the doors which do not seal properly)

Bathroom exhaust fans MUST actually 'pull' negative pressure and ducting for same must have 'fire dampers' between units.

You have a multiple dwelling hi-rise which, in fact, was NOT built to acceptable fire code.

Nor to acceptable ventilation standards.

You apparently are living in a building suitable for the 'third world'.

I will give 50:1 odds that there is no fire suppression system installed and operational.

..... rant over

FrankM14 (Ohio)
Posts: 11

Posted:

Frank we do have a nuisance clause in our Declaration which I would think, because of health issue from secondhand smoke, might stand up in court.

We have also had issues with marijuana smoke but that was illegal at the time and was easily handled.

FrankM14 (Ohio)
Posts: 11

Posted:

Quote:

Posted By FrankM14 on 10/18/2018 1:58 PM
Frank we do have a nuisance clause in our Declaration which I would think, because of health issue from secondhand smoke, might stand up in court.

We have also had issues with marijuana smoke but that was illegal at the time and was easily handled.

Sorry I meant to address my comment to Kerry not myself.

FrankM14 (Ohio)
Posts: 11

Posted:

I just got the meaning behind RoyalpitA.

I guess we not only live in a third world building but are a little slow on the uptake as well :-)

RoyalpitA
Posts: 195

Posted:

The actual facts often 'sting'.

I have 45+ years in construction and management of same.

I also have lived in Mcmansions a/k/a fire death traps.

Smoke should NOT travel 'through the walls'. PERIOD END OF CASE

It is the blunt statement of some facts on my part that constitute royal pain in the asset.

FYI:

the Empire State Building built to 1930 NYC commercial code with 4 hour fire rating survived a B-17 strike on the (from memory) 40th floor with a 2000# bomb which actually detonated - fire self extinguished in 1 hour

the Twin Towers built to 1965 INTERNATIONAL code with 45 minute fire rating went down in, wait for it, 45 minutes (thankfully they 'pancaked' as designed) - however, they did meet code

RoyalpitA
Posts: 195

Posted:

ps. I worked the pile for 3 weeks before I 'bailed' because of the stress. I understand 'One World' was built with 4 hour fire rating and MUCH larger sprinkler reserve tanks. Hence its taper.

pps. But y'all are free to live in any type of construction y'all want so that y'all can have 'footage'.

RoyalpitA
Posts: 195

Posted:

..... The construction on our buildings is not the best and secondhand smoke seeps into other units causing an annoyance and health hazard for other residents. .....

restated more bluntly and factually:

.... smoke seeps between units causing a health and FIRE hazard for other residents ....

? not third world conditions ?

GeorgeS21 (Florida)
Posts: 3,808

Posted:

RoyalpitA,

I don't get it - why do you keep with the flippant nonsense ... be helpful!

KerryL1 (California)
Posts: 14,550

Posted:

Are you on the board Frank?

Look, since you have a nuisance clause IF someone's smoke is annoying another or other residents, enforce the rule. Do encourage them to first try to work it out neighbor-to-neighbor first. You do not have to worry about going to court on this. Forget about the health part for the moment.

As I say, we have and will enforce it until we (finally) rewrite our CC&Rs which probably will contain a clause where no soaking anywhere on our premises will be permitted.

Reminds me, we did have an incident where a guest went into an interior common are hallway to vape and set off the smoke alarm. The Fire Dept. came. The owner was fined the cost of the false alarm.

( I do agree with George this time--RPita went too far off topic and was no help.)

FrankM14 (Ohio)
Posts: 11

Posted:

Yes I am the board president and have been for quite a few years. Don't know why.

RoyalpitA
Posts: 195

Posted:

The topic is smoke migration 'bothering' others.

My point was that there should NOT BE smoke migration.

Rather than address the construction issue causing said migration the OP is asking whether changing the restrictions to ban smoking would solve the issue.

The OP has received EXPERT WITNESS grade construction advice.

Albeit unpleasant to hear, the OP is AWARE of said issue by his/her own admission.

Now the OP needs LEGAL counsel to address the CCR question.

IMO: no, the CCRs may NOT be changed to prohibit smoking within one's own unit

a rule may be enacted to prohibit smoking in or upon a common element incl. a limited use element such as a balcony

the existing 'nuisance clause' would cover any open door migration

There, I have 'helped'

JohnC46 (South Carolina)
Posts: 14,265

Posted:

I think many of the complainers are complaining on principal, not actual facts. I think those type would complain no matter the construction of the building once they knew someone was smoking in their own unit.

KerryL1 (California)
Posts: 14,550

Posted:

The incidents I wrote about were "facts," and were confirmed by management, JohnC.

Our board would not call anyone to a hearing or write them a "courtesy" letter without confirmation by a staffer or director.

So far as I recall, in CA Condo buildings and even apartment buildings can ban smoking everywhere on the premises including inside of residences.

In Frank's case, rather than spend $$ on changing the CC&Rs, I'd just enforce the nuisance clause once the odor is confirmed by the HOA.

Don't you also have a rule (via fire code) against doors being propped open to interior hallways, Frank?

KerryL1 (California)
Posts: 14,550

Posted:

Did a quick check online and see that there are numerous articles and opinions of this topic. One thing I leaned a is that CA cities ban smoking in condos and apartments. Another is that an HOA could make a rule, which is generally cheaper & easier than adding the CC&Rs. But rules are easier to fight against in court.

I also learned that in CA there's no need to grandfather in existing smokers.

RoyalpitA
Posts: 195

Posted:

OP is from Ohio.

RoyalpitA
Posts: 195

Posted:

Quote:

Posted By JohnC46 on 10/18/2018 4:10 PM
I think many of the complainers are complaining on principal, not actual facts. I think those type would complain no matter the construction of the building once they knew someone was smoking in their own unit.

How would they know unless the smoke (improperly) migrated through the wall(s) or ductwork ?

Instead of being properly exhausted to the roof via the bath (or kitchen) venting !

JeffT2 (Iowa)
Posts: 880

Posted:

Quote:

Posted By RoyalpitA on 10/18/2018 3:54 PM
IMO: no, the CCRs may NOT be changed to prohibit smoking within one's own unit

a rule may be enacted to prohibit smoking in or upon a common element incl. a limited use element such as a balcony

the existing 'nuisance clause' would cover any open door migration

There, I have 'helped'

Condos have control over the interiors of units, not just the common elements. For example, condo provisions can and often do ban hazardous and flammable materials, unsanitary conditions, odors, and anything that would raise the cost of insurance on the common elements. Things that can get out of a unit and bother others can be restricted. Even smoke.

RoyalpitA
Posts: 195

Posted:

CAVEAT EMPTOR

else

SIG HEIL

to the RETROACTIVE restriction

imposed by the mere will of the majority

who decided to change a contract

albeit the contract permits such change w/o unanimous consent

SHEEZ, what a mess

FrankM14 (Ohio)
Posts: 11

Posted:

Ohio's Condominium statute does give the board power to adopt, enact and enforce rules and regulations governing conduct and activities on the condominium property within and around individual units when such conduct or activity affects or has the power to affect common areas, other units or other unit owners.

That along with the nuisance clause should be enough to ban smoking, but my main question was whether anyone had banned smoking and if there were any words of wisdom they could pass along

RoyalpitA
Posts: 195

Posted:

FrankM,

You have posted the following on the internet for the world to view:

..... The construction on our buildings is not the best and secondhand smoke seeps into other units causing an annoyance and health hazard for other residents. .....

IMO: prima fascie of the HOA's knowledge of 'culpability' in the issue - DROP THE ISSUE

AugustinD
Posts: 5,144

Posted:

Here is a discussion of specific condominiums in Illinois, New York and Minnesota that successfully imposed smoking bans. You could also do a little research to find out how to contact the condos. Then see if any board members or the manager will talk with you.

https://liebermanmanagement.com/no-smoking-please/

https://www.6sqft.com/smoking-ban-inside-co-op-and-condo-units-picks-up-steam-in-nyc-buildings/

https://www.lplegal.com/content/can-condominium-association-ban-smoking-individual-unit

https://altitude.law/resources/article/one-court-has-said-associations-can-bar-smoking-owners-units-will-others-follow/

FrankM14 (Ohio)
Posts: 11

Posted:

Royal Pain'

Culpability goes both ways on this issue. Talking about it won't make much difference.

FrankM14 (Ohio)
Posts: 11

Posted:

Augustin,
Thanks for the links and the helpful suggestion.

LetA (Nevada)
Posts: 2,679

Posted:

Quote:

Posted By CathyA3 on 10/18/2018 12:40 PM

Posted By RoyalpitA on 10/18/2018 10:11 AM

Posted By FrankM14 on 10/18/2018 8:54 AM
Hi all,
Relatively new to the forum.

Some of the owners in my Condo Association would like to make our buildings non smoking. I'm wondering if any of you have done this and any advice you might have. The construction on our buildings is not the best and secondhand smoke seeps into other units causing an annoyance and health hazard for other residents.

Because of the secondhand smoke health issue apparently a restriction on smoking in units is legal.

Thanks in advance for your feedback.

Then your fire wall(s) are in dire need of repair.

What, pray tell, will stop fire and smoke from spreading ?

The problem is NOT the 'smokers' but the sub-standard non code compliant construction.

or

Your 'common' exhaust fan, if present, may need service and repair.

It is impossible to make construction completely air tight, code compliant or not - if you do, then you have issues with mold and poor indoor air quality. Secondhand smoke is going to get into places you don't want it, no matter how tight the building is constructed.

Assuming you can amend the CC&R's to ban smoking, you'll still have the problem of enforcement and possible legal wrangling afterwards. And for residents with serious health issues or allergies, anything less than 100% compliance with the restriction is not going to be good enough. The reality of attached housing is that you don't completely control of your indoor environment, no matter how well built and well maintained the building and how rigorously the restrictions are enforced. I also think that claiming a building is smoke free may create liability for the association, because it makes a promise that it can't really deliver on. As a board member, I'd prefer to opt for full disclosure to owners and residents; it's on them to choose housing situations that meet their needs.

You just had nasty fire in Olmsted Falls, Ohio because of $hitty construction. Looking at the aftermath, the interior walls on the first and second floor did their job because there were firewalls between the units. However there were no firewalls in the attic. The fire jumped from the ignition point, and rapidly spread. Now over 50 units are a total loss when just a few hundred dollars per unit could have saved that building from being a total loss.

RoyalpitA
Posts: 195

Posted:

Quote:

Posted By FrankM14 on 10/19/2018 7:39 AM
Royal Pain'

Culpability goes both ways on this issue. Talking about it won't make much difference.

Culpability on the part of the smoker: second hand cigarette smoke.

Culpability on the part of the HOA : life safety issues resulting from KNOWN faulty construction.

Said KNOWN faults now published to the www.