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March 10, 2007
May an Association Ban Smoking in a Person's Home?
Smoking has been proven hazardous to the health of the smoker. Second hand smoke has been proven hazardous to the health of those forced to inhale it. Questions that often arise these days in homeowner associations are: (1) May we ban smoking in the common areas? and/or (2) May we ban smoking in the units?
The answer is yes, in some localities under some conditions. This is California. One would think the seminal cases might happen here. But they have not, at least not to the best of my knowledge. However, they have happened.
In Boston, a jury found that heavy smoking were grounds for eviction of the tenants. In 2005, when this judgment came down, the news story by Ralph Ranalli and Jonathan Saltzman, of the Boston Globe reported:
"In a case that tobacco law specialists say is one of the first of its kind in the nation, a Boston Housing Court jury ruled that a South Boston couple could be evicted from their rented water-view loft for heavy smoking, even though smoking was allowed in their lease. The landlord who rented the Sleeper Street unit to Erin Carey and Ted Baar ordered them out within a week last November, after neighbors complained of the smoke odors filtering into their apartments.
Carey and Baar, who each smoke about a pack a day and run an information technology sales business out of the one-bedroom unit, fought the eviction, arguing in court that the converted warehouse's shoddy construction and aging ventilation system were to blame for the wayward odors.
Last Friday, a jury ruled in favor of the landlord and the eviction. Even though the landlord could have written a nonsmoking clause into the lease and didn't, the jury found that the couple's heavy smoking violated a more general clause banning ''any nuisance; any offensive noise, odor or fumes; or any hazard to health.' Although the verdict is not binding on other courts, tobacco law specialists said the decision is one of the nation's first to declare smoking a nuisance serious enough to become grounds for eviction."
In November of 2006, in Golden, Colorado, "The Denver Channel.com" reported: "A judge has upheld a homeowners association's order barring a couple from smoking in the town house they own.
Colleen and Rodger Sauve, both smokers, filed a lawsuit in March after their condominium association amended its bylaws to prohibit smoking.
'We argued that the HOA was not being reasonable in restricting smoking in our own unit, nowhere on the premises, not in the parking lot or on our patio,' Colleen Sauve said.
The Heritage Hills #1 Condominium Owners Association was responding to complaints from the Sauves' neighbors who said cigarette smoke was seeping into their units, representing a nuisance to others in the building.
In a Nov. 7 ruling, Jefferson County District Judge Lily Oeffler ruled the association can keep the couple from smoking in their own home.
Oeffler stated "smoke and/or smoke smell" is not contained to one area and that smoke smell 'constitutes a nuisance.' She noted that under condo declarations, nuisances are not allowed.
The couple now has to light up on the street in front of their condominium building."
This activity across the country, although not binding in any court in California, indicates a possible trend. And many, many, many Californians are sensitive to smoke. It was not that long ago that a bill was introduced in Sacramento that would have provided that allowing smoke to waft through walls could be actionable in the courts. The bill did not survive. But the idea of preventing smokers from being allowed to cause a nuisance that adversely affects others has not.
Posted by Beth Grimm at March 10, 2007 10:05 PM