Is it Smoky in Here? What associations can do to address smoking in common areas and inside units.

By Rhonda R. Adato, Esq.
(As published in The Law Journal by CACM, Summer 2020)

Associations are often faced with the question of how to deal with smokers and the secondhand smoke they create. If secondhand smoke drifts from a residence or common area into a neighbor’s home, is that a nuisance? Or do residents generally have a right to enjoy a cigarette in peace? How can associations deal with this issue in a fair, even-handed way, and what legal tools do they have at their disposal?

First, the facts. According to the Center for Disease Control’s (“CDC”) website, cigarette smoking is the leading cause of preventable disease and death in the United States, accounting for more than 480,000 deaths every year. In 2018, nearly 14 of every 100 U.S. adults, aged 18 years or older, smoked cigarettes. However, cigarette smoking has significantly declined in recent years: smoking is down from 20.9% of American adults in 2005 to 13.7% in 2018.

Statistics also suggest that cigarette smoking is generational: current cigarette smoking is lowest among those aged 18 to 24 years old, at 8.4%.

So what does this mean for associations? Smoking rates are declining in the U.S. Research conducted in recent years has also brought the harmful effects of tobacco smoke to light, and local, state and federal governments have made a concerted effort to inform the public of these harmful effects. However, smokers are still out there. As a result, non-smokers appear to be increasingly less tolerant of smokers because they are more aware than ever of the harmful effects of secondhand tobacco smoke. Non-smoking residents are now demanding that association boards take action.

Is an association obligated to respond? As a general matter, associations are required to enforce nuisance provisions set forth in their CC&Rs. Secondhand tobacco smoke traveling into a residence can be reasonably interpreted to be a nuisance. Associations should enforce their CC&Rs, as appropriate, against owners when secondhand smoke from their residence constitutes a nuisance to other residents.

An association can face steep penalties for failing to enforce its CC&Rs. By way of example, in Chauncey v. Bella Palermo Homeowners Association et al, (2013) Orange County Superior Court Case No. 30-2011-00461681, the defendant association’s CC&Rs included a standard nuisance provision. Plaintiff homeowners complained to the association about their neighbors’ incessant smoking, which caused secondhand smoke to constantly enter their unit and aggravated their son’s asthma. Plaintiffs filed suit against both the neighbors and the association, alleging in part that the association failed to enforce the CC&Rs nuisance provision. The jury found that the association breached its CC&Rs. Plaintiffs were awarded damages and the association was required to pay plaintiffs’ attorneys’ fees.

There are challenges, however, associated with enforcing a nuisance provision. What is or is not a nuisance is a subjective standard. After all, what is a nuisance to one person may not be a nuisance to another. Further, it may be difficult for an association to determine if smoke is really transferring, or where the smoke is coming from. For that reason, an outright ban on smoking may be easier to administer, since it is an objective standard.

But do associations have authority to enact an outright ban against smoking tobacco in the community? And will a court uphold such a ban as enforceable? Unfortunately, we are not aware of a published California case regarding enacting a total smoking ban. However, in Birke v. Oakwood Worldwide et al. (2009) 169 Cal.App.4th 1540, a residential apartment complex banned smoking in all indoor common areas and indoor units, but permitted smoking in all outdoor common areas. The plaintiff, a resident with asthma, sued the apartment complex, alleging that the failure to abate the tobacco smoke in the outdoor common areas was a nuisance. The trial court granted the apartment complex’s demurrer to plaintiff’s first amended complaint without leave to amend. Plaintiff appealed. The appellate court ruled that plaintiff alleged a valid nuisance claim. Birke is helpful for California associations who wish to prohibit smoking. It underlines the concept that landlords may have an affirmative obligation to mitigate/address secondhand smoke as part of their existing “duty to take reasonable steps to maintain its premises in a reasonably safe condition.” Community associations are not landlords per se, but California courts have treated them like landlords in cases such as Frances T. v. Village Green Owners Assn. (1986) 42 Cal. 3d 490.

Case law from other states is also helpful, although not controlling in California. In the Colorado case Christiansen v. Heritage Hills 1 Condo. Owners Ass’n, Case No. 06CV1256 (Colo. Dist. Ct. Nov. 7, 2006), the defendant association amended its CC&Rs to ban smoking within the boundaries of the project. The court evaluated the ban under the standard of whether the association’s actions were reasonable, made in good faith, and not arbitrary or capricious (which is very similar to the California business judgment rule standard). The court found that the structure of the association’s building allowed smoke to migrate, and that residents had tried other means of mitigating the smell. The court also noted that the smoking ban was reasonably investigated and passed by 3 out

of 4 owners after trying other options to solve the issue. The court further stated that the Colorado legislature had recently passed bills regulating secondhand smoke, and that citizens do not have a fundamental right to smoke. As such, the ban neither violated public policy nor infringed on any of the owners’ fundamental rights. The court additionally held that the plaintiff smoker’s actions negatively affected the remainder of the community. Hopefully, a California court ruling on a community-wide smoking ban would apply similar reasoning as in Christiansen.

So what options does an association have to address smoking? As stated above, an association should enforce any nuisance provision set forth in its CC&Rs. We also believe associations are on firm ground to ban smoking in common areas. Associations typically have the right to control their common areas.

An association’s governing documents may additionally grant it authority to take action in the interest of protecting the health and safety of residents. The tide of public opinion is also turning against tobacco, meaning fewer homeowners may challenge such a ban.

Note that a community-wide ban on smoking is riskier than just banning smoking in common areas. While an association might be heralded for being health conscious and innovative, it also risks being a test case in the California courts regarding the enforce-ability of such a ban. However, some associations may be willing to take that risk. Associations should keep in mind that banning smoking in the entire community should most likely be done via a CC&Rs amendment, rather than an operating rule change. Adopting a ban within residences via an operating rule change might result in a challenge from a homeowner on the grounds that the rule is unreasonable and exceeds the board’s authority. Associations can also mitigate the risk of a homeowner challenge by implementing a grandfathering provision. That is, by drafting a community-wide ban to only apply to members who buy their homes in the community after the CC&Rs amendment has been recorded.

That way, all new members will be on record notice of the ban, and existing owners will be less likely to raise a challenge. However, a grandfathering provision will not resolve any nuisance claims resulting from any smoke transmission between residences, and might even make such claims more likely since all new owners will presumably be non-smokers.

In sum, associations should tread carefully and consult their legal counsel no matter which course of action they choose. Tobacco smoking may also decrease with time since younger people tend to smoke less, statistically. However, associations may face a new set of challenges in coming years. A November 6, 2019 NPR article reported that the proportion of high school students vaping nicotine has grown to 1 in 4. Young people have moved on to a newer, hipper trend: vaping and e-cigarettes. There is much less research regarding the harmful effects of these devices than traditional tobacco cigarettes, including their secondhand smoke effects, and the legislature has been slow to address the trend. Community associations’ next challenge might be regulating the negative effects of these devices rather than traditional tobacco cigarettes.

About the Author
Rhonda R. Adato is an Associate attorney at the law firm of Epsten, APC, where she handles transactional matters. She is based in Epsten’s San Diego office and joined the firm in August, 2018.