A Smoking Gun Issue - Does the Association Have the Power to Prohibit Smoking?

Until a few years ago, the answer to this question was generally no.  While the Association could generally prevent smoking in the indoor common elements, the Association was generally powerless to attempt to prohibit smoking in outdoor common elements or within the units.

However, with the advent of laws prohibiting smoking within indoor public places in the past decade, and increases in “smoke-free” campuses, the law is slowly turning more favorable toward smoking prohibitions.  According to the American Lung Association, secondhand smoke causes over 41,000 deaths each year.  Because so many people are becoming sick who have not chosen to be smokers themselves, Association boards are taking a closer look at what they can do to promulgate the health, safety, and welfare of the Association residents. 

Many Associations have tried enforcing smoking policies under nuisance provisions in their Declarations.  However, courts have consistently found that this is not the type of “noxious or offensive” actively contemplated by these restrictions.

Whether something is considered a nuisance based on a condominium association covenant, restriction or rule, is a question of fact. 

In a jury case on the subject, the Court found that smoking on the outdoor patio that bothered the next-door neighbor was not a nuisance.  Zangrando v. Kuder, 2006-Ohio-1549.

Generally, Courts find that a unit owner, especially in connected condominium units, gives up a certain amount of freedom when he/she decides to purchase a condominium unit. So can the Association’s Board implement a rule by simple board vote prohibiting smoking throughout the complex?  Likely not.  Rules must be reasonable to be enforced.  Reasonableness is somewhat interpretive— one court may see a smoking ban as reasonable, and another court may not.  A prohibition of smoking within the common areas or rules about where smoking may take place are likely more reasonable than an outright ban of smoking throughout the Association. If a smoking ban is challenged, courts are much more likely to side with the Association 

when the rule is voted upon by the membership rather than a Board, especially when the rule is seen as discriminating against a class of people – in this case, smokers.  The Board could institute a rule, but it would be more likely to be scrutinized as potentially unreasonable.  As a side note, The Smoke Free Act in Ohio does not prevent smoking at private residences.

Another issue that has come up recently—now that Ohio allows medical marijuana, that means that we can’t prevent people from smoking it within the Association, right?  Fortunately for Associations, the new law, effective September 8, 2016, only allows a person to possess plant material, edibles, patches, oils and tinctures. 

It prohibits smoking the substance, so the Association should make strides to begin enforcement proceedings against any person who is smoking marijuana in their unit (which you can document with written complaints). Any noxious or foul odor coming from the unit is subject to enforcement action by the Association. 

And, as always, if any residents suspect illegal use of substances, they should call the police.

Accordingly, if your Association is considering a smoking ban on the entire Association property, we would recommend that your Association submit a vote to the membership to prohibit smoking, and allow existing unit owners to be grandfathered in, so that they have the right to smoke until the property transfers to a subsequent owner.  The percentage of voting power specified in your Declaration (usually 75%) is required to amend your governing documents.

In Ohio, smoking prohibitions have yet to be challenged in Court, so be aware that this is an evolving area of Association law. 

If you would like to discuss a possible amendment to your governing documents to limit or prohibit smoking, please contact our office.

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