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Can smoking at condo complex be banned?

February 4, 2011
By SYLVIA HELDRETH, Real Estate Law

Q: There is no question that cigarette smoking and secondary smoke can be harmful to a person's health. Florida has laws about smoking in public places and there are common areas on our condominium property where people can't smoke. The problem is that I live above a smoker and he's like a chimney. He smokes all day and the smoke rises to my lanai and sometimes drifts into my unit. Can anything be done? I've spoken to him about this but he says he has a right to smoke in his unit.

A: Some condominium associations have implemented smoking bans both on common elements and in a few cases, inside of the units themselves.

Florida Statute 386.204, the Florida Clean Indoor Air Act, is a uniform statewide code that bans the smoking of all tobacco products in enclosed, indoor "work places." This means that at indoor meetings of the board, committee meetings and meetings of the membership, smoking would be prohibited because work is being performed.

Maintenance or cleaning of an enclosed common element is also "work" so no smoking is permitted there. The statute also specifically states that smoking is prohibited in specified condominium common elements including hallways, corridors, aisles, water fountain areas, restrooms, stairwells, entryways and conference rooms. The statute does not apply to outdoor common elements. The board of directors, however, usually has rule-making authority over the common elements and may be able to adopt a rule banning smoking in outdoor common elements as well.

Smoking is not illegal, per se, making banning smoking inside of units a much more controversial topic. Some associations have accomplished this with an amendment to their declaration of condominium. If you and perhaps other residents are considering such an amendment, there are three ways it could be put up for a membership vote.

The board could voluntarily initiate the action. Or, a petition could be circulated by unit owners to call a meeting to consider the issue.Twenty percent of the unit owners would have to sign the petition. Your board would have to consider the unit owners' request that a smoking ban be considered, but the board is not obligated to move the issue forward. Or, if your declaration of condominium contains a petition process for unit owners to propose an amendment to the declaration of condominium on their own accord, the board would be required to put the amendment up to vote whether board members agreed with it or not.

It would be best to obtain legal counsel before choosing any of the three options, or finding another solution.

Attorney Sylvia Heldreth is a Certified Specialist in Real Estate Law. Her office is located at 1215 Miramar St. in Cape Coral.

This article is not intended as specific legal advice to anyone and is based upon facts that change from time to time. Individuals should seek legal counsel before acting upon any matter involving the law.

 
 

 

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