Methods for Resolving Cigarette Controversy in HOAs

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Cigarette smoking

Smoking in Communities

Over the last ten years the number of multi-residential housing projects has increased dramatically. As people are brought into closer proximity there has been a spike in the number of complaints of second hand smoke wafting between units. Recent scientific findings indicate that second hand smoke can, among other things, increase the likelihood of a heart attack, high blood pressure or cancer. As these scientific studies continue to find health risks from exposure to second hand smoke, governments on different levels have continued to respond by banning smoking in many public forums

Secondhand Smoke a Nuisance

There are indications that one of the next targets on the list is to curb or ban smoking in multi-residential housing projects. When a neighbor complains that second hand smoke from their neighbor is invading their home and endangering their lives, should the board of directors become involved? This article will explore this issue and discuss possible approaches to be used

People talk about second hand smoke as if that were the problem, saying “We are going to ban second hand smoke.” A noble sentiment, but the real problem is the act of smoking that caused the second hand smoke. So, in order to deal with a second hand smoke problem, you need to address the first hand smoker. There are people with strong convictions lined up on both sides of this argument. “You cannot ban a legal activity in a person’s home” or “A person’s home is their castle.” Another argument goes if you are going to ban cigarette smoking, why not other smells? For example, a family has moved in next door to your condominium unit and has continued in the tradition of their ancestors to bury the family kimchi pot in their exclusive use planter box. When ripened, it is cracked open to savor the salty, garlicky goodness of the ripened cabbage. The stench has now wafted into their neighbor’s unit; where it has awakened their ancestors who are now angry. On the face of this how do you differentiate between kimchi and second hand smoke? That is where the science comes in.

Legislative Efforts to Restrict Smoking

A recent newspaper article stated that if current trends hold true, tobacco will kill a billon people over this century. In November 1988 California voters approved the California Tobacco Tax and Health Promotion Act (Proposition 99), the first in the nation to implement a comprehensive tobacco control act. Starting about ten years ago California began to ban smoking in most bars, restaurants and work places. In 2003 Assemblyman Joe Nation, introduced AB210 that would have stopped smoking in multi-family common areas and then later inside the dwelling units. (This law did not pass that time, but it is very likely there will be more efforts from the legislature in this regard.) On June 30, 2004, a study published in the British Medical Journal found that second hand smoke was significantly more dangerous than previously thought, increasing the risk of heart disease in those exposed to second hand smoke. In January 2006 the California Air Resources Board declared second hand smoke a toxic air contaminant joining benzene, arsenic and diesel fumes as toxic air pollutants.

California became the first state to declare that secondhand smoke is a toxic air pollutant, citing links to breast cancer and heart disease. The California Air Resource Board has declared that the next steps will be to reduce the public exposure to second hand smoke including smoking bans in multi-family housing common areas and outdoor separate interests. So that you do not think it is a slam-dunk, there are many scientists on the other side of the fence that claim the research and findings regarding the risks of second hand smoke are nothing more than voodoo science. (The articles and references are too numerous to list here; simply perform your own Google search for “Second Hand Smoke bogus science.”)

Other states have passed laws to either ban smoking in certain public places, or to make it easier for neighbors to file a lawsuit for nuisance to stop their neighbor from smoking. In Utah, a law that is the first of its kind was passed that states, “A nuisance is anything which is injurious to health, indecent, offensive to the senses, or an obstruction to the fee use of property, so as to interfere with the comfortable enjoyment of life or property. A nuisance may be the subject of an action…A nuisance may include the following…A nuisance under this section includes tobacco smoke that drifts into any residential unit a person rents, leases, or owns, from another residential or commercial unit…”. (Utah Code 78-38-1) Under this law a non-smoker who has a problem with second hand smoke emanating from their neighbors unit can now sue their neighbor for nuisance to stop them from smoking inside of their unit. If the project’s governing documents contain nuisance language, as most do, the board will need to be prepared to analyze the issues and respond appropriately.

Recently local governments in California have joined the fray. As a first in California, the City of Dublin recently gave preliminary approval for an ordinance declaring second hand smoke to be a public nuisance. (We have not seen this law and it is uncertain if it will only apply to public nuisance.) We understand that similar ordinances are being considered by Emeryville, Pleasanton, San Francisco and other municipalities. In the future any common interest development dealing with a second hand smoke issue between unit owners will need to determine if there are local ordinances that have been passed that could alter the legal responsibilities of the parties, such as contained in the Utah code described above.

HOAs and Smoking Nuisances

Suppose that you have an elderly lady with an allergy to secondhand smoke. Her neighbors are chain smokers with a prodigious output of smoke, rivaling an industrial smoke stack. To make matters worse, they are also out-of-work insomniacs; so the smoking goes on 24/7. There has been dialogue between the owners, but these discussions have broken down and the non-smoker has now sent a letter to the board asking for their intervention to help resolve the situation. She delivers an ultimatum to the board: if the board does not get involved she is going to sue the neighbor and the board for not addressing a serious nuisance that is making her sick. Due to the amount of smoke in her unit, she is now seeing her doctors every other day. What is a board to do? Unfortunately there is little case law to help guide the board in this area, as almost all of the cases deal with matters between tenants and landlords. On top of this there may now be a local statute making smoking a nuisance.

How to Handle Complaints about Smoking Nuisances

What should a board do if they are confronted with a member complaining about a smoke fiend neighbor?

Investigate the Complaint

Contact each of the members and ask for them to attend separate hearings at a board meeting. Ask them to provide any documentation and history regarding the complaint. Find out if the member complaining about the smoke has a medical condition that would make them susceptible to second hand smoke such as emphysema, asthma or similar condition. Ask if the non-smoking resident has a letter from her doctor detailing her condition and the impact that second hand smoke has on her health. Contact any other unit owners near the smoker and determine if there are any other unit owners that complain about the smokers. Try and locate the source of the second hand smoke. Are the smokers out on their balcony smoking and the wind blows the smoke next door? Is it when they smoke in a certain area of their unit?

Test the Air Quality

There are companies that can perform air quality tests to provide subjective data regarding the levels of smoke being transferred between units. This can be helpful in determining the level of the various toxic gases, and whether it meets or exceeds specific guidelines. There are experts in the field that can conduct the tests and advise the board of directors regarding the levels of toxicity and to advise them on how to proceed in regards to possible ways to remedy the transfer of smoke between units. It will be very important to consult with the CID’s attorney to work with the expert to keep the board within the safe harbor rules of the Davis-Stirling Act and the California Corporations Code.

Accommodate the Residents

Does the smoke infiltrate the neighbor’s unit or property line? If the area where the smoke is being transferred can be identified, try to reach a mutually agreeable accommodation. Maybe the smokers can go outside the front door to smoke, or keep their windows closed. There are structural modifications that can be made such as sealing gaps in electrical outlets; weatherproofing doors and windows, or installation of fire-stopping in party walls should an owner remodel their unit. The owners can also have their ductwork checked to determine if there are any leaks. While smokeless ashtrays and air-purifiers are available, their effectiveness has been questioned. If it is possible to resolve the matter at this level it is prudent and will avoid the potential legal fees and costs should the matter proceed to court.

Mediate/Arbitrate the Dispute

If the issue cannot be resolved between the unit owners, suggest that they go to a neutral mediator or arbitrator to see if they can work out their differences to avoid the time and expense of litigation.

Litigate to Resolve the Issue

If none of these options resolve the issue, the non-smoker may resort to filing a lawsuit against the smoking neighbor and possibly the CID. The few cases that have been filed by a non-smoker against a CID have not been successful. There have been instances where courts have ruled against the smoker and have issued an injunction to prohibit the smoking. We were not able to locate any cases that found a CID liable for the second hand smoke. Most of the cases involve landlord/tenant disputes and the case law may not apply to CIDs. If a non-smoker decides to sue a CID at this present time, they would have little or no case law to rely on. This can change if state or local ordinances are passed, at which time it will depend on how the statute is written. With the mounting scientific challenges to the safety of second hand smoke, a court in the future could rule in favor of the non-smoker on a public safety basis. We advise our clients that there are two words they need to avoid being: “test case.” The cost of litigating such a case of first impression, and the likely appeal to follow would be in the hundreds of thousands of dollars. The prevailing party would also be entitled to an award of reasonable attorney fees, which could significantly to the damages.

Assuming testing has occurred and demonstrated toxic levels of second hand smoke, how do you remedy the situation? If the board has determined that the smoking rises to the level of a nuisance under the law or an ordinance, and the project governing documents contain nuisance language, the board may be required to take reasonable steps to abate the nuisance. Either the smoker has to stop smoking in that unit, or there must be some accommodation that stops the transfer of smoke between units. If the unit owners have unsuccessfully tried to make accommodations, and the attempts at mediation have failed, it may require a lawsuit to be filed to resolve the situation.

Amend the Governing Documents

There are a wide range of options available to a CID that is considering whether to ban smoking. These range from banning smoking in common areas, exclusive use common area, or even in the separate interest if it rises to the level of a nuisance. It is also possible to convert the entire project to a smoke free status. There is no constitutional right to smoke, nor are smokers a protected class under the Equal Protection Clause of the United States or California State Constitution. So, smoking could be banned if the project governing documents are properly amended. For existing CIDs the governing documents would need to be amended by the appropriate number of votes of the membership. This should be done with the assistance of legal counsel to ensure the proper smoking limitations are achieved, and to discuss whether to grandfather in the application of the amendment to allow smokers who currently reside at the project to continue to smoke until they sell their unit.

Federal Fair Housing and American with Disabilities Act

A final concern pertains to claims under the Federal Fair Housing Act (FHA), or under the American with Disabilities Act (“ADA”). As indicated earlier, it is important for board members to understand what type of complaint they may be dealing with. If the non-smoker has a medical condition that meets the baseline requirement of either of these federal statutes, it will require the board to take precautions to protect the rights of the non-smoker and to make reasonable accommodations to alleviate the exposure to second hand smoke. A suit filed against a CID by HUD (or, in California, the DFEH), under the ADA (or in the state equivalent) and Fair Employment and Housing Act (FEHA) carries with it the threat of civil monetary damage. It is also a fact that the government has much deeper pockets than normal civil litigants, and the legal fees and costs in defending such an action can be substantial.

A precautionary tale can be found in the recent case of Housing Rights Center vs. Los Felix Towers Homeowners Association, 426 F. Supp. 2d 1061. In this case an association denied an owner the use of its general manager’s parking space so the owner could self-park a specialty vehicle that accommodated her wheelchair lift. The case was resolved short of trial and the association paid $214,000 in damages and attorney fees. It is not stated how much the association’s legal and expert fees were, but they were likely in excess of $100,000. In looking at whether the association had done enough to accommodate the member’s special needs the court stated that the question of accommodation is a highly specific fact-based analysis to be determined on a case-by-case basis. For these reasons, any time you are dealing with an accommodation from an owner that may fall under the FEHA or ADA it heightens the need for a careful analysis of the specific facts involved and implement reasonable accommodations (the issue of whether a CID’s common area falls under the ADA is beyond the scope of this article; consult your association counsel). If the board decides not to make some accommodations be sure to set forth, in specific detail, the grounds for denying the accommodation(s).

Any association that has had to fight an action brought against them by the FEHA or the ADA can attest to the fact that it is very expensive—win or lose. A board should determine if their insurance would provide a defense or indemnity in the event such a lawsuit is filed. Every board should understand the depth and breath of the potential legal and monetary ramifications for denying accommodations.

Conclusion

A board of directors confronted with a second hand smoke issue dispute between adjoining neighbors needs to ensure a proper investigation is conducted regarding the specific facts of that case. Reasonable accommodations and working with the owners to resolve the dispute without litigation is always the goal.


By Larry F. Russell.