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BANNING
SMOKING
 A case came down this past week that may
effectively eliminate smoking in the common areas of condominium complexes.
Facts: The Oakwood Apartments banned smoking in all indoor units
and indoor common areas, but permitted it in the outdoor common areas (including
locations near swimming pools, common BBQs, playgrounds and outdoor dining
areas) in order to accommodate residents and guests who smoke.
Furthermore, Oakwood encouraged smoking in its
outdoor common areas by providing ashtrays for smokers, by permitting its
employees to smoke in outdoor areas, and by making a business decision to allow
such outdoor smoking to aid its efforts to market their residential units to an
“international clientele.”
One of the Oakwood residents was a five year
old girl, Melinda Birke, who had allergies and asthma. The secondary smoke in
Oakwood’s outdoor common areas exacerbated Melinda’s symptoms and caused her to
suffer through three bouts of pneumonia. Although Melinda’s father requested
that Oakwood ban smoking in the outdoor common areas, Oakwood denied these
requests.
Melinda filed a lawsuit against Oakwood,
claiming that Oakwood’s failure to ban outdoor common area smoking constituted a
public nuisance and a violation of the Americans With Disabilities Act (ADA).
Ruling of the Court: In Birke v.
Oakwood Worldwide (January 12, 2009), the California Court of Appeal ruled
that Melinda could continue with her nuisance claim against Oakwood, but her ADA
claim must be dismissed.
Reasoning of the Court: Melinda’s public
nuisance claim could proceed because Oakwood “plainly has a duty to maintain its
premises in a reasonably safe condition” and her complaint properly stated that:
1) Oakwood’s decision to allow smoking in
the outdoor common areas created a condition which was harmful to health or
obstructed the free use of the common areas, and which interfered with the
comfortable enjoyment of life or property;
2) allowing smoking in the outdoor common
areas affected a substantial number of people at the same time;
3) an ordinary person would be reasonably
annoyed or disturbed by smoking in the common areas;
4) the seriousness of the harm caused by
second hand smoke outweighed the social utility of allowing smoking in the
outdoor common areas;
5) neither Melinda nor her parents
consented to Oakwood’s conduct;
6) Melinda suffered harm which was
different from the type of harm suffered by the general public; and
7) Oakwood’s conduct was a substantial
factor in causing Melinda’s harm.
However, Melinda’s ADA claim was dismissed
because the court was persuaded that “the ADA does not apply to apartments and
condominiums.”
 COMMENTS:
This decision was based upon the court’s legal interpretation of the facts which
Melinda wrote in her court complaint. In order to obtain a judgment against
Oakwood, she will still have to present evidence establishing each of the above
seven points at a trial. Nevertheless, this case demonstrates that those
associations which allow smoking in their common areas are subject to potential
liability to residents for nuisance. To limit such exposure, Board of Directors
and managers should consider, in consultation with their counsel, amending their
governing documents to ban or restrict common area smoking.
Very truly yours,
Gary Kessler, Esq.
Adams Kessler PLC
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