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QUESTION: My HOA wants to adopt a complete smoking ban--no smoking in the common areas and no smoking inside units. Can we also ban e-cigarettes?

ANSWER: Electronic cigarettes are battery-powered devices that deliver nicotine in a vapor to the user. According to advocates, they have fewer toxins than regular cigarettes and none of the tar, making them less harmful to users than traditional cigarettes. Moreover, there is no second-hand smoke, no carcinogens in the vapor and no odors; therefore, no problem. Not everyone agrees. Although research into the effects of e-cigarette secondhand vapor remains in its infancy, early indications are that e-cigarettes are as harmful as regular cigarettes. Although e-cigarettes do not “burn” cut tobacco to produce smoke in the traditional sense, they nevertheless produce vapor with some of the same effects as regular cigarettes.

Airlines. The Department of Transportation adopted a policy that passengers cannot smoke e-cigarettes on commercial aircraft. When proposing the ban, the DOT stated:

In light of the unknown health risks with the use of electronic cigarettes by individuals who ‘smoke’ them or the people around them and the growing availability and use of electronic cigarettes, the Department is proposing this amendment … to explicitly ban the use of electronic cigarettes aboard aircraft.

Governments. The European Parliament issued strong regulations requiring health warnings on e-cigarettes and the second largest city in the country, Los Angeles, voted to prohibit them in all workplaces as well as parks, city beaches and outdoor dining areas. Contra Costa County, Richmond and Carlsbad have already banned them and other cities around the state are taking steps to either regulate or ban them.

Universities & Businesses. The University of California banned e-cigarettes on all its campuses. It did so because many of the elements in their vapor "are known to cause respiratory distress and disease." According to the U.S. Food and Drug Administration samples of the nicotine liquid they tested had "detectable levels of known carcinogens and toxic chemicals." The National Business Group on Health issued a Fact Sheet on why businesses should consider banning them in the work place.

HOA Common Areas. It is clear from the growing number of regulatory agencies, municipalities and business organizations that associations have sufficient basis to ban e-cigarette use in the common areas. Boards can do so with a simple rule change. The rationale for banning them inside condos, however, is less clear.

Inside Condos. Because condominiums (and most stock cooperatives) have shared walls, ceilings and floors where cigarette smoke can drift into adjoining units, the annoying odors and carcinogens give associations a solid basis for banning smoking inside units, and many already have done so. Banning e-cigarettes, however, may be more difficult to justify since they are not a fire hazard and their vapors might not create detectable odors in adjoining units or harm neighbors.

Recommendation: If associations decide to ban all smoking, including e-cigarettes,they should do so via an amendment to the CC&Rs. If the ban is a recorded restriction, it is presumed reasonable and the burden is on the challenger to prove it is not.

ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.

Adams Stirling PLC