SMOKING RESTRICTIONS

INJURIOUS TO HEALTH
Because secondhand smoke is injurious to health,¹ even low levels of exposure could be considered a nuisance.² While a small amount of smoke might be annoying or even a nuisance in a complex that bans smoking, the same cannot be said for a complex that allows it. To eliminate complaints related to secondhand smoke, associations are increasingly restricting or prohibiting smoking in the common areas, in exclusive use common areas such as balconies and patios, and even in units.

fn. 1. U.S. Department of Health and Human Services. How Tobacco Smoke Causes Disease: The Biology and Behavioral Basis for Smoking-Attributable Disease, A Report of the Surgeon General. 2010; State of California Air Resources Board. Proposed Identification of Environmental Tobacco Smoke as a Toxic Air Contaminant. Executive Summary, 2005; U.S. Environmental Protection Agency. Fact Sheet: "Respiratory Health Effects of Passive Smoking," 1993.

fn. 2. Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540.

No Right to Smoke. In a written opinion by the Public Health Institute, people do not have a constitutional or fundamental right to smoke. Moreover, nicotine addiction is not a protected medical condition or disability. Plus, it is defined as a nuisance. There has been a steady movement over the years to prohibit smoking in residential units. The American Lung Association published "Smokefree Policies in Multi-Unit Housing." A statute that went into effect on January 1, 2013 (Civ. Code § 1947.5) allows landlords to ban all smoking in buildings, including dwelling units, and on the property. Accordingly, smoking can be banned by condominium associations, including inside units.

Employee Workplaces. Starting January 1, 2007, associations with employees must protect their employees from secondhand smoke by prohibiting smoking in all enclosed spaces in the workplace. This includes lobbies, lounges, waiting areas, elevators, stairwells, and restrooms. (Labor Code § 6404.5.)

DUTY TO INVESTIGATE
When a resident complains of nuisance smoke, boards have a duty to investigate the complaint to determine if the odor is a mere annoyance or an actionable nuisance. 

[E]very annoyance or disturbance of a landowner from the use made of property by a neighbor does not constitute a nuisance. The question is not whether the plaintiffs have been annoyed or disturbed ... but whether there has been an injury to their legal rights. People who live in organized communities must of necessity suffer some inconvenience and annoyance from their neighbors and must submit to annoyances consequent upon the reasonable use of property by others. (Schild v. Rubin (1991) 232 Cal.App.3d 755, 764.)

Phantom Smells - Documentation. Directors don't need to personally investigate. Managers, maintenance personnel, or experts can investigate and report their findings. Not every complaint is legitimate. Some people suffer from a condition known as phantom smell syndrome. The medical term is phantosmia. The person smells things that aren't there. Medical literature describes a long list of causes for this unfortunate olfactory hallucination--some serious and others benign. If the board concludes the odor is not a nuisance (or doesn't exist), the finding should be documented in a letter to the person. If the matter ends up in court, the board's investigation, deliberation, and decision should satisfy the court. 

ABATING A NUISANCE
If second-hand smoke from a unit is drifting into the common areas or other units, the board can require that smokers abate the nuisance by taking one or more of the following steps:

• purchase HEPA filters (at the smoker's expense) and operate them inside the unit at a level that prevents smoke from migrating to surrounding areas
• seal all penetrations in walls, ceilings and floors (at the smoker's expense) to prevent smoke from migrating to surrounding areas
• install exhaust fans that vent to the outdoors
• install weather stripping and door sweeps around their external doors 

Outdoor Common Areas. Associations that allow smoking in outdoor common areas are subject to potential liability for nuisance. In Birke v. Oakwood, 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 smoked. One of the residents, five year old Melinda Birke, had allergies and asthma. Second-hand smoke exacerbated Melinda’s condition. Melinda’s father requested that Oakwood ban smoking in the outdoor common areas. His request was denied. The California Court of Appeal ruled that Melinda could continue her nuisance claim against Oakwood because Oakwood “plainly has a duty to maintain its premises in a reasonably safe condition” and her complaint properly stated that:

• 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;
• allowing smoking in the outdoor common areas affected a substantial number of people at the same time;
• an ordinary person would be reasonably annoyed or disturbed by smoking in the common areas; and
• the seriousness of the harm caused by second hand smoke outweighed the social utility of allowing smoking in the outdoor common areas.

Balconies. Restricting smoking is not a violation of a person's civil or constitutional rights. Associations have good reason to regulate smoking--it is a health hazard, a fire risk, and a nuisance. Associations have broad rule-making authority and can prohibit smoking on balconies.

COMPLETE SMOKING BANS
In Colorado, an association amended its CC&Rs to ban smoking inside units. The restriction was challenged by smokers. The court rejected the smokers' argument that the restriction exceeded the association's authority. The judge noted that second-hand smoke is a nuisance and upheld the CC&R amendment as proper and reasonable. (Christiansen v. Heritage Hills.)

Cities Restrict Smoking. In addition to being a fire hazard, cigarette smoke inside units can be drawn into some buildings' central air system and distributed into other units. The City of Belmont passed an ordinance that declares secondhand smoke a public nuisance and forbids smoking in apartments, townhouses, and condominiums that share a common floor or ceiling (see Belmont ordinance).

• Oakland extended its outdoor smoking ban to include parks, bus stops and outdoor eating areas, and mulled over a ban on smoking in apartments and condominiums.
• In 2012 Santa Monica banned smoking for new tenants of apartments and condos and empowered neighbors to take them to court if they did so.
• In 2011 Pasadena banned smoking in all multi-family units including condominiums and townhouses. The statute prohibits smoking in all common areas and inside units. (See Reduction of Drifting Smoke.)
• In 2012 The City of San Rafael passed an ordinance banning smoking in multi-unit housing (including condominiums).
• On November 26, 2014 a smoking ban took effect in Culver City prohibiting smoking in all areas of multi-unit housing in the city, including indoor and outdoor common areas and individual units.
• In 2023, The City of West Hollywood has adopted an ordinance to prohibit smoking in multi-family dwellings. Effective July 15, 2021, smoking tobacco, cannabis, and vaping are prohibited in all Common Areas of multi-family dwellings. Effective January 1, 2023, smoking tobacco inside any part of a multi-family residential dwelling is prohibited (units, private balconies, patios). The City has not imposed any restrictions on smoking or vaping cannabis inside units, whether it is for medicinal/therapeutic or recreational purposes. The Ordinance does not clearly reference exclusive use common areas, such as balconies, but it appears that smoking cannabis is allowed in such areas. Here is a link to the City’s website where you can read the ordinance.

A list of California municipalities that have enacted laws that prohibit or restrict smoking  within multi-family housing units can be located at American Nonsmokers' Rights Foundation. Additional information about smokefree housing information can be found at Smokefree Multi-Unit Housing Policies.

HOAs That Ban Smoking. In our firm's newsletter, we asked readers to report if they had successfully banned all smoking in their development, including inside units. Following are some of the responses:

HOA #1. You asked readers to share whether they had a ban on smoking in their governing documents. We first banned smoking in the common areas back in 2009. In 2010 members adopted a complete ban ANYWHERE within the four corners of the parcel (common area, inside the units and sidewalk). We extended the ban to members, residents, guests and vendors. -Sandy O, San Francisco.

HOA #2. We are a 36-unit condo association that recently adopted a no smoking policy both inside the units and in any part of the common area EXCEPT for a designated smoking area in the common owners parking lot. We adopted the policy based on the nuisance clause in our CC&Rs. -Rick H, Canyon Lake, CA

HOA #3. Our association has the following restriction: "No owner, family member, tenant, resident, guest, business invitee or visitor shall smoke cigarettes, cigars, or any other tobacco product anywhere within the boundaries of BTH. This prohibition shall include the outside common area, enclosed common area, exclusive common area (balconies and patios) and all units within the project." -Jonathan P, Berkeley, CA

HOA #4. I have one association in Tiburon that doesn't allow smoking anywhere on the property, including inside units. "No Smoking Property" signs are at each property entry. -Trudy M.

HOA #5. Our association prohibits smoking in all areas with the exception of a single location on the roof deck. Because we have a passive ventilation system that is constantly introducing fresh air into the units, smoking inside the units would quickly cause cigarette smoke to propagate between units and is therefore prohibited. In addition to our CC&R restriction, we have a separate smoking restriction policy. -Brian H, San Francisco

HOA #6. We amended our documents to become a non-smoking facility both within individual units and in the common area. We made an exception for two older residents to continue smoking on their balconies only. These two have now passed away, so we are a smoke-free complex. -Angela D, Los Gatos

HOA #7. We successfully amended our CC&Rs to ban smoking throughout our seniors 112-unit condo (including inside units). -Steve R, Torrance

Amend CC&Rs. Complete smoking bans can be done through a rule change adopted by the board of directors but the better approach is to amend the CC&Rs by a vote of the membership. A CC&R amendment has a presumption of reasonableness and puts all current and future members on constructive notice of the ban since CC&R amendments are recorded. It is also less likely to be challenged in court since the ban was approved by the membership rather than the board. And, if litigated, it has a better chance of withstanding the challenge since the burden is on the complaining party to prove the restriction unreasonable. The challenge would have little chance of succeeding because of the well-documented dangers associated with smoking.

E-CIGARETTES
Electronic cigarettes are battery-powered devices that deliver nicotine in a vapor to the user. 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." 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. 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 Units & 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. 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.

Related Information. Smoking and Growing Marijuana.

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