Restrictions on Smoking Should Be Handled With Care

The King County Council is currently considering a proposal to prohibit smoking in the busiest areas of county parks.  If that proposal is adopted, King County will join the hundreds of other local governments around the country which have restricted smoking in public parks. Washington condominium and homeowners associations have an analogous authority to ban smoking in their common areas unless their governing documents specifically provide otherwise.  However, those associations’ boards must first adopt and publish rules to that effect in accordance with applicable procedures.

Smoking within the units of a condominium can only be restricted by amending that condominium’s declaration.  This requires obtaining the approval of a super-majority of the owners in accordance with applicable procedures.  Boards should be prepared for intense opposition to anti-smoking amendments.  They should also be aware that litigation is occasionally necessary to establish the validity of those amendments.

Condominium and homeowners associations that want to restrict smoking should seek legal advice in advance from attorneys with the expertise to help them achieve that goal in a legally defensible manner.  Failing to do so could be hazardous to their health.   

Resident Hero Fights Condominium Fire Caused by Smoking on Deck

On September 22, off-duty firefighter Dan Hess grabbed his gear to battle a blaze on the roof of his north Seattle condominium building. Described as a hero by his neighbors, Hess helped to contain a fire ignited by lit cigarette embers that fell through a deck.

The Washington Condominium Act gives associations the authority to regulate the appearance and use of limited common areas like decks unless their governing documents provide otherwise. Condominium boards can thus usually approve rules regulating or restricting smoking on decks in order to reduce fire and nuisance risks. Consulting with the owners to gauge the level of support for proposed rules affecting smoking on decks is a good initial practice. Boards should also consider asking the association’s attorney to evaluate proposed anti-smoking rules before a vote is taken.

Plant Containers Represent Unappreciated Fire Hazard

Earlier this year, a condominium in Calgary, Canada was destroyed by the combustible combination of a cigarette and potting soil. A person smoking outside the building apparently put a cigarette “out” in the dirt of a nearby planter. The planter contained two flammable ingredients: dry peat moss and fertilizer. The result was a massive fire and 250 people homeless.

Condominium boards should warn residents that potted plants and planters can pose a potential fire hazard. It is a good policy to either encourage or require residents to use ashtrays when they smoke on decks or porches and when they smoke in common areas. The association’s attorney and property manager can help identify the sources of association authority in this area and any limitations on that authority.

Smoking in Common Areas - Permit or Restrict?

As the old saying goes, where there’s smoke there’s fire. Community association boards are sometimes confronted by the fire of owners’ anger when they are bothered by other owners’ cigarette smoke. However, boards do not have the power to prevent owners from smoking in their units and in the common areas unless there are restrictions on smoking in their associations’ governing documents (the 2005 Seattle initiative restricting smoking does not apply to condominium and homeowners associations).

A recent lawsuit in California illustrates how far some owners are willing to go to be free of cigarette smoke. The Oakwood Apartments permit smoking in the outdoor common areas of the complex. Melinda Birke, a five-year old girl who has allergies and asthma, lives at Oakwood. Secondary smoke in the outdoor common areas made her symptoms worse and contributed to her falling ill with pneumonia on three occasions. Melinda’s father asked the board to ban smoking in those areas, but it refused to do so. Melinda then filed a lawsuit against Oakwood alleging that the failure to ban smoking in the outdoor common areas constituted a public nuisance. Oakwood filed a motion to dismiss Melinda’s lawsuit. The court ruled that Oakwood “plainly has a duty to maintain its premises in a reasonably safe condition” and that Melinda could prevail if she submits evidence at trial that supports the elements of her public nuisance claim.

It is difficult to predict how a Washington court would rule if it was presented with the facts in the Oakwood case. The nuisance statute in Washington states in part that a failure to perform a duty is a public nuisance if it “annoys, injures, or endangers the comfort, repose, health, or safety of others” and “affects equally the rights of an entire community or neighborhood, although the extent of the damage may be unequal”. Given this broad definition of public nuisance, the outcome of the case would likely depend on how the court characterized the association’s duty to regulate the use and maintenance of the common areas. The fact that many associations’ governing documents contain a section prohibiting “noxious or offensive activities” and “conduct which may be an annoyance or nuisance” could also form the basis for a separate legal claim.

The Oakwood case demonstrates that condominium and homeowners associations which allow smoking in their common areas could potentially be subject to liability. As a result, boards may wish to consider amending their governing documents to ban or restrict smoking in common areas. The applicable laws in Washington give condominium and homeowners associations the general power to regulate the use and maintenance of common areas. Rules banning or restricting smoking in common areas can therefore be adopted by boards without a vote of the owners unless there are contrary provisions in their associations’ declarations or covenants.