By Robert Meisner
Most Michigan residents are familiar with the Dr. Ron Davis Smoke-Free Air Law of 2009; if not by name, then by its radical ban of smoking in Michigan’s restaurants and taverns. It is hard to imagine another law that has changed our daily lives more. The Act, and others like it around the country, is based on mounting research on the health risks of secondhand tobacco smoke to nonsmokers who share an enclosed place with smokers. While most Michigan residents approve of the law, roughly one fifth of all adults in Michigan still smoke tobacco. This can create highly charged debates for condominium associations. How are the rights of smokers and nonsmokers balanced in condominiums where units often share common hallways, walls and HVAC systems? Can smoking be banned throughout a condominium, including inside co-owners’ individual units?
With a number of exceptions, such as cigar bars, the Smoke-Free Act applies to (1) indoor places owned or operated by the government, (2) specific indoor places used by the public, such as schools and arenas and (3) places of employment. Condominiums are neither public places nor are they one of the exceptions specifically referenced in the Act. Despite this, the Frequently Asked Questions section on the Smoke Free Act on the State’s official website, initially stated: “All indoor common areas of apartment and condominium buildings must be smoke-free as of May 1, 2010.” (This statement has since been removed from the site.) The State of Michigan’s initial interpretation may have been based on the assumption that such indoor common areas are “places of employment.” The “places of employment” exception to the Act provides a significant catchall by which the Act can arguably be applied to nearly any private enclosed area. The Act defines a work area as, “a site within a place of employment at which 1 or more employees perform services for an employer.” The Act contains no minimum amount of working hours and only requires one employee for the Act to apply. This definition is so vague it is almost certainly headed for litigation, and it’s likely the state recognized this when they removed the above statement from their website. How often must an employee perform services in an area; once a week, once a month, once a year?
In 1992, Michigan’s Attorney General, Frank Kelley, issued opinion 6719, which stated, “It is my opinion, therefore, that neither state nor federal law prohibits a privately-owned apartment complex from renting to non-smokers or, in the alternative, restricting smokers to certain buildings within an apartment complex.” It appears that a new condominium could establish itself from its inception as being smoke free in both the common elements and individual units. The question remains, could an existing condominium with co-owners who are both smokers and non-smokers convert its common elements and private units into a smoke-free facility?
In the 1995 case City of North Miami v Kurtz, the Florida Supreme Court held that smoking was not a fundamental right protected by the Constitution. In that ruling, the court upheld a city regulation requiring all city employees to sign an affidavit, stating that they had been nonsmokers for at least one year. Although this ruling is limited to Florida, it provides a powerful argument against any claim or defense raised by a smoker based on Constitutional law. Nationwide, court rulings have been mixed on whether tobacco smoke constitutes a legal nuisance, and the final determination may be fact-specific. In 2011, in Ewen v Maccherone, the New York Supreme Court held that the defendant’s smoking was not so unreasonable as to constitute a nuisance. However, in 2005 in Merill v Bosser, a Florida trial court found secondhand smoke to be so pervasive as to be a nuisance and issued an injunction prohibiting owners from smoking inside their own units. The strongest argument in favor of grandfathering in existing smokers appears to be that a co-owner should be able to rely on the rules and by-laws that existed at that time they purchased their unit. This argument is more emotionally compelling than it is legally compelling. Condominium rules and by-laws are frequently changed, and the courts will usually presume that such changes and amendments are reasonable unless proven otherwise.
In 2006, in Christiansen v Heritage Hills1 Condo. Owners Ass’n a Colorado court took on the issue of whether a condominium association could institute a total smoking ban that applied to the individual units of co-owners. The Christiansen court concluded that the association could ban smoking throughout the entire condominium, including inside co-owners’ individual units. Testimony in the case stated that multiple co-owners complained of “an almost constant smell of cigarette smoke.” The court found that based on these facts, the tobacco smoke did constitute a nuisance. Although the court did acknowledge that the ban came after the smokers had purchased their units, it responded with a quote from a California opinion Lamden v La Jolla Shores Condominium Homeowners Ass’n:
“Anyone who buys a unit in a common interest development with knowledge of its owners association’s discretionary power accepts the risk that the power may be used in a way that benefits the commonality but harms the individual.”
One interesting fact in Christansen is that under Colorado law, an approval vote of 75% was required to pass the amendment/smoking ban.
Prior to instituting a total smoking ban through amendment of the governing documents, it would be prudent for an association to first consult with knowledgeable counsel who specializes in such issues. It may then wish to have a town hall style meeting on the issue and seek the concurrence of all the Co-owners. Finally, in order to keep peace in the association, it may consider phasing in the ban; allow smoking in a specified area, or grandfathering in existing co-owners who smoke. However, it appears that the legal and public environment is ripe to support an association to totally ban smoking in all enclosed areas, including inside the units of co-owners who presently smoke. At this point, such a smoking ban is not mandatory under the law and would instead be the choice of individual associations. If an association wishes to enact a smoking ban, an amendment to the condominium’s by-laws is recommended. In most associations, this will require an approval of a super majority of the co-owners.