4.08 Alcoholic Beverages, Smoking, and Firearms

• Library: South Carolina Community Association Law: Condominiums and Homeowners Associations (SCBar) (2019 Ed.)

4.08 Alcoholic Beverages, Smoking, and Firearms

While it is well settled that government may regulate sale and consumption of alcoholic beverages, in one case, Hidden Harbour Estates, Inc. v. Norman,²⁴⁴ the right of a condominium association to regulate alcohol²⁴⁵ was upheld. The association adopted a rule, approved by a majority of unit owners, prohibiting alcohol in the club house and adjacent areas. The Normans brought suit to enjoin the rule's enforcement. At trial the plaintiffs showed that no troublesome incidents had occurred at the club house during social events at which alcoholic was consumed. The lower court held that because a condominium resident should be able to engage in lawful activity that did not constitute a nuisance, the rule could not be enforced. The appellate court reversed. It held associations could regulate conduct not constituting a legal nuisance if the standards adopted were reasonable. The appellate court concluded:

.restrictions on the use of alcoholic beverages are widespread throughout both governmental and private sectors; there is nothing unreasonable or unusual about a group of people electing to prohibit their use in commonly owned areas.²⁴⁶

Smoking in common areas is often banned.²⁴⁷ Can that proscription be extended to individual apartments because smoke escapes the apartment and invades the common elements or other apartments?²⁴⁸ Councils of co-owners may actually find themselves forced to address the issue either because of nuisance law²⁴⁹ or some aspect of the community documents.²⁵⁰

The right of condominium associations to prohibit smoking in individual units is the subject of considerable debate.²⁵¹ The argument favoring smoking bans is that smoke can travel between units or to the common elements.²⁵² In a Florida case a unit owner sued a neighbor for trespass and nuisance after cigarette smoke from the defendant's unit seeped into the plaintiff's home.²⁵³ The plaintiff argued the smoke caused health problems for her family and that at least on one occasion, had triggered her smoke detector. The court held for the plaintiff, but cautioned that second-hand smoke is a "part of everyday life" and would ordinarily not constitute actionable as trespass. It also found there was a nuisance, and discussed what it characterized as a "breach of covenant of quiet enjoyment." This was apparently a reference to a declaration clause that said unit owners were not to allow anything in their units that would interfere with the rights of other owners or annoy them by unreasonable noises "or otherwise." That language is fairly common in condominium governing documents.²⁵⁴

Generally, a council of co-owners has a duty to enforce the documents and the rules the governing board adopts. In one case, an association adopted a prohibition on smoking in all common areas and then enlarged it cover anywhere in the community.²⁵⁵ One owner sued members of the board and the association, and claimed the board was intentionally not enforcing the rule. The court dismissed the claim. It noted that even if the smoking ban was not being enforced, the plaintiff failed to allege that failure to enforce it caused "cognizable, actionable harm" — that is, physical illness or injury — to the plaintiff or to anyone.

Some...