Chapter 10 - § 10.12 • TOBACCO SMOKE

• Jurisdiction: Colorado

§ 10.12 • TOBACCO SMOKE

An issue that is likely to arise with increasing frequency and become highly contentious is restrictions on smoking in common areas and even in individual units.⁴⁶⁰ The authority of common interest communities to ban smoking in enclosed common areas — hallways, lobbies, common rooms, or club houses — based on widely accepted public health concerns is not in any doubt.⁴⁶¹ Restrictions on smoking in unenclosed common areas — for example, grounds, parking lots, and pool decks — are probably also permissible.⁴⁶² One interesting issue that does not yet appear to have been addressed by an appellate court is whether, if an association bans smoking in common elements, that ban extends to limited common elements, for instance "private" balconies or patios.

Regardless of any authority an association might have to regulate smoking,⁴⁶³ the Colorado Clean Indoor Air Act⁴⁶⁴ prohibits smoking in any indoor area including in an elevator;⁴⁶⁵ in condominium or "other multiple-unit residential facility"⁴⁶⁶ restrooms, lobbies, hallways, or other common areas;⁴⁶⁷ and in "entryways."⁴⁶⁸ It also prohibits smoking in a "place of employment,"⁴⁶⁹ meaning any indoor area or portion of one that is under the control of an employer and in which employees perform services for, or on behalf of, that employer.⁴⁷⁰ Because the definition of an employer is any association, corporation, or nonprofit entity that employs one or more persons,⁴⁷¹ common interest communities may potentially qualify as employers; however, a place of employment not open to the public and under the control of an employer that employs three or fewer employees is exempt from the Act.⁴⁷² Nonetheless, the Act requires all employers who own facilities otherwise exempted from its requirements to provide a smoke-free work area for employees who request one. The Act says that every employee has a right to work in an area free of environmental tobacco smoke.⁴⁷³ Thus, an association that employees a single janitorial employee must provide him or her with a work area free of environmental tobacco smoke if he or she requests it.⁴⁷⁴ The Act specifically exempts from its coverage private homes or residences,⁴⁷⁵ which would presumably apply to individual units in a common interest community.

While the enforceability of restrictions on smoking in common areas seems settled, the right of associations to prohibit smoking in individual units is not.⁴⁷⁶ The argument for these bans is that in multi-family buildings, smoke may travel between units or to the common elements.⁴⁷⁷ The issue has arisen in the landlord/tenant setting,⁴⁷⁸ and has begun to be litigated in common interest communities. For example, in a Florida case, a unit owner sued a neighbor for trespass and nuisance when cigarette smoke seeped from the defendant's unit into the plaintiff's home.⁴⁷⁹ The plaintiff contended the smoke caused health problems for her family and had, at least once, triggered her smoke detector. While the court found for the plaintiff, it cautioned that second-hand smoke is a "part of everyday life" and not ordinarily actionable as trespass,⁴⁸⁰ but would be under the unique facts of the case. The court also found that there was a nuisance, and it discussed what it identified as a "breach of covenant of quiet enjoyment." Apparently, the court was referring to a declaration clause stating unit owners could not allow anything in their units that would interfere with the rights of other owners or annoy them by unreasonable noises "or otherwise," language that is fairly commonly included in common interest community documents.⁴⁸¹ One Colorado case deals specifically with an association ban on smoking in units. In that case, the association rule that prohibited smoking in units implemented a covenant proscribing nuisances considered "an annoyance to residents." A trial court, finding that shared airspace in soffit areas allowed smoke or smoke odor to travel, upheld the association rule.⁴⁸²

Ordinarily, associations have an obligation to enforce the documents and the rules the governing board enacts. However, in a Maine case, an association adopted a ban on smoking in all common areas and then expanded it to prohibit smoking anywhere in the community.⁴⁸³ An owner sued individual members of the board and the association, claiming the board was intentionally not enforcing the ban. The court dismissed the...