Real Estate & Property Law

Smoking in HOAs - Is it a Fundamental Right?

Smoking, should we feel sorry for the smokers, or those who have to smell it?

Many want to know if HOAs can ban smoking in common areas, exclusive use common areas (like balconies and patios), or in units.

There are more decisions coming down all over the US on smoking, and the ones I have seen are not in favor of the smokers. There are more City ordinances banning smoking in public areas, office buildings, restaurants, bars and office buildings. So, should we feel sorry for the smokers?

I guess we should feel sorry for anyone that can't kick the addiction but luckily, the spreading interest in protecting the public from smokers helps some. I was a smoker years ago, I had a hard time stopping, but when the ban in California reached restaurants and office buildings, it became harder to smoke than to not.

Yes its hard to stop, but there is no civil liberty disturbed or fundamental right violated when smoking is banned. Smoking is harmful to the smoker's health, and those around the smoker. I have friends that smoke, but I can hardly spend time with them because they always have to go off and take a smoke break, and so I either sit alone in the restaurant or stand outside to talk to them, neither of which is pleasant. When I have friends over, the two smokers spend the evening outside off by themselves and everyone else hangs out and visits. I find myself spending less and less time with these friends. Besides the nuisance, I see them slowly killing themselves and each other with the double dose of smoking and inhaling the second hand smoke of the other.

So besides the health issues, it adversely affects friendships.

And as for banning smoking - we would not let people spray bug spray in our faces, should we let them blow smoke?

I usually try not to take sides on serious issues here in the blog, because I want to present both sides to the public, as an informational thing, and commonly look for balance, but on this one I am firmly on the side of the non-smokers, and so, I believe, is the law.

There are cases that support bans in the common areas, including exclusive use common areas. As for smoking in units, if it is happening and there is no reasonable way to block the transmission into neighboring units, I believe it clearly qualifies as a nuisance.

There is no fundamental right to smoke. And don't get me started on those stinky, offensive cigars.

Full post as published by California Condo & HOA Law on January 27, 2009 (boomark / email).