We frequently get questions about what an association can do to restrict or regulate smoking in the community. These questions have increased now that Colorado law permits growing and smoking marijuana. Typically, but not always, the issue is exacerbated in condominium or townhome communities.

Smoking cigarettes, cigars, and marijuana cigarettes pose difficult issues for the associations. On the one hand, no owner in a community likes to be told what they can and can’t do. On the other hand, no owner in a community wants their rights infringed upon. The arguments often focus on a smoker’s right to smoke and other residents’ rights to breath air that has not been contaminated by smoke.

Some recent Colorado cases still hold that a vague provision in a declaration (CC&Rs) will be construed to permit the least restrictive use of a resident’s unit. Based on these rulings, it is generally advisable for the association to include a specific, clear provision in its declaration that prohibits, or otherwise restricts, smoking. However, we all know that it can be very difficult in ordinary circumstances to amend the declaration. When you start trying to amend to prohibit or restrict an activity that is as emotionally charged as smoking seems to be, it can be even more difficult.

However, as we have all seen with our state and local governments regulating smoking, associations may need to consider whether to regulate smoking. An Orange County, California jury recently awarded $15,500 in damages in favor of residents of a condominium unit (Chaunceys) against the association, the management company and the smoking neighbors for failure to ensure the nonsmokers’ right to quiet enjoyment of their condominium. The Chaunceys had repeatedly complained to the association and the management company about the smoke infiltration into their unit through the windows and doors, giving their unit a constant secondhand smoke presence. Because of the association’s failure to address the problem, it and the management company were held 60% responsible for the resulting damages, including economic damages for having to move out of their unit, and emotional damages.

Even if your association elects to not take a position to regulate smoking, you should be prepared to address smoking if it is raised as a concern by residents in your community. And, cigarette and cigar smoking are not the only issues you need to be prepared to deal with. In Colorado, you will also need to be prepared to deal with marijuana smoke (and other odors caused by growing marijuana).

As with many issues facing community associations, there is no magic bullet. However, advance planning can go a long way toward being able to address the problem when it arises in your community.

If you need help addressing smoking, or addressing use or growing marijuana in your community, please give us a call.