1
A FLORIDA GUIDE FOR
SMOKEFREE CONDOMINIUMS
2
TABLE OF CONTENTS ...................................................................................................................................................................................................................................2
INTRODUCTION..............................................................................................................................................................................................................................................3
WHY GO SMOKEFREE ...................................................................................................................................................................................................................................4
HOW TO GO SMOKEFREE ............................................................................................................................................................................................................................5
Step One: Educate and Gather Resident Input ...............................................................................................................................................................................8
Step Two: Design your Amenity ...........................................................................................................................................................................................................9
Step Three: Implement your Amenity ...............................................................................................................................................................................................10
Step Four: Enforce your Amenity ........................................................................................................................................................................................................12
IMPORTANT CONSIDERATIONS FOR A SMOKEFREE POLICY .......................................................................................................................................................14
What Areas Can Be Designated Smokefree? ...................................................................................................................................................................................14
SMOKEFREE POLICY OPTIONS ..................................................................................................................................................................................................................15
Amend Governing Documents to Prohibit Smoking in Units and/or Common Areas .......................................................................................................16
Amend Nuisance Provision of Governing Documents to State that Secondhand Smoke is a Nuisance .....................................................................16
Adopt a Rule Prohibiting Smoking in Common Areas ..................................................................................................................................................................16
REFERENCES .....................................................................................................................................................................................................................................................17
APPENDIX .........................................................................................................................................................................................................................................................19
Frequently Asked Questions .................................................................................................................................................................................................................20
Reduce the Potential Legal Liability ....................................................................................................................................................................................................22
Sample Resident Survey .........................................................................................................................................................................................................................23
Sample Resident Policy ..........................................................................................................................................................................................................................24
Additional Resources ..............................................................................................................................................................................................................................25
Acknowledgements .................................................................................................................................................................................................................................26
TABLE OF CONTENTS
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Has your condominium or cooperative association considered going
smokefree? Are residents complaining about cigarette smoke or
e-cigarette aerosol drifting into their homes? Have you had secondhand
smoke drift into your own home? You are not the only one.
Secondhand smoke travels easily between units, damaging your
property and threatening the health of your loved ones. Many
condominium and cooperative associations in Florida are responding
to these problems by adding a smokefree policy as a new amenity to
provide clean air and stop smoking and “vaping” in common areas,
in dividual units, or both.
Smokefree amenity potential benefits:
•
Improved health and comfort of residents
• Reduced risk of residential fires
• Higher property values
• Lower cost of repairs and maintenance
• Diminished conflicts among residents
• Reduced premiums on some association insurance policies
Your condominium or cooperative board can add an effective smoke­
free amenity using this guide. It outlines each necessary step and
should help answer questions you may have about these policies. If
you have any other questions feel free to contact your local Tobacco
Free Florida representative. Our information and resources can help
your community become a happier, healthier, smokefree facility.
INTRODUCTION
4
WHY GO
SMOKEFREE


PROTECT YOUR HOME
• A smokefree policy can decrease smoke and burn damage
to property, lessen smoking­related fire risks, reduce liability
for managers and owners, and improve occupancy rates.
• Smoke from other units can come into your home. Up to 65
percent of air can be exchanged between units, involuntarily
exposing residents to secondhand smoke in neighboring units.
• Current heating, ventilating and air conditioning systems alone
do not control secondhand smoke exposure. In fact, these
systems may distribute secondhand smoke throughout a building.
• Smoke residue stays on furniture, upholstery, carpet and other
household items for years.
PROTECT YOUR
INVESTMENT
• 84 percent of Florida adults are nonsmokers, and
survey findings indicate that four out of five would
prefer living in a building with a smokefree policy.
• Smoking­related fires in residential buildings result in
an average of $326 million in property loss each year.
• A smokefree policy can decrease turnover and
repair costs.
• After implementing a smokefree policy, you may be able
to save money with insurance discounts and tax credits
such as:
» Property and casualty insurance discounts
»
“Green” building and HUD points applied
to funding and tax incentives
• Associations which do not have smokefree policies
can find themselves embroiled in disputes and even
litigation between unit owners.


PROTECT YOUR HEALTH
• Secondhand smoke increases a nonsmoker’s risk of cancer,
heart disease and stroke.
• The only means of effectively eliminating health risks associated
with indoor secondhand smoke exposure is to stop smoking
activity in buildings.
• Secondhand smoke exposure contributes to nearly 42,000
deaths each year in the United States. Reducing the areas
where people are exposed can lead to a decline in deaths from
secondhand smoke.
• Exposure to secondhand smoke increases a child’s risk of lung
problems, ear infections, and severe asthma, and even doubles
an infant’s risk of Sudden Infant Death Syndrome (SIDS).
• Thirdhand smoke is a health hazard that impacts children,
pets, and new owners after smoker has moved out.
5
HOW TO GO SMOKEFREE
Do your
homework
Make a
timeline
Inform
the board
Meet with your attorney
to develop a policy
Survey the condo
owners for options
Educate the owners
& make partnerships
Vote on the
amendment
Post signage on the
property & enforce
the policy
Notify & inform
residents and vendors
Advertise the condo
as smokefree.
It’s an amenity!
the easy way
6
HOW TO GO
SMOKEFREE
Adding a smokefree amenity is simple.
We recommend following these four steps.
1. Educate & gather resident input
2. Design your amenity
3. Implement your amenity
4. Enforce your policy
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8
1. DO YOUR HOMEWORK
Educate yourself on secondhand smoke. Know and understand
the current policies, procedures, bylaws and rules of your building.
Your local Tobacco Free Florida representative can provide you
with information and resources to help make a case to your board.
2. INFORM THE BOARD
Meet with board members to bring up the idea of implementing a
smokefree policy, and educate them on the benefits.
3. SURVEY RESIDENTS
Surveys will give everyone the chance to give their input and
opinion. See an example of a resident survey in the appendix.
4. EDUCATE & INFORM OWNERS
Send out letters, start a petition, and/or hold open discussions
early when creating your smokefree amenity. Make sure to
make educational and smoking cessation materials available to
everyone.
5. CONNECT WITH PARTNERS
& GATHER RESOURCES
Connect with your local Tobacco Free Florida representative
and/or AHEC Tobacco Cessation Specialists to help you support
residents during this transition. Consider seeking advice from
other communities with a smokefree amenity.
6. ADVOCATE FOR CHANGE
Build support among owners, both smokers and nonsmokers.
Listen to concerns, share health safety facts, economic benefits,
and remind them that the policy is about the smoke, not the
smoker.
STEP ONE: EDUCATE &
GATHER RESIDENT INPUT
9
1. CHOOSE A METHOD & DETERMINE
THE EXTENT OF THE SMOKEFREE POLICY
See Methods of Implementing a Smokefree Policy (page 9) to determine which
avenue of change is the best fit for your community.
2. DETERMINE IF THERE WILL BE SMOKING AREAS
Americans for Nonsmokers Rights recommends that designated smoking
areas be located at least 25 feet away from the exterior of any buildings. It
is important to keep these distances in mind for any residential buildings,
entrances, pools or other common areas.
3. TALK TO YOUR ASSOCIATION ATTORNEY
Meet with your condominium lawyer. Doing so will ensure the policy change is
concrete, fair, legally binding, and contains appropriate language.
4. DEFINE THE ACT OF “SMOKING”
“Smoking” should be defined broadly to ensure an effective policy. Make sure
to include e-cigarettes.
5. SET A TIMELINE
Pick a reasonable effective date. About 60 – 180 days after policy approval is a
good place to start.
6. GRANDFATHERING
Determine if current residents will still be allowed to smoke, or “grandfathered”
under the new policy. This is not recommended, but should be addressed in
the policy.
7. ESTABLISH AN ENFORCEMENT COMMITTEE
Identify responsibility for ensuring compliance, and consequences for policy
violation. Smoking-related policy violations should be dealt with similarly to
existing policies and enforcement provisions.
STEP TWO: DESIGN
YOUR AMENITY
What about
e-cigarettes & hookah?
Make sure to include e-cigarettes, hookah
and other products with nicotine in the policy.
E-cigarette aerosol contains dangerous
chemicals, such as formaldehyde and
acetaldehyde, and bystanders can absorb
the nicotine from this aerosol.
For more information regarding
e-cigarettes, visit the Tobacco Free
Florida website or contact your local
Tobacco Free Florida representative.
10
1. BRING THE AMENDMENT TO THE BOARD
Amendments must be voted on by the condominium board,
passing with a supermajority or majority vote. Make sure you
check what your board requires.
2. DON’T VOTE TOO SOON
Wait until you are confident that you have the votes needed
to pass a smokefree amendment before you actually call for
a vote.
3. ADD AMENDMENT TO DOCUMENTS
Add the change to the official governing documents of the
condominium or cooperative. Instruct owners to inform
renters or rental agents of the policy.
4. NOTIFY & INFORM
Notify residents, vendors, contractors and staff of details
surrounding the policy change. Clarify policy violation
consequences, and let residents know their guests are also
responsible for complying. Include the policy, as well as
enforcement procedures, in contracts.
STEP THREE:
IMPLEMENT
YOUR AMENITY
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12
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The following tips can help avoid
enforcement issues & address
violations as they occur.
1. POST SIGNAGE
Post no-smoking signs in common areas, hallways and outside
building entrances. If the board decided to have a designated
smoking area, make sure to post proper signage, install ashtrays,
and locate it at least 25 feet from buildings and amenities.
2. REPAIR & REMOVE
Repair any cigarette damage in common areas. Consider
installing new carpet in and around units where smoke damage
may have occurred. Remove ashtrays from the property, and
clean up cigarette litter. Doing so will discourage people from
violating the nonsmoking policy.
3. ENFORCE THE POLICY
PROMPTLY & CONSISTENTLY
Quickly respond to complaints of smoking and document
where smoke is believed to be coming from. Follow up with
enforcement promptly and fairly. Enforcing the smokefree policy
as any other policy sends a clear message that smoking onsite
is unacceptable, and those responsible will be held accountable.
4. ADVERTISE THE
BUILDING AS SMOKEFREE
Advertise on your website, other communication channels (like
social media), and onsite that your condominium or cooperative
is smokefree. It is an amenity, after all!
STEP FOUR: ENFORCE
YOUR AMENITY
14
IMPORTANT CONSIDERATIONS
FOR A SMOKEFREE POLICY
Considering increased demand for healthy and smokefree
living, policies that prohibit smoking are a sought-after amenity.
Framing the new policy as a “clean air amenity” may attract
new residents and aid in the passing of a vote. A smokefree
policy does not mean that people who smoke cannot live in the
building – it means that the act of smoking is not allowed in the
areas which have been designated as being smokefree.
Smoking can be restricted on the entire property or only in
certain areas. There are different options you can mix and choose
from when developing a smokefree policy. However, restricting
smoking in individual units is the best and most effective option
for ending issues with secondhand smoke.
INDIVIDUAL UNITS: Associations may restrict smoking in individual
units, which would prohibit all current and future owners, renters and
guests from smoking.
LIMITED COMMON AREAS: These areas may include balconies, and
areas near windows and doorways. This option will prevent smoke
from drifting to other residents’ balconies or lanais, and into their
homes.
OUTDOOR COMMON AREAS: These areas include courtyards,
swimming pools, patios, pathways, parking areas, and other common
areas outside. Not only will this option protect residents from
unwanted smoke, it will also reduce cigarette litter on the property.
If you choose to designate a smoking area, be sure it is away from
outdoor recreational areas to avoid secondhand smoke exposure.
INDOOR COMMON AREAS: These areas already have smoking
restrictions in condo complexes, due to the Florida Clean Indoor Air
Act. They include lobbies, elevators, stairwells, mailrooms, laundry
facilities, and other indoor common areas.
To learn more about the FCIAA and how to report violations visit
www.tobaccofreeflorida.com/clean-indoor-air-act.
What areas can be
designated smokefree?
15
1. Make changes to the governing documents (such as the Declaration of Condominium
or, in the case of Cooperatives, the Bylaws or Proprietary Lease “governing
documents”) to prohibit smoking and e-cigarette use in individual units and/or
common areas.
2. Amend the nuisance provision of the governing documents to state that secondhand
smoke and e-cigarette aerosol are considered a “nuisance.”
3. Adopt a rule prohibiting smoking and e-cigarette use in common areas.
Your board should speak with legal counsel as to determine the proper steps to
go smokefree, and discuss any expenses involved. It is not recommended for a
board to attempt to craft or implement a smokefree policy without the assistance of
counsel. Below are some options to take and considerations for going smokefree.
SMOKEFREE
POLICY OPTIONS
AMEND GOVERNING
DOCUMENTS
AMEND NUISANCE
PROVISION
ADOPT
A RULE
VOTING
Requires vote of condo owners, using
formal voting procedures.
Requires vote of condo owners, using
formal voting procedures.
Voted on only by the board, if the board
has rulemaking authority.
ENFORCEMENT
The board has a duty to enforce the governing documents by fining, suspending
common area use rights, restricting the rights of, and/or pursuing arbitration
or injunctive relief against the violator. Individual owners can also enforce
governing documents by suing the noncompliant owner (and possibly by suing
the board if it failed to act to enforce the provision).
The board has a duty to enforce
the rules and can do so by fining,
suspending common area use rights
and/or pursuing arbitration and/or
injunctive relief.
IMPORTANT
CONSIDERATIONS
Requires votes from enough owners to
get passed. Because the owners vote
to change the governing documents,
their participation in the decision may
make them more likely to comply with
the new policy.
Adding smoking to the nuisance
provision would not eliminate smoking
in the condo – it would just allow the
association and homeowners to more
easily use the nuisance provision if
secondhand smoke were entering their
units. This approach may be useful if a
ban on smoking in units isn’t feasible.
Because a rule is only voted on by
the board in most communities, this
approach may work best for making
the common areas nonsmoking – a
less controversial
restriction than
smokefree units. Adopting a smokefree
rule may work better for complexes
where the board actively enforces
rules.
DRAFTING
All options should be written by a lawyer.
There are several ways your
condominium or cooperative
association can add a
smokefree amenity. You can:
*Used with permission from Changelab Solutions
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SMOKEFREE
POLICY OPTIONS
AMEND GOVERNING
DOCUMENTS
PROS: This option is more easily
enforced by the board and condo
owners. Also, it puts the decision
in the hands of the membership,
which will likely avoid a direct conflict
between board members and current
smoking residents. Amendments to the
governing documents are cloaked with
a presumption of reasonableness under
Florida law. As such, legal challenges
to the enforcement of recorded
amendments are more difficult to mount.
CONS: This option requires more formal
procedures that add time and possibly
legal expenses.
VERDICT: This option is usually most
effective, as it is easy to enforce and
does the best job keeping secondhand
smoke out of the home and away from
residents.
AMEND NUISANCE PROVISION
PROS: This amendment would allow
condo and cooperative owners, as well
as the board, to utilize the provision
more than they previously could. Both
the board and condo owners are able
to enforce this option.
CONS: This option would not eliminate
smoking in the community, but will
allow excessive secondhand smoke to
be addressed as a nuisance activity. It
will not create immediate change unless
board members actively enforce it.
VERDICT: This action should only be used
if it is highly unlikely that the membership
will approve an amendment to their
governing documents.
ADOPT A RULE
PROS: In most communities, this type of
rule only has to be voted on by the board.
Therefore, it is easier to pass a new rule.
This option is the least expensive of all
options, since no voting materials must
be prepared.
CONS: The rules can be changed at
any time. It may result in backlash by
owners, since it is only voted on by the
board. Also, due to the nature of how
this change takes place, there is likely
to be limited buy-in from condominium
owners, reducing likelihood that the rule
remains enforceable.
VERDICT: Adopting a smokefree rule
may work better for complexes where
the board actively enforces rules. This
approach may work best for making
the common areas nonsmoking, a less
controversial restriction than smokefree
units.
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REFERENCES
• Allison Kennedy, Sarah Sullivan, Yogi Hendlin, Richard Barnes, and Stanton Glantz (2012 May). Strong Tobacco Control Program Requirements and
Secure Funding Are Not Enough: Lessons from Florida. American Journal of Public Health (Vol 102.5, pp. 807-817). Doi: 10.2105/AJPH.2011.300459
• Americans for Non-Smokers Rights. Preemption of Smokefree Air Laws in Florida [PDF Document]. Retrieved From Lecture Notes Online Web Site:
www.no-smoke.org/goingsmokefree.php?id=132
• Americans for Non-Smoker Rights (2016 April 1). Smokefree Lists, Maps, and Data. Retrieved From: www.no-smoke.org/goingsmokefree.php?id=519
• Bogen. Florida Condo Law Questions and Answers. Retrieved from www.condolaw.com/most­common­florida­condo­laws­used­by­board­members/
• Centers for Disease Control and Prevention (2014). Smoking and Tobacco Use in Florida. Retrieved From: www.cdc.gov/tobacco/data_statistics/state_
data/state_highlights/2012/states/florida/index.htm
• Ducanto, P. J., Cheng, K. C., Avecedo-Bolton, V., Klepeis, N. E., Repace, J. L., Ott, W. R., & Hildemann, L. M. (2013). Identifying and quantifying secondhand
smoke in multiunit homes with tobacco smoke odor complaints. Atmospheric Environment, 71(2013), 399-407. doi: 10.1016/j.atmosenv.2013.02.018
• Hewitt, M. J., Ortland, W. H., Brock, B. E., & Heim, C. J. Secondhand smoke and smokefree policies in owner-occupied multi-unit housing. American Journal
of Preventive Medicine, 43(5), 187-196. doi: 10.1016/j.amepre.2012.07.039 King, B. A., Patel, R., & Babb, S. D. (2014).
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• King, B. A., Peck, R. M., & Babb, S. D. (2013). Cost savings associated with prohibiting smoking in US subsidized housing. American Journal of Preventive
Medicine, 44(6), 631-634. doi: 10.101/j.amepre.2013.01.024
• Legal options for condominium owners exposed to secondhand smoke. Tobacco Control Legal Consortium. https://publichealthlawcenter.org/sites/
default/files/resources/tclc­syn­condos­2006.pdf
• Snyder, K., Vick, H., King, B.A. (2015). Smoke­free Multiunit Housing: A Review of the Scientific Literature. www.ncbi.nlm.nih.gov/pubmed/25566811
• McFadden, B., Ortland, W., Riley, R. Understanding Legal Issues in Smoke-Free Multi-Housing [PDF Document]. Retrieved from Lecture Notes Online Web
site: www.mnsmokefreehousing.org
• Oregon Smokefree Housing Project (OHSP). (2012). A guide to no-smoking policies for community association board, managers, attorneys, and
condominium developers. Oregon Health Authority. Retrieved from: mysmokefreehousing.org/pdf/CondoToolkitOR.pdf
• Prevalence of smokefree home rules - United States, 1992-1993 and 2010-2011. Centers for Disease Control and Prevention Morbidity and Mortality
Weekly Report, 63(35), 765-769. Retrieved from: www.cdc.gov/mmwr/preview/mmwrhtml/mm6335a1.htm
• Public Health Law Center (2016). Housing. Retrieved From: https://publichealthlawcenter.org/topics/tobacco-control/smoking-regulation/housing
• Starr, Joyce (2013). Smoke Free Condos: How we Restricted Smoking Inside Condominiums Associated Units and Declared Secondhand Smoke a Nuisance.
Florida: Starr Publishing. Print.
• The Center for Public Health & Tobacco Policy. (2012). New York guide to smoke-free condominiums. Smoke Free housing of New York. Retrieved from:
www.tobaccopolicycenter.org/documents/2012.4.24%20SF%20Condo%20Guide%20FINAL.pdf
• Hennrikus D, Pentel PR, Sandell SD. Preferences and practices among renters regarding smoking restrictions in apartment buildings. Tob Control
2003;12:189-94.
• Centers for Disease Control and Prevention. Behavioral Risk Factor Surveillance System Survey Data. Atlanta, Georgia: U.S. Department of Health and
Human Services, Centers for Disease Control and Prevention, 2010 - See more at: www.tobaccofreeflorida.com/current­issues/smoke­free­housing­the­
issue/#sthash.AB5ONgAi.dpuf
• Samantha K. Graff. 2008. There is no constitutional right to smoke: 2008, Tobacco Control Legal Consortium.
• Marty Ahrens, Home Structure Fires, National Fire Protection Association; 2011. www.nfpa.org/assets/files/PDF/HomesExecSum.pdf.
• Center for Energy and Environment. Reduction of Environmental Tobacco Smoke Transfer in Minnesota Multifamily Buildings Using Air Sealing and
Ventilation Treatments. (Minneapolis, MN: 2004.)
• American Society of Heating, Refrigerating and Air-Conditioning Engineers (2010) ASHRAE Position Document on environmental tobacco smoke
• Centers for Disease Control and Prevention (2015). Smoking and Tobacco Use Fast Facts. www.cdc.gov/tobacco/data_statistics/fact_sheets/fast_facts/
REFERENCES
19
A. Frequently Asked Questions
B. Reducing Your Liability
C. Sample Resident Survey
D. Additional Resources
APPENDIX
20
FREQUENTLY
ASKED QUESTIONS
IS IT DIFFICULT TO ENFORCE A SMOKEFREE POLICY?
As with other association rules, like prohibiting loud music or
overcrowding, it is important to create a clear policy with set
consequences for policy violations. Further, enforcement must be
prompt and consistent.
Enforcement may be progressive – perhaps starting with written
warnings and increasing to fines. Be sure to consult with those
responsible for ensuring compliance to ensure that the enforcement
scheme is realistic. A smokefree policy is largely self-enforcing.
Properties that have already adopted smokefree policies report
needing minimal effort to enforce the policy.
IS ADDING A SMOKEFREE AMENITY EXPENSIVE?
Costs may be nominal and limited to printing (educational materials,
surveys, signs, etc.), and filing fees to record the bylaw amendment.
Your association may incur additional costs if it opts to hire an attorney
to assist with the drafting process, or elects to construct an outdoor
smoking area. Consider any costs an investment in the building and
your health. Unlike costly cleaning and mechanical devices, an effective
smokefree policy eliminates smoke hazards and reduces related
health risks and discomfort. Communities with smokefree policies
may even enjoy savings on insurance costs and building maintenance
and experience a rise in market value.
ARE THERE ANY LEGAL BARRIERS TO ADOPTING
A SMOKEFREE POLICY FOR COMMUNITY
ASSOCIATIONS?
Federal and state laws allow private property owners and associations
to adopt a smokefree policy for all parts of their property, including
individual residential units.
IS SMOKING A PROTECTED RIGHT?
No. There is no such thing as a “Constitutional right to smoke.” The
United States Constitution does not extend special protection to the
decision to smoke. The fundamental right to privacy does not apply
to smoking. Smoking is not a protected right under the Due Process
Clause of the Constitution.
ARE SMOKEFREE POLICIES DISCRIMINATORY?
No. Nicotine addiction does not entitle anyone to special protections
under
federal or state anti-discrimination
laws. Numerous
condominiums in Florida are already smokefree, and many new
developments are smokefree from the start. Smokefree policies do
not discriminate against those who smoke or use e-cigarettes. Rather,
they prohibit a type of behavior while in the unit or building. Anyone
is welcome to live in a smokefree community provided they follow the
rule.
“Going smokefree is one of the best
things I have done in my career as
a property manager.”
Mitzy Cordova, Wendover Management LLC.
21
WILL LEGAL LIABILITY INCREASE AFTER
A SMOKEFREE POLICY IS INSTITUTED?
No. Condominium associations have a duty to act in the best interests
of its members. Regardless of whether or not the association has a
smokefree policy, owners may successfully argue that the association
must act to stop secondhand smoke. Implementing a smokefree policy
should deter smoking on the property, decreasing the likelihood of
liability claims.
The condominium association should routinely and uniformly enforce
the smokefree policy like any other rule. Your association should
speak to its legal counsel about the various options to address the
claims of existing smokers for grandfathered status.
WHAT RISKS DOES AN ASSOCIATION FACE
BY CONTINUING TO ALLOW SMOKING?
If an association continues to allow smoking, anyone negatively
affected by secondhand smoke exposure can take legal action against
the offending resident or the association. Some condo owners have
sued on the basis of nuisance, breach of fiduciary duty, breach of
statutory duty to keep the premises habitable, breach of the common
law covenant of peaceful enjoyment, negligence, harassment,
battery, and intentional infliction of emotional distress. In several
recent incidents, state courts have ruled against multiunit housing
owners and managers, ordering significant rent reductions and other
penalties.
FREQUENTLY
ASKED QUESTIONS
22
Some owners who are frustrated by their associations’ failure to
control smoking in their building may seek to hold the association
liable for the harmful environment created by secondhand smoke in
common areas or individual units. The potential legal liability can be
avoided by eliminating smoking.
COMMON LAW ACTION EXAMPLES
A resident can sue either the association or the offending resident on
the common law grounds. This is an example from a previous court
case:
MERRILL V. BOSSER
In 2005, a Florida resident was smoking excessively in his condominium
to the point where the smoke alarm went off in the neighboring
unit. One family living in a nearby unit experienced negative side
effects from exposure to secondhand smoke due to a family history
of respiratory allergies. The affected neighbor complained and the
offending resident was evicted on technical grounds. The defendant
(the owner, not the tenant), was found guilty of trespassing, nuisance,
and breach of covenant. The complainant was awarded $1,000 in
damages.
If an individual has a serious health condition that is affected by
exposure to secondhand smoke, he or she may be able to get some
relief by using one of the disability statutes.
TENANT V. MAGNOLIA WALK APARTMENTS II
In 2011, a disabled tenant living in an apartment complex in Ocala,
Florida was affected by secondhand smoke entering her unit. After
she was diagnosed with chronic bronchitis and advised to avoid
cigarette smoke, the resident brought an action against her building’s
management company for their failure to provide a reasonable
accommodation for her disability. The defendant was charged with
discrimination and ordered to compensate the affected party for her
economic loss, including but not limited to: out-of-pocket expenses,
emotional and physical distress, embarrassment, humiliation,
inconvenience, and any and all other damages caused by Respondents’
discriminatory conduct in violation of the Act.
GRANDFATHERING
Some current smokers may be against the new policy, and may suggest
that some units be grandfathered under a new policy. Allowing current
resident smokers to continue smoking in their units after the policy has
gone into effect is not recommended – particularly when a smokefree
policy is being considered as a result of one resident’s secondhand
smoke impacting another unit. Doing so can cause confusion about
the application and enforcement of the policy among other residents,
and fail to mitigate the negative impacts of secondhand smoke in the
building. If board members insist on grandfathering units, the policy
must include language that clearly states that grandfathered units will
not be exempt from complaints under the nuisance provision.
REDUCE THE POTENTIAL
LEGAL LIABILITY
23
SAMPLE RESIDENT SURVEY
Due to recent concerns about smoke and e-cigarette aerosol getting
into homes where it is not wanted, we are currently reviewing our
smoking policy. Your input will help us determine the best way to
address these concerns in our community.
1. Do you allow smoking or vaping in your home?

Yes

No
2. Has anyone smoked or vaped anything in your apartment
in the past 30 days?

Yes

No
3. Have you ever smelled smoke or e-cigarette aerosol
in your home that comes from another unit or outside?

Yes

No
4. Would/does smelling smoke or e-cigarette aerosol
in your home bother you?

Yes

No
5. Do any minors (under 18 years old) live in your
unit or visit it regularly?

Yes

No
6. Do any seniors age 65 or higher
live in your unit or visit it regularly?

Yes

No
7. Does anyone who suffers from a chronic illness such as asthma,
chronic bronchitis, heart disease, diabetes, arthritis, or cancer
(or a cancer survivor) live in your unit or visit it regularly?

Yes

No
8. Would you prefer to live in a non-smoking building
so smoke from nearby units can’t get into your home?

Yes

No
9. Would you prefer to live in a community where smoking
is prohibited in outdoor areas such as balconies, the pool,
and other activity areas?

Yes

No
Thank you for your input. Please leave any additional comments
on the back of this sheet. Return your survey in the enclosed
privacy envelope by
(date).
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SAMPLE RESIDENT POLICY
1. No owner, family member, tenant, resident, guest, business invitee,
or visitor shall smoke cigarettes, cigars, or any other tobacco
product, marijuana or illegal substance in outside common
areas, enclosed common areas, and exclusive use common areas
(balconies and patios included) within the project. guidelines to match those in the title.>
2. “Smoking” shall include the inhaling, exhaling, burning, or carrying
of any lit cigarette, cigar or other tobacco product, marijuana, or
illegal substance.
3. “Business invitee” shall include, but is not limited to, any contractor,
agent, household worker, or other person hired by the owner,
tenant or resident to provide a service or product to the owner,
tenant, or resident.
4. Any owner who sells his/her unit shall specifically disclose to all
potential buyers and Realtors that smoking is prohibited within all
common areas in the project. Any owner who rents or otherwise
allows someone other than the owner to reside within or occupy
the unit shall disclose to all persons who reside within his/her unit
that smoking is prohibited within all common areas prior to their
residency or occupancy.
5. Each owner is responsible for the actions of all other persons
residing within or visiting his/her unit and shall be subject to
disciplinary action or court action for an injunction, or any remedies
available for the violation of this section. This section may be
enforced in a court of law by any resident or the association. If
any resident or the association is required to hire legal counsel
to enforce this section, the resident or the association shall be
entitled to recover his/her or its attorney’s fees and costs incurred,
whether or not litigation has been commenced. The association
may collect the attorney’s fees and costs it incurs through the use
of a special assessment levied against the owner of the unit and an
assessment lien, if necessary.
6. The Board of Directors shall have the authority and power to
enact rules and regulations which it deems necessary to enforce
this restriction, including a schedule of fines which may be
imposed after notice and a hearing, as described in the Rules and
Regulations.
Note: Drifting smoke from within a unit that enters another unit is also
prohibited and will be enforced under the nuisance provision of the
Governing Documents . Violation of any provision of the Governing
Documents or Rules & Regulations may result in fines.
(MaineCondoPolicy.doc)
SMOKING IS NOT ALLOWED IN
Under the Rules and Regulations of the :
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TOBACCO FREE FLORIDA RESOURCES
• Smokefree housing: tobaccofreeflorida.com/smokefree­housing/
• Find your local Tobacco Free Florida representative:
tobaccofreeflorida.com/get­involved/
• Resources to quit to tobacco: tobaccofreeflorida.com/
quityourway/
FACT SHEETS
• Legal fact sheet: https://publichealthlawcenter.org/topics/
tobacco-control/smoke-free-tobacco-free-places/housing
• CDC Florida fact sheet: www.cdc.gov/tobacco/about/osh/state-
fact­sheets/florida/
• Secondhand smoke and disability: no-smoke.org/legal-
requirements-protect-nonsmokers/
FLORIDA LAWS
• Protecting from secondhand smoke does not infringe on
anyone’s rights: www.leg.state.fl.us/statutes/index.cfm?App_
mode=Display_Statute&URL=0700-0799/0760/0760.html
• The Florida Clean Indoor Air Act: www.leg.state.
fl.us/statutes/index.cfm?App_mode=Display_
Statute&URL=0300-0399/0386/0386.html
• Landlord/tenant statutes: www.leg.state.fl.us/Statutes/index.
cfm?App_mode=Display_Statute&URL=0000-0099/0083/0083.
html
• Abatement of nuisances: www.flsenate.gov/laws/
statutes/2011/60.05
ADDITIONAL
RESOURCES
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This Smokefree Condominium guide
is based on one developed by

The Florida Department of Health in Collier County with assistance from
The Tobacco-Free Collier Partnership. Special thanks to Melissa Peacock,

Allyson Bennett, and Robert Ostbye for their work authoring the Collier County
guide. Additional thanks to the Oregon Smokefree Housing Project and the
Center for Public Health and Tobacco Policy whose smokefree condo guides
informed the Collier County guide and this one. Legal advice for this guide was
provided by Donna DiMaggio Berger, Esq., at Becker and Poliakoff.
ABOUT TOBACCO FREE FLORIDA
The department’s Tobacco Free Florida campaign is a statewide cessation
and prevention campaign funded by Florida’s tobacco settlement fund.
Since
the program began in 2007, more than 212,000 Floridians have
successfully quit using one of Tobacco Free Florida’s free tools and services. There
are now approximately 451,000 fewer adult smokers in Florida than there was 10
years ago, and the state has saved $17.7 billion in health care costs. To learn
more about
Tobacco
Free Florida’s Quit Your Way
services,
visit
www.tobaccofreeflorida.com or
follow
the campaign on Facebook at
www.facebook.com/TobaccoFreeFlorida or on Twitter at www.twitter.com/
tobaccofreefla.
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2019 Tobacco Free Florida