Clearing the Air on Smoking in a Condo

Did the smoking ban violate any public policy? The judge took into consideration that the Colorado Legislature had enacted laws dealing with smoking and thus the amendment was consistent with public policy of the state.

Finally, the judge dismissed the argument that the ban was unconstitutional. According to the judge, "courts have not specifically extended the protections of the Fourteenth Amendment to a fundamental right to smoke. . . . This is especially true here where plaintiff's private activities are impacting so negatively on the remainder of the community that they chose to join."

Tom Hindman, the Colorado lawyer whose firm represented the association, has told me that the case, Christiansen v. Heritage Hills 1 Condominium Association, was never appealed. Accordingly, even though it is a decision of a lower court, it stands as good law in Colorado.

Does that mean that your association could adopt such an amendment? There's no way to know. The facts are quite specific to that case: a small, four-unit building; unsuccessful attempts to negotiate a resolution with the smokers; and lots of dollars spent in an effort to curb the smoke.

Nevertheless, it remains an option for boards of directors to consider. What is clear, however, is that any such prohibition must be accomplished by an amendment to the association's bylaws or declaration; the board cannot impose a smoking ban simply by adoption of a rule or regulation.

This is a highly controversial and emotional issue. Indeed, at an earlier meeting of the Colorado condominium association on this issue, the police were called to stop the heated debate, which included allegations of harassment and abuse.

Full and open discussions must take place with all unit owners -- smokers and nonsmokers alike. Perhaps some compromise can be reached, such as allowing smoking in designated areas. In older buildings, structural engineers should be retained to recommend possible solutions.

But when all else fails, perhaps an amendment will work.

Benny L. Kass is a Washington lawyer. For a free copy of the booklet "A Guide to Settlement on Your New Home," send a self-addressed stamped envelope to Benny L. Kass, 1050 17th St. NW, Suite 1100, Washington, D.C. 20036. Readers may also send questions to him at that address or contact him through his Web site, http://www.kmklawyers.com.