Complaints about drifting smoke are among the hardest for a community association to resolve. Smoke from a balcony, a patio, or a neighboring unit can enter another home through doors, windows, and shared walls. What can be done depends on state law, on the governing documents, and on how carefully the process is followed.
This article is general information and is not legal advice. The association's attorney should be consulted.
What Florida Law Does and Does Not Cover
Smoking and vaping are prohibited in an enclosed indoor workplace by the Florida Clean Indoor Air Act, at section 386.204 of the Florida Statutes. An enclosed indoor workplace is defined in the Act as a place where one or more persons engage in work and that is predominantly or totally enclosed. Indoor spaces of an association where staff or vendors work, such as a management office, may fall within that definition, and the attorney should be asked how the Act applies to a particular clubhouse or lobby.
A private residence is listed among the exceptions in section 386.2045, as long as it is not being used commercially to provide child care, adult care, or health care. In other words, smoking inside a home or unit is not prohibited by the Act. The question is left to the association's own documents.
Where an Association's Authority Comes From
Two sources of authority are normally relied on.
The declaration. Restrictions on how units, lots, and common areas are used are set by the recorded declaration. A smoking restriction that reaches inside homes or onto private balconies and patios is best placed there, by amendment.
Board rules. Reasonable rules for the common areas may usually be adopted by the board when that power is granted in the governing documents. Smoking at the pool deck, in the clubhouse, in hallways, or near building entrances is commonly addressed this way.
How a Smoking Restriction Is Adopted
A change to the declaration follows the amendment process written in the documents. A vote of the owners is required, and the approved amendment is recorded in the county's public records. For condominiums, the general amendment rules are found in section 718.110. Where a condominium declaration is silent on the method, approval by the owners of at least two-thirds of the units is required by that section.
Before a vote is held, several points should be settled with the attorney:
- Which areas are covered: common areas only, balconies and patios, or the inside of units
- Whether vaping and other smoking products are included
- Whether current residents will be exempted for a period of time
- Whether a designated outdoor smoking area will be provided
- How the restriction will be enforced
A board meeting at which a rule about unit or parcel use will be considered requires 14 days' notice to the owners, in place of the usual 48-hour posting.
The Nuisance Clause
A nuisance clause is found in nearly every declaration. Activities that unreasonably interfere with other residents' use and enjoyment of their homes are prohibited by it. Where no smoking restriction exists, persistent smoke entering a neighboring home may be treated by the board as a nuisance.
This route has limits. Whether a nuisance exists is a judgment call, and it must be supported by evidence such as dates, times, and duration. A clear written restriction is easier to apply and easier to defend. Related guidance can be found in our post on
when HOAs and COAs are liable for neighbor-to-neighbor harassment.
Enforcement
Once a restriction is in place, it must be enforced evenly by the board, whose duties are described in
the role of the board of directors. The usual steps are a courtesy letter, a formal violation notice, and then a fine or a suspension of common-area use rights. Before a fine or suspension is imposed, at least 14 days' written notice and an opportunity for a hearing before an independent committee must be given, as required by sections 720.305 and 718.303.
Legal action is available to the association and to individual owners, and reasonable attorney fees are awarded to the prevailing party under those same sections. A lawsuit should be treated as the last step.
Steps for a Resident Affected by Smoke
- The neighbor should be approached politely first. The smoker is often unaware that smoke is reaching another home.
- A written log should be kept with dates, times, and where the smoke was noticed.
- The governing documents and rules should be checked for a smoking restriction or a nuisance clause.
- A written complaint, with the log attached, should be sent to the manager or the board.
- If no restriction exists, an amendment may be proposed to the board or petitioned for by the owners.
Help With Rules and Enforcement
Rule drafting support, owner notices, and violation tracking are handled for the communities managed by Condominium Associates. To talk about a smoking policy for your community,
contact us.
