Many associations adopted smoking rules years ago, before electronic cigarettes became common. Those rules often refer only to cigarettes, cigars, and pipes. As vaping has grown, boards are being asked whether the old rules apply and, if not, whether vaping can be limited at all. The answer depends largely on the governing documents.
This article is general information and is not legal advice. The association's attorney should be consulted.
Why Vaping Raises New Questions
Vaping devices heat a liquid to produce an aerosol that is inhaled and exhaled. Because nothing is burned, a rule that defines smoking as lighting or burning tobacco may not reach vaping at all. Owners who vape may argue that the rule does not apply to them, and owners who are bothered by vapor drifting into their homes may ask why the board is not acting.
In condominiums and townhomes with shared walls, balconies, and ventilation, complaints about vapor and odor are similar to complaints about smoke. Related concerns are discussed in
clearing the air on secondhand smoke in your HOA.
What Florida Law Already Covers
The Florida Clean Indoor Air Act, in chapter 386 of the Florida Statutes, addresses vaping directly. Under section 386.204, a person may not smoke or vape in an enclosed indoor workplace, except as provided in section 386.2045. Section 386.203 defines vaping as inhaling or exhaling vapor produced by a vapor-generating electronic device.
An enclosed area of association property where people work, such as a clubhouse office, may fall within this law. Private residences that are not used commercially for child care, adult care, or health care are among the listed exceptions. The state law does not, by itself, address vaping inside homes, on balconies, or in outdoor common areas. Those questions are left to the association's governing documents.
Step One: Read the Existing Documents
The declaration, bylaws, and rules should be reviewed for any language on smoking, nuisances, odors, or use of common areas. Key questions include:
- Is "smoking" defined, and is the definition broad enough to include vaping?
- Does a nuisance provision prohibit activities that unreasonably disturb other residents?
- Does the declaration give the board authority to adopt rules for the common areas?
- Do any provisions address conduct inside units or homes?
If the existing definition is broad, the board may be able to apply it to vaping or clarify it by rule. If it is narrow, a change will likely be needed.
Step Two: Rule or Amendment
Board rules. Where the declaration authorizes the board to regulate the use of common areas, a rule limiting vaping in the clubhouse, pool deck, fitness room, and similar areas may be possible. A meeting at which rules regarding parcel or unit use will be considered requires at least 14 days' written notice to owners, under sections 720.303 and 718.112.
Amendments. Restrictions that reach inside units or homes, or that go beyond the board's rulemaking power, usually require an amendment approved by the owners. The required vote is set by the governing documents. When the documents do not provide a method, Florida law sets a default: section 720.306(1)(b) for homeowners associations calls for two-thirds of the voting interests, and section 718.110(1)(a) for condominiums calls for approval by the owners of not less than two-thirds of the units.
Drafting Tips
- Smoking should be defined to include vaping and other electronic devices, using language broad enough to cover future products.
- The areas covered should be listed clearly.
- The rule should explain how complaints are submitted and how violations are handled, including the statutory notice and hearing process before any fine.
- Requests for accommodation based on a disability should be reviewed with the association's attorney.
Language should be drafted or reviewed by an attorney experienced in Florida community association law, since a poorly worded rule can be hard to enforce.
Enforcing the Rule
Once a rule is in place, it should be shared with owners and tenants and enforced consistently. Enforcement steps are covered in
how to properly handle HOA violation notices.
Help With Rules and Amendments
Rule updates, amendment votes, and enforcement are handled for the communities managed by Condominium Associates, working with each association's attorney. To talk about your community's rules,
contact us.
