Smoking Complaints-The Saga Continues

 

Given the municipal smoking ban in public places(1) and the proven harm of secondhand and third hand smoke, many Boards continue to be besieged with complaints from residents of transmission of smoke into their homes. These complaints can range from annoyance with smoke odors to complaints that smoke transmission is life-threatening and renders a home uninhabitable. Most governing documents prohibit residents from engaging in noxious or offensive activities, and residents therefore look to the Board to resolve smoke transmission complaints.

Noxious activities are those defined as physically harmful or destructive to human beings(2). A nuisance is an unreasonable, unwarranted or unlawful use of one’s property that invades the use and enjoyment of the property. However, in determining whether a particular annoyance constitutes a nuisance, a court would consider the effect of the annoyance on the ordinary, reasonable person, rather than an effect on a person who has heightened sensitivities(3). Thus, the determination of whether the conduct is a nuisance is based upon an objective standard. In a condominium situation, the Board determines whether a nuisance exists by ascertaining whether the conduct is unreasonable for the average person residing in the particular type of building property.

The dangers of second hand smoke have been sufficiently established in medical circles for the Board to reasonably conclude that it is justified in imposing abatement requirements.

Assuming the Board is not interested in the spending the time and expense of attempting to adopt a declaration amendment to ban or limit smoking (which requires unit owner approval), the Board may approve Smoking Rules in the same manner it adopts all rules with merely majority Board approval after calling a meeting of the Owners to discuss the proposed rule. The following is a draft Smoking Rule regarding smoke transmission:

“Residents are allowed to smoke in the Units; however, if the smoke emanating from a Unit causes a nuisance or annoyance to other residents, the Board, in its sole discretion, may require the Unit Owner to take one or more of the following steps, at the Unit Owner’s sole cost and expense, to minimize smoke transmission from their Units:

A. Properly and fully seal the Unit;

B. Install an air purifier capable of eliminating smoke including, but not limited to, cigar, cigarette, or pipe smoke;

C. Operate the kitchen and/or bathroom vents when smoking;

D. Confine smoking to rooms of the Unit which do not abut a complaining resident’s Unit.

Failure to comply with this smoking rule will result in the Board exercising one or more of the remedies to which it is entitled to enforce against a Unit Owner pursuant to the Declaration, By-Laws and Illinois Condominium Property Act.”

After the approval of any such Smoking Rules, the Board may fine a Unit Owner for violating the smoking regulations and would have a reasonable basis for assessing fines or even pursuing a lawsuit seeking to prevent a Unit Owner from smoking in the Unit where the smoke emanates to another Unit creating a noxious or offensive activity.

The proposed rule does not specify cigarette or cigar smoke and could be utilized in the event marijuana smoke is causing the annoyance. Given medical marijuana use is currently allowed by statute in Illinois, some associations are now having to deal with the issue of medical marijuana smoke wafting to other units or the common elements and becoming an annoyance to other residents.

The question typically posed is whether authorized individuals with a medical need to smoke medical marijuana must be permitted to smoke whenever and wherever they choose? The answer to that question is “no.” While the Medical Cannabis Act prohibits discrimination against medical marijuana users, the law specifically states that marijuana users do not have a right to smoke in any place they choose (4). Medical marijuana registry card holders must still comply with the association’s governing documents or be subject to applicable association remedies.

1 Chicago Clean Indoor Air Ordinance of 2005.
2 Merriam-Webster’s Collegiate Dictionary.
3 Kolstadvs.Rankin, 543 N.E.2d. 1373 (1989).
4 410 ILL Comp Stat Ann §130/30.

Patricia A. O’Connor

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