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Snuffing Out Smoking in Associations
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Minnesota Community Living May/June 2011

Snuffing Out Smoking in Associations

By Nigel H. Mendez, Esq., Carlson & Associates, Ltd.

There is a growing trend in the country to restrict cigarette smoking in places where it can affect non-smokers. In community associations, the fact that many buildings are connected together makes it likely that air is exchanged between units allowing secondhand smoke to seep into a unit from a neighboring unit. Smoke can travel through open windows, cracks in the base of walls, small holes in the walls or ceilings and through ventilation systems. Some states have passed legislation that specifically allows community associations to restrict or prohibit the right to smoke on association property, and even in private units. In 2006, Utah passed a statute to classify secondhand smoke as a nuisance1. California has decreed that secondhand smoke is a toxic air pollutant. Minnesota has legislation that prohibits smoking in indoor public places, which includes common areas of apartments. While Minnesota does not have legislation that automatically bans smoking in community associations, the State does provide associations with the ability to restrict smoking.

The Minnesota Common Interest Ownership Act (MCIOA) allows for associations covered by MCIOA2 to impose "material restrictions” on the use of a unit.3 This means that an association is legally able to state in the declaration that smoking is not allowed anywhere on the premises, even inside of an individual unit. In addition, under MCIOA, associations are able to enact rules and regulations that govern the use of common elements and regulate the use of the units (including the conduct of unit occupants), which may jeopardize the health, safety or welfare of other occupants, or disturb other units.4 The U.S. and Minnesota Constitutions do not classify smokers as a protected class (such as race, religion, etc.). Likewise, there is no constitutional right to smoke in Minnesota. In addition, courts have ruled that an addiction to nicotine is not a disability that would be protected by the Americans With Disabilities Act (ADA).5

Restricting Smoking 
A smoking restricted association can be established in one of three ways: by incorporating language into the declaration that creates the association, enacting a rule, or amending the existing declaration.

A developer of an association can create a smoke-free environment by adding the appropriate language to the declaration when initially creating an association. A potential purchaser of a unit will be informed that smoking is not allowed in the association.

A change to the rules is the easiest way to limit smoking in an existing association. The ability to impose rules and regulations in an association is a power that is granted to the board of directors. The board votes on the issue at a meeting, and the rule becomes effective once properly distributed to all members of the association. While it may be the easiest way to impose a smoking restriction, it is also the weakest. As rules are created and changed by the board, new boards can simply change the smoking restrictions. Rules are also subject to judicial challenge. As the rules and regulations are created by a subset of the members, a court may strike a smoking restriction as being overly restrictive. While a rule or regulation could be enacted without the advice of counsel (and many are) in a matter as heated a smoking, it is recommended that a board consult with their attorney to ensure that the necessary language is used and the proper process is followed.

An amendment to the declaration is another way to impose smoking restrictions in an existing association. Declaration amendments are voted on by the entire membership and are more permanent than a rule. In other states, declaration amendments to restrict smoking have been upheld by the courts. To data, Minnesota courts have not ruled on the issue. The biggest downside to amending the declaration is the higher cost involved. Unlike a rule and regulation change, the declaration amendment is a change to a recorded document. The amendment should be drafted by an attorney and must be recorded with the county.

Existing Smokers 
To allow for easier passage and enforcement of the smoking restrictions, it is recommended that an association grandfather in existing unit owners that currently smoke. When a unit transfers to a new owner, the unit will then become a non-smoking unit. Tenants should be grandfathered through the end of their current lease, and subsequent tenants must be non-smokers.

The information contained in this article is general information and should not be considered legal advice for a specific fact situation. To ensure that the proper procedure is followed and necessary language is included, it is recommended that you contact your legal representative to discuss moving towards a smoke-free association.

1. Utah Code 78-38-1
2. MCIOA automatically covers all condominium associations in the state and common interest communities (single family or townhomes) formed on or after June 1, 1994. In addition, CICs created prior to June 1, 1994 can ‘opt-in’ to MCIOA.
3. Minn. Stat. §515B.2-105(11)
4. Minn.Stat. §515B.3-102(a)(1)(i) &(ii)
5.Brashear v. Simms, 138 F.Supp.2d 693 (D. Md., 2001)

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