Is Secondhand Smoke A Violation Of Florida Condo Laws?
Data from the U.S. Centers for Disease Control (CDC) show that between 2005 and 2020, the number of U.S. adults who regularly smoke cigarettes has declined from roughly 21 percent down to 12.5 percent. Smoking has also become more and more proscribed in public – but in some cases, smoking can be a nuisance to one’s neighbors, as well – even if done inside the privacy of one’s own home. Florida law does not currently regulate secondhand smoke, but in general, condo boards are able to, and their decisions may vary amongst themselves.
Indoor & Outdoor Regulations Differ
Florida law prohibits smoking in public areas, and indoor common areas in condominium complexes are explicitly included in this ban. The ability to regulate smoking in outdoor common areas like poolside are more often left up to the condo board, but as long as the board is recognized as having the authority to make those regulations, and the rule is reasonable, they will be allowed to do so. There are multiple methods the board may use in order to enact this type of rule, but as long as the rule is not against public policy (that is, it would not shock the conscience of the public), it will generally be upheld.
That said, if you are having a dispute with a neighbor over secondhand smoke, it may be a good idea to check your condo complex’s establishing documents, because some condo associations do classify unit balconies or lanais as ‘limited’ common elements, thus giving the board the authority to regulate smoking in those areas. If a person’s balcony is considered part of their unit, they are more likely to be allowed to smoke on it unless the board specifically intervenes.
Options Not Involving The Association
If you are having problems with a neighbor smoking next door, and your condo board declines to intervene, keep in mind that you have rights of your own, including the right to file suit against the neighbor if the smoke is enough of a nuisance. Florida law gives wide latitude to condo owners to essentially use their property as they see fit, with one significant exception: they cannot use their property in such a way that it “injures” the rights of another owner. If a unit owner’s behavior or activities cause injury to another unit owner, they may be found liable for causing a nuisance.
In general, a person may prevail in a lawsuit of this type if they can show they have been “substantially and unreasonably disturbed,” in spite of others in the area providing evidence that the alleged nuisance did not disturb them. While as of this writing, this issue has not been decided in Hillsborough County, it is worth noting that a Broward County court did specifically classify the secondhand smoke in that case as a nuisance, because it interrupted the plaintiff’s right to the quiet enjoyment of their home. If the problem is particularly egregious, it is not out of the realm of possibility to think that a Hillsborough County or Pinellas County court could do the same.
Contact A Tampa Condominium Association Attorney
As the number of U.S. smokers continues to dwindle over time, fewer and fewer secondhand smoke disputes will appear. For now, if you have been injured by a neighbor’s secondhand smoke, contacting a dedicated Tampa HOA & condo association attorney can possibly be the difference in ensuring you can use your property as you see fit. Attorney Alicia Seward and the Seward Law Office have handled these matters before, and are ready to try and assist you with yours. Contact our office today to schedule a free initial consultation.
Sources:
scholar.google.com/scholar_case?case=1910919478999912194&hl=en&as_sdt=4,10&kqfp=5429477833320997938&kql=168&kqpfp=6513778939361637037#kq
cdc.gov/tobacco/data_statistics/fact_sheets/adult_data/cig_smoking/index.htm
