By:  Robert M. Meisner, Esq.

September 26, 2012

            Most Michigan residents are familiar with the Dr. Ron Davis Smoke-Free Air Law of 2009; if not by name, then by its radical ban of smoking in Michigan’s restaurants and taverns.  It is hard to imagine another law that has changed our daily lives more.  The Act, and others like it around the country, is based on mounting research on the health risks of secondhand tobacco smoke to nonsmokers who share an enclosed place with smokers.  While most Michigan residents approve of the law, roughly one fifth of all adults in Michigan still smoke tobacco. This can create highly charged debates for condominium associations.  How are the rights of smokers and nonsmokers balanced in condominiums where units often share common hallways, walls and HVAC systems?  Can smoking be banned throughout a condominium, including inside co-owners’ individual units?  Consider that earlier this year the Real Estate Board of New York proposed a guideline banning smoking in the public and private areas of all New York City condominiums and co-ops.

With a number of exceptions, such as cigar bars, the Smoke-Free Act applies to (1) indoor places owned or operated by the government, (2) specific indoor places used by the public, such as schools and arenas and (3) places of employment.  Condominiums are neither public places nor are they one of the exceptions specifically referenced in the Act.  Despite this, the Frequently Asked Questions section on the Smoke Free Act on the State’s official website, states: “All indoor common areas of apartment and condominium buildings must be smoke-free as of May 1, 2010.”  The State of Michigan’s position is obviously based on the assumption that such indoor common areas are “places of employment.”  The   “places of employment” exception to the Act provides a significant catchall by which the Act can arguably be applied to nearly any private enclosed area.  The Act defines a work area as, “a site within a place of employment at which 1 or more employees perform services for an employer.”  The Act contains no minimum amount of working hours and only requires one employee for the Act to apply.  This definition is so vague it is almost certainly headed for litigation.  How often must an employee perform services in an area; once a week, once a month, once a year? 

The Frequently Asked Questions section of goes on to state, “However, owners of apartment and condominium buildings are free to adopt smoke-free policies for their buildings which make the entire building smoke-free, including all living units.”  Prior to the Smoke-Free Act in 1992, Michigan’s Attorney General Frank Kelley issued opinion 6719, which stated, “It is my opinion, therefore, that neither state nor federal law prohibits a privately-owned apartment complex from renting to non-smokers or, in the alternative, restricting smokers to certain buildings within an apartment complex.”  It appears that a new condominium could establish itself from its inception as being smoke free in both the common elements and individual units.  The question remains, could an existing condominium with co-owners who are both smokers and non-smokers convert its common and private units into a smoke free facility?

In the 1995 case City of North Miami v Kurtz, the Florida Supreme Court held that smoking was not a fundamental right protected by the Constitution. In that ruling, the court upheld a city regulation requiring all city employees to sign an affidavit stating that they had been nonsmokers for at least one year.  Although this ruling is limited to Florida, it provides a powerful argument against any claim or defense raised by a smoker based on Constitutional law. Nationwide, court rulings have been mixed on whether tobacco smoke constitutes a legal nuisance.  In 2011, in Ewen v Maccherone, the New York Supreme Court held that the defendant’s smoking was not so unreasonable as to constitute a nuisance.  However in 2005 in Merill v Bosser a Florida trial court found secondhand smoke to be so pervasive as to be a nuisance and issued an injunction prohibiting owners from smoking inside their own units.  A finding of nuisance depends on the facts of each case.  The strongest argument in favor of grandfathering in existing smokers appears to be that a co-owner should be able to rely on the rules and by-laws that existed at that time they purchased their unit.  This argument is more emotionally compelling thAn it is legally compelling.  Condominium rules and by-laws are frequently changed and the courts strongly presume that such changes and amendments are valid.

In 2006, in Christiansen v Heritage Hills1 Condo. Owners Ass’n  a Colorado court took on the issue of whether a condominium association could institute a total smoking ban that applied to the individual units of co-owners.  The Christiansen court concluded that the association could ban smoking throughout the entire condominium, including inside co-owners’ individual units.  Testimony in the case stated that multiple co-owners complained of “an almost constant smell of cigarette smoke.”  The court found that based on these facts the tobacco smoke did constitute a nuisance.  Although the court did acknowledge that the ban came after the smokers had purchased their units, it responded with a quote from a California opinion Lamden v La Jolla Shores Condominium Homeowners Ass’n:

Anyone who buys a unit in a common interest development with knowledge of its owners association’s discretionary power accepts the risk that the power may be used in a way that benefits the commonality but harms the individual.

One interesting fact in Christansen is that under Colorado law, an approval vote of 75% was required to pass the amendment/smoking ban.

Prior to instituting a total smoking ban, it would be prudent for an association to first consult with knowledgeable counsel who specializes in such issues.  It may then wish to have a town hall style meeting on the issue and seek the concurrence of all the Co-owners.  Finally, in order to keep peace in the association, it may consider phasing in the ban; allow smoking to continue outside, or grandfathering in existing co-owners who smoke. However, it appears that the legal and public environment is ripe to support an association to totally ban smoking in all enclosed areas including inside the units of co-owners who presently smoke.  At this point, such a smoking ban is not mandatory under the law and would instead be the choice of individual associations.  If an association wishes to enact a smoking ban, an amendment to the condominium’s by-laws is suggested.  In most associations, this will require an approval of a super majority of the co-owners.  However, individual nonsmoking co-owners are free to take legal action against individual smoking co-owners, on grounds such as nuisance, regardless if the association acts or not.

ROBERT M. MEISNER, is a practicing attorney of over 40 years and founding member of the Bingham Farms law firm of The Meisner Law Group, P.C., 248-644-4433,  Mr. Meisner is Michigan’s first inductee into CAI’s College of Community Association Lawyers (CCAL).  In 2012, for the fourth year in a row, he has been selected to the Top Michigan Super Lawyers, and has been designated as a top Metro Detroit attorney in the field of Condominium Law by dbusiness Journal in 2010. Robert Meisner is co-draftsperson of the 1978 Michigan Condominium Act and contributor to the 2001-2002 Amendments thereto. Mr. Meisner has been general legal counsel to United Condominium Owners of Michigan (UCOM) since its inception in 1973.  He is legal counsel to numerous community associations and developers. Mr. Meisner authored Condo Living, A Survival Guide to Buying, Owning and Selling a Condominium; as well as Condominium Operation: Getting Started and Staying on the Right Track, and many other articles; he is also a featured newspaper columnist with the Observer & Eccentric and Hometown newspapers. Mr. Meisner has lectured before many professional education programs, including both the Community Association Institute’s National and Michigan Chapter, and the Institute of Continuing Legal Education. He has been an adjunct professor of law for Cooley Law School and MSU College of Law where he taught community association and condominium law. He has been an instructor of condominium operation courses for over 35 years at colleges and/or universities in the State of Michigan. He is a facilitative mediator, trained in the Michigan Supreme Court’s alternate dispute resolution rules and certified by the Oakland County Bar Association to conduct facilitative mediations. Mr. Meisner holds a B.A. from the University of Michigan, a J.D. from the University of Michigan Law School, and is a licensed real estate broker.