An association may enact a rule banning smoking in common areas, and can probably ban it in individual units/homes as well. However, an association must consider several potential risks and benefits before enacting such a rule. We generally treat tobacco, marijuana, and vaping any substance the same way in adopting and enforcing community association rules.

Association’s authority to enact no-smoking rules

Neither federal nor state anti-discrimination laws prevent associations from adopting no-smoking rules for all parts of the community, including individual residential units. Smokers are not a protected category of persons, and smoking is not a protected right or activity under the federal Fair Housing Act or Washington’s Law Against Discrimination.  Attempts by smokers to be considered disabled due to an addiction to nicotine have not been successful, so tobacco smokers do not receive protection or reasonable accommodation under federal or state disability statutes. Marijuana smokers also do not qualify for accommodation.

Additionally, Washington state law expressly prohibits smoking in most public places and work places. A “public place” is any enclosed area open to the public. This could include a community clubhouse or store if it is open to the public. A “workplace” is every enclosed area under the control of a public or private employer that employees frequent during the course of their regular duties. This could be lobbies, hallways, community rooms, etc. In addition, smoking is prohibited within 25 feet of all business entrances, exits, operable windows, and air intake vents.

Given the state of the law, there is nothing to limit an association’s authority, pursuant to its Governing Documents, to establish rules and regulations for common areas and limited common areas. Enacting a no-smoking rule that applies in such areas will likely require no more than a vote of the majority of Board members. Once the rule is enacted, the Board must give notice of the rule change to owners before enforcement.

Washington courts have yet to determine whether an association may prohibit smoking inside an owner’s unit or home—an area that is not generally subject to the Board’s authority. However, a Colorado court concluded that condominium associations have the authority to adopt an amendment to the Declaration prohibiting smoking within units where a resident’s smoking inside a unit interferes with the neighbors’ use and enjoyment of their own units.  Given the recent movement toward a smoke-free society, the ubiquitous understanding of the health risks related to secondhand smoke, and the fact that no laws expressly prohibit associations from banning smoking in units or homes, Washington courts are likely to apply this reasoning. This would probably be considered a “restriction on use” and require a Declaration amendment.

In light of the growing trend towards legalization of marijuana, associations that adopt no-smoking rules should ensure that the language does not refer to “tobacco” specifically, but rather to both tobacco and marijuana smoke (and perhaps even include any inhaled substance/vapor). With respect to medical marijuana specifically, it is unlikely that any Washington court would require an association to make an accommodation to smoke marijuana on the premises.  First, because marijuana is still illegal under federal law, the use of marijuana in any form would not be deemed “reasonable” under the FHA (a federal statute). Second, even if an association were required to permit the use of medical marijuana in some form, it is unlikely the court would require an association to permit smoking marijuana because the resident could use marijuana in other forms that were less offensive to other residents.

Stay tuned for Part 2 which will discuss methods of enacting a no-smoking rule, risks and benefits of such a rule, and more…