The United States has done a remarkable job in lowering the number of people who smoke cigarettes. In 1965, nearly half of all Americans smoked cigarettes. Today, the number is closer to 10 percent.
The statistics are not all good, however. While there has been success with cigarettes, the use of vapes and e-cigarettes has nearly tripled over the past five years.
In addition, with the legalization of marijuana, including for medical use, smoking marijuana has significantly increased. Approximately, one in 20 residents in Florida has been approved to use medical marijuana
While there are strong laws about smoking and vaping in public places, how it is regulated in other places is pushing forward. Just a couple of years ago, Florida legislators permitted local governments to ban smoking on the beach and public parks.
Now, there is a growing movement to regulate and prohibit any type of smoking in condominium units, even on the balcony.
With little guidance on the subject in Florida statutes, condominium associations should still be able to limit or prohibit the amount of smoking or vaping in units for two main reasons:
- The damage to the commonly owned portions of the condominium building and,
- The potential medical issues posed by second-hand smoke, particularly those with asthma and other respiratory diseases.
Regardless, any rule created that prohibits any type of smoking or vaping may be challenged by residents, so it is essential that if this issue is facing your condominium, it is important to work with an attorney to help craft the language.
The attorneys at The Orlando Law Group specialize in helping Condominium Owner Associations in Orlando, Sanford, Winter Garden and Kissimmee with all of an organization’s essential legal needs.
What about individual property rights?
When someone purchases real estate, like a home or condo, the popular belief is the property is theirs and they are free to do what they want.
While that can be mostly true, there are many instances where actions inside a private home or on private property can impact neighbors or the community as a whole. In nearly all cases, the community’s association or law enforcement can step in.
Think about this. If you have a massive party with hundreds of people and speakers pounding dance music at 3 a.m., the police will show up and force you to turn the music off because of how it affects your neighbors.
Of course, if you try to paint your house bright pink and purple, the homeowners’ association can force you to repaint in a style that does not affect your neighbors’ property values.
Same thing with a condominium.
While you own it, you cannot operate a woodworking hobby with saws in the condo at 5 a.m. or hold your rock band’s practice at midnight.
Such is the case with smoking and vaping. While you own the space, an owner cannot control where the smoke travels. It will reach common areas and neighbors, affecting the value of other people’s condo units and can create some medical issues that may be life-threatening.
Start with the easiest restrictions
In Florida, the laws are very strict about smoking in workplaces, which is virtually any public area with only a few exceptions. Basically, if you are not a smoke or vape shop or a bar that does not serve food, smoking is not allowed in Florida.
In addition, as stated earlier, counties and cities can prohibit smoking on beaches and parks if they choose.
For a condominium, a workplace includes all the common areas, such as a recreation room, a hallway, a shared garage or storage area, or an outdoor kitchen. Depending on the municipality, it could include a playground or another recreational area.
Florida Statute 386.024 is remarkably short for any law but says: A person may not smoke or vape in an enclosed indoor workplace, except as otherwise provided in s. 386.2045.
Those exceptions?
(1) A private residence whenever it is not being used commercially to provide child care, adult care, or health care, or any combination thereof as defined in s. 386.203(1).
(2) A retail tobacco shop.
(3) A retail vape shop.
(4) A designated guest room at a public lodging establishment.
(5) A stand-alone bar that complies with all applicable provisions of the Beverage Law and this part.
(6) An enclosed indoor workplace, to the extent that tobacco smoking or vaping is an integral part of a smoking or vaping cessation program approved by the department, or medical or scientific research conducted therein.
(7) A customs smoking room in an airport in-transit lounge.
If your condominium association is dealing with people smoking or vaping in common areas, put signs up clearly stating it is prohibited and enforce the law. The penalties for breaking Florida’s Clean Air Act are a fine of not more than $100 for the first violation and not more than $500 for each subsequent violation.
Private Residents are Exempt, Right?
Yes, under the Florida Clean Air Act, private residents are exempt from laws that prohibit smoking or vaping.
However, restrictions placed on condominium owners are often not explicitly outlined in Florida statutes, unless prohibited. For instance, the statutes say condominium associations can restrict, like holiday lights and commercial vehicles.
But, overall, restrictions are a contract between each unit owner and the association to help protect the quality of the condominium for all residents and are developed without clear direction from Florida Statutes.
That means an association can dictate what color paint is on the door of each unit. They can restrict what is on the balcony of each condominium unit. They can restrict how many people live in a unit. They can restrict how the unit is rented – if at all. It can even restrict the age of the owner to over 55 years old.
We believe it can also restrict smoking inside of a condo unit or on the balcony with the same concept. Smoking can greatly affect the values of other units, increase maintenance costs and create a medical hazard for other unit owners.
Smoke can not be controlled
No matter how hard a property owner tries, smoke and vapor cannot be limited to one unit. In many cases, there is an air conditioning system that has connections to other units. Plus, any unit is not airtight. There are small crevices and cracks in walls, window seals and doors.
All of that means the smoke from one unit can travel to common areas and into other units.
As to smoking on the balcony, when you smoke or vape on the balcony, the wind can carry the smoke back into the building and into another unit affecting other property owners.
Some associations require additional steps rather than ban smoking or vaping, such as requiring a condominium owner to put in an air filtration system or extra weathering strips around windows and doors.
But even those cannot capture all the smoke from cigarettes and vapes, often leaving condominium associations having to outright ban smoking indoors and on the patio.
Property Damage from Smoke and Vapors is Real
A study once showed the resale value of a home or condominium occupied by a smoker decreased by nearly 30 percent. Of course, the thought that if someone wants to reduce the value of their home by that much, they should be allowed to do so.
Again, smoke and vapors do not stay in one unit. It spreads throughout the building, entering neighboring units and the hallways and common areas.
This increases the number of times the condominium association needs to change the carpet and drapery, paint the walls of the unit and flush out the HVAC systems. All of that adds costs to all owners because of the actions of one unit.
And think about what a heavy smoker living next door does to your property values if someone looks to buy your unit and smells the smoke residue in the unit, even if you don’t smoke!
That is exactly what any restrictions on unit owners by a condominium association are meant to protect.
It isn’t just the property values. It’s also thirdhand smoke.
Studies have shown that residual smoke on surfaces can cause cancer and even break DNA in humans. Children are especially susceptible to thirdhand smoke.
While it won’t be as dangerous as the thirdhand smoke in the actual unit, nicotine will settle and stay for weeks on surfaces surrounding the unit where the smoker lives.
Secondhand Smoke Can Hurt Others
Much has been written about secondhand smoke. It was the primary reason why laws like the Florida Clean Air Act were passed throughout the country decades ago.
But much of that was centered around being in an enclosed space, like an airplane or a restaurant, and workers not being able to get away from the harmful effects of smoke. As smoking declined in the United States, more people were happy to have laws that eliminated the smell of smoke.
Of course, not one law prohibits smoking by yourself in an enclosed space, but a condominium unit is not an isolated and closed space. It will travel to neighboring units and common areas.
What if your neighbor has severe asthma that can be triggered by the slightest amount of cigarette smoke or vapors from an e-cigarette? Your actions could impact the health of your neighbors.
In that case, the neighbor could file a disability claim with the federal government and could sue the condominium association for a variety of reasons, one of which is the right of quiet enjoyment of a residence.
Basically, the courts have found that owners and renters have the right to enjoy where they live without the outside threats of something lessening that ability. If one condo unit owner’s secondhand smoke is causing asthma attacks in their neighbor’s kids, they have affected their neighbors’ right of quiet enjoyment.
Medical Marijuana Users Have Rights Too
In Florida, the use of marijuana is illegal unless prescribed by a physician. In 2024, nearly 1 million Floridians had been prescribed a prescription to use marijuana for issues like sleep assistance, constant pain, cancer and much more.
If you are one of the million people with a prescription, an association can not prevent you from taking your medication. However, it still can prevent you from smoking or vaping marijuana, even in your house.
As with all the studies of cigarette smoke, the same applies to smoke from marijuana and vapes. Thankfully for those who need marijuana for medical purposes, there are a wide variety of smokeless ways to receive medicine.
A condominium association should be able to require that medical marijuana users only partake with gummies, pills, topographical creams or other non-smokable ways. As medical marijuana is relatively new, there is still little case law on this subject.
Be understanding of your unit owners
As anyone who has lived in a condominium, it often takes understanding of each other’s neighbors to co-exist. It is often a life filled with compromises to ensure everyone can enjoy their home.
Much like any other restriction for a condominium owner, the covenants regarding smoking or vaping can impact one owner to ensure the overall standard of the community is met.
If you are looking to ban smoking or vaping inside units or on a patio or balcony, take into account that smoking is often an addiction that is incredibly difficult to break. As such, look for ways the condominium association can be accommodating, such as building a covered smoking pavilion away from the building for smokers to use.
The attorneys at The Orlando Law Group help all types of condominium and homeowners associations in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.
Whether it is on this issue or one of the thousands of other issues facing association management, The Orlando Law Group can help.
If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.
The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.