Recently I was asked by a national publication to respond to a question about restricting cigarette smoking in condominiums. I drafted the following response. The editor unfortunately removed my humor and any ambiguity. (For example, in the edited version the editor wrote that smoking restrictions were enforceable so long as they were fair and reasonably adopted. Is that what I said?) Although I’m still attributed to the response in the written publication, the editor graciously removed any attribution to me on their website. The original unedited version is worth publishing, I think, only because it still makes me squirm:
Q. The rules for my condominium say that an owner must control smoke in his or her own unit. When a neighbor complained about my smoking, I spent thousands of dollars to seal my unit and theirs. When the neighbor complained again, the board then brought in vendors at my expense. Then the board said I violated the rules and can’t smoke in my unit anymore, but I cooperated and hired all the vendors they selected. What options do I have? Is the board right? – Seattle, WA
A. I’m sorry the owner spent thousands of dollars and the issue isn’t resolved. I am equally sorry that the association may have spent thousands of dollars as well looking for a permanent solution. And then equally sorry again that the neighbor probably thinks any solution is ephemeral and that he or she is going to die an untimely death from lung cancer. There is little chance that the issue will be resolved to everyone’s satisfaction so long as smoking is legal, some owners hate it, tobacco built this country, and tobacco still employs a lot of people (just not in Washington State). Please know that I am a victim here too. No matter what I write as an “answer,” there’s the probability that this writer will offend everyone except his mother. In particular he is likely to offend the editor, which editor was promised a silver bullet to this werewolf. Yeah. Sorry, editor. The questions posed cannot be adequately answered in the allotted space by an overly-educated person of humble origin, in one corner of North America, in a state, perfectly well-balanced, bordered by socialists and survivalists, in a country that produced such movies as “Shane,” “A Civil Action,” “To Kill a Mockingbird,” “North by Northwest,” “Erin Brockovich,” and “Happy Gilmore.”
In any condominium, with owners living in close proximity, the ability to function (as opposed to dysfunction) depends on the interplay of a number of obvious factors, including whether all of the owners are exactly alike, the willingness of owners to give up some individual freedom and comfort for the greater good, the quality of the declaration, the reasonableness of the rules, and the fairness of the enforcement process. Less obvious factors include the broader community’s customs and social mores, the availability of engineering solutions, and, not to be overlooked, the willingness of a state legislature to promulgate rules, restrictions, and guidance upon which a group of owners can reasonably depend. Since the questions cannot be adequately answered in the allotted space, let’s dive in anyway, shall we?
Question One — OWNER OPTIONS. The owner’s options are: (1) persuade the board to change the rule; (2) seek to judicially resolve the issue by suing the neighbor and proving the neighbor is lying that the seals didn’t work, (3) be sued and defend an individual’s right to smoke in a building operated by a private organization that has rule-making authority; (4) sue the association and prove by a preponderance of the evidence that the association, in trying to adopt a rule balancing polarized interests, (a) acted unreasonably when it adopted a rule placing the burden on a smoker to keep smoke from leaving the smoker’s unit and (b) , acted unreasonably when it hired vendors at the smoker’s expense to presumably investigate the feasibility of controlling the path of smoke, with or without modifications to the unit or the common elements; (5) show that the enforcement process was unfair or the decision grossly inconsistent with some past precedent carved in marble on the entrance steps; (6) take the thousands of dollars that the owner would otherwise have spent on an issue of first impression and move and buy a really nice single family residence on five acres; (7) seek a legislative solution; (8) quit smoking. These options are not exhaustive.
Question Two — BOARD RIGHTEOUSNESS. Yes, the board is right. I write this, of course, knowing that a trial court, an arbitrator, an appellate court, the Washington State Supreme Court, the Ninth Circuit Court of Appeals, the United States Supreme Court, and the International Court of Justice at The Hague, can and likely will, disagree with me at some point in the future. By “right”, of course, I mean that the board’s attempt at drafting and enforcing a rule (that I’ve not seen) is within a realm, once covering vast unpopulated expanses of this great land, where “reasonable minds can differ,” that the owner was given a fair opportunity to explain to the board why the board is factually wrong, legally wrong, and unreasonable, and that all of the parties, randomly assigned an elected judge, have a 50% chance of getting a judge who believes that smoking is bad for you but that people have the right to smoke in their own residence.
God, I need a smoke.
By Brian P. McLean, Leahy McLean Fjelstad