Use Bylaw to Extinguish Cigarette Complaints

May 17, 2013
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Smoking not only poses dangers such as fire and health risks to a community, it also annoys nonsmoking members and their guests, resulting in more complaints that you have to address. But if a board decides to go ahead and impose a smoking ban, is simply enacting a new community rule enough?

Instead of enacting a new community rule, the association should amend its governing documents. A court is more likely to uphold a bylaw amendment because it’s more difficult to enact than a community rule. A bylaw amendment typically requires the approval of at least 75 percent of unit owners and sometimes more, while a board can adopt a rule by majority vote.

A bylaw amendment is also easier to defend in court from members challenging it. A member must prove that an amendment is arbitrary and capricious to overturn it, while members challenging a rule must demonstrate only that it is “unreasonable,” which is a much lower legal threshold to clear.

You’ll want to explain the smoking ban policy in advance to members. But be prepared for some resistance, especially from long-time smokers in the community. Despite an association’s best efforts to, and despite its authority to, fine members, some members may still violate the policy. That’s why it’s also important for the bylaw to say that if the association must sue to enforce its policy, or if it must defend itself in court against a member who has challenged it, the loser of the lawsuit must pay for the winner’s costs and legal fees.

For Model Language you can use when drafting your smoking ban bylaw, click here. And for tips for facing member opposition to a smoking ban, see “How to Implement a Smoking Ban in Your Community,” in the December 2011 Insider, available in our online archive. 

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