Refusal to Institute Smoking Ban Doesn’t Violate FHA
As the number of smokers falls, it seems the number of people irritated by smokers climbs — which can lead to problems in community associations. Things can get especially tricky when the irritated owner claims a disability.
One such owner sued her association and its manager, alleging that their refusal to ban smoking amounted to unlawful discrimination. “It’s a good example of someone trying to stretch the Fair Housing Act (FHA) to do something it wasn’t intended to do,” says Scott Weiss, of counsel for the Nashville, Tenn., law firm Ortale Kelley and a fellow in the College of Community Association Lawyers.
The good news? The federal court of appeals that covers Kentucky, Michigan, Ohio, and Tennessee shot down her case. Davis v. Echo Valley Condominium Association (6th Cir. 2019).
Phyllis Davis suffers from asthma but lives in a condominium complex that allows smoking in the units. She claimed that the smell of smoke regularly emanating from a nearby condo rented to tenants aggravated her asthma.
The owner first complained to an employee of the management company that the tenants’ constant smoking affected her breathing, causing constant coughing and near asthma attacks. The board discussed her complaint at a meeting and directed the employee to write the unit owners about it, requesting their assistance in containing the smell. The letter suggested they ask their tenants to smoke on the balcony or further insulate the doors.
After another complaint from Davis, the board installed a $275 fresh-air system on her ductwork. She reported that the system helped but didn’t fully eliminate the odor.
Davis eventually sued the association, the owners of the neighboring unit, and the management company. She claimed that they discriminated against her in violation of the FHA by refusing to ban smoking.
To learn why the Sixth Circuit Court of Appeals rejected the claim, read our new article, Smoking Ban Isn’t a Reasonable Accommodation for an Asthmatic Owner.