Enforcement under the Nuisance Provision of the CC&Rs.
Secondhand smoke can cause serious health problems in children and adults.
Is it legal to completely prohibit smoking in an apartment building or condo complex?
Smoke can easily seep into other apartments in multi-unit buildings – through walls, doors, electrical outlets, and ventilation systems. There is no way to eliminate this exposure. Not only is the smell annoying, but secondhand smoke also affects many parts of the human body in children and adults.
California law recognizes two types of nuisances: (1) a private nuisance, and (2) a public nuisance. A private nuisance affects one or a few property owners. A public nuisance affects an entire community or neighborhood. A nuisance is “anything that is injurious to health . . . or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.” [California Civil Code § 3479.] To constitute a nuisance, the invasion of the owner’s interest in the use and enjoyment of his or her property must be substantial, based on proof of significant harm judged by an objective standard. [San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893.] The legal test for determining whether an owner has suffered an unreasonable interference with the use and enjoyment of his or her property is whether the gravity of the harm outweighs the social utility of the offending conduct.
No public employee or member of the public shall smoke any tobacco product inside a public building, or in an outdoor area within 20 feet of a main exit, entrance, or operable window of a public building, or in a passenger vehicle, as defined by Section 465 of the Vehicle Code, owned by the state.
Many state and local laws prohibit smoking in workplaces and public spaces, and restrict or prohibit it in multiunit residential properties.
If your condo neighbor smokes, there are some steps you can take to avoid secondhand smoke seeping into your living space: Typically, marijuana, cigarette smoke, vaping any other kind too transferred from one unit to another through air vents, pipes, gaps in insulation, electrical outlets, ceiling fixtures, windows, and doors.
Your homeowner association has the legal ability to prohibit smoking in indoor and outdoor common areas of the condo complex and to restrict smoking in individual units.
Controlling secondhand smoke in the common area is supported by the typical nuisance provisions found in most CC&Rs. Secondhand smoke, whether cigarette, cigar, marijuana or otherwise, that drifts into other units, balconies, or common areas can be restricted by the association. Members have a right to the quiet enjoyment of their own units and don’t have to endure secondhand smoke of any kind wafting into their units; few people would question the validity of CC&R provisions that prohibit secondhand smoke.
An association’s authority to regulate the use of medical marijuana inside units is less clear. Health & Safety Code 11362.79 implies that smoking medical marijuana in one’s residence is allowed. As long as the smoke does not create a nuisance and provided the person has been authorized to use medical marijuana, smoking it in a unit is probably allowed under California law. As a result, a board might have better success regulating marijuana use by focusing on the secondhand smoke or nuisance aspects.
According to the U.S. Department of Health and Human Services CDC,” Studies show that older children whose parents smoke get sick more often. Their lungs grow less than children who do not breathe secondhand smoke, and they get more bronchitis and pneumonia.
Marijuana is illegal under federal law.
If you are smoking pot in a place where cigarette smoking is also illegal, you can be fined up to $250.
Secondhand marijuana smoke contains tetrahydrocannabinol (THC), the chemical responsible for most of marijuana’s psychological effects, and many of the same toxic chemicals in smoked tobacco.
The U.S. Food and Drug Administration (FDA)External has not recognized or approved the marijuana plant as medicine.
Because marijuana is often smoked, it can damage your lungs and cardiovascular system (e.g., heart and blood vessels). These and other damaging effects on the brain and body could make marijuana more harmful than helpful as medicine. Another problem with marijuana as a medicine is that the ingredients aren’t exactly the same from plant to plant. There’s no way to know what kind and how much of a chemical you’re getting.
Wheezing and coughing are more common in children who breathe secondhand smoke.
Secondhand smoke can trigger an asthma attack in a child. Children with asthma who are around secondhand smoke have more severe and frequent asthma attacks.”
https://www.cdc.gov/tobacco/stateandcommunity/index.htm
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