E-Cigarettes Will Add a New Wrinkle to Evolving Condominium Smoking Policies

Massachusetts condominium associations that are just beginning to grapple with the challenges created by the state law legalizing the use of medical marijuana, will soon find themselves confronting the equally complicated problems created by e-cigarettes. Like the new state law, which will no doubt increase the number of people smoking marijuana, e-cigarettes will force associations to rethink the policies they have or may need to govern smoking in their communities.

Introduced about 10 years ago, but growing in popularity more recently, e-cigarettes use battery-powered inhalers to turn nicotine-infused liquids into an inhalable water vapor, without producing the tar that makes cigarettes so toxic. They are being marketed as a tobacco-less alternative to traditional cigarettes, safer both for smokers and for non-smokers endangered by exposure to second-hand tobacco smoke.But notwithstanding the assertions that e-cigarettes do not create the same health concerns that have made cigarettes almost synonymous with cancer, anti-smoking groups, backed by many health professionals, contend that the health effects of e-cigarettes are still unknown ─ an argument, they say, for regulating the product, which is not currently subject to the federal restrictions on the marketing and sale of tobacco products.The Federal Drug Administration, which regulates cigarettes, is expected to approve regulations extending its authority to include e-cigarettes. But frustrated by the agency’s slow movement in that direction, lawmakers in many states and municipalities have enacted restrictions on their own.Twenty states have already banned the sale of e-cigarettes to minors and 12 others, including Massachusetts, are considering similar measures. The Massachusetts measure, which received a favorable report from the Legislature’s Public Health Committee, would, in addition to prohibiting the sale of e-cigarettes to minors, ban them on school property and restrict the “vapping” of e-cigarettes in buildings and public areas where smoking is currently banned. The state Department of Health estimates that 86 cities and towns in Massachusetts have approved measures restricting the use and/or sale of e-cigarettes in their communities.Here it ComesCondominium boards don’t need a crystal ball to see what the future holds; they need only hit the replay button on the battles between smokers and non-smokers that have already been fought in many communities and are still being waged in many others. While cigarette-smoking generally has been declining steadily, the use of e-cigarettes is growing. Sales of the product, totaling about $2 billion this year, are expected to exceed $10 billion in 2017.Given those projections, buoyed by the aggressive advertising of manufacturers, it is only a matter of time before some condominium owners begin using e-cigarettes and others begin complaining about their use – and demand that their boards “do something” about it.As we have discussed in previous alerts and emphasize as often as we can, the boards of condominium associations have the clear authority to adopt rules governing activities and behaviors in common areas, but that authority, which can’t be easily challenged, ends at the thresholds of owners’ residences. What owners do, or don’t do, within their units is pretty much beyond the board’s rule-making reach.It’s true that boards can enforce the anti-nuisance provisions included in most condominium documents. But only a few courts have defined cigarettes as a “nuisance,” and Massachusetts courts aren’t among them, making the nuisance provision a weak hook on which to hang rules restricting smoking inside owners’ units. That’s why we advise associations that want to make their communities smoke free to amend their master deed or by-laws, which a super majority of owners must approve.A Cigarette by Any Other NameBut communities that have already amended their documents to ban smoking should not assume that those provisions apply automatically to e-cigarettes. Owners challenging an enforcement action based on a covenant that simply bans smoking in the community will argue that e-cigarettes are not tobacco products and so aren’t covered by the ban.A Saturday Night Live skit illustrated the problem. Mimicking the arguments used by e-cigarette promoters, an actor noted the advantages of an “e-meth” device using inhalable crystal-meth. “It produces vapor instead of smoke,” the actor noted, adding, “I can smoke [wherever I want].” The skit was funny; a similar dispute played out in a condominium community won’t be.If your association’s smoking covenant isn't specific, it will be open to interpretation, and the courts will interpret it for you. On the other hand, if your covenant specifies that the association’s smoking policy applies to tobacco-based cigarettes, e-cigarettes, marijuana (and any other products you can identify that people are likely to smoke), there will be nothing for the courts to interpret. It is much better in this case to err on the side of being too specific rather than not specific enough.Blueprint for BoardsE-cigarettes will raise the same issues that have fueled clashes between smokers and non-smokers of conventional cigarettes, and boards should approach them in the same way:

• Take the complaints and health concerns of non-smoking owners who object to e-cigarettes seriously. Health risks related to the tobacco-less product haven’t been established, but they haven’t been disproven either. Boards that fail to respond to the complaints of non-smokers face potential liability should these owners ultimately prove that e-cigarettes caused or exacerbated their medical problems.
• Encourage e-cigarette smokers and the neighbors complaining about them to work together to mitigate the problems by sealing cracks, installing ventilation equipment, and taking other steps to prevent ‘vapors’ from migrating between units.
• Ask owners to approve a smoking ban if the association doesn't have one, or to amend an existing ban to encompass e-cigarettes. Even if owners reject those proposals, boards can demonstrate that they have done everything within their authority to deal with e-cigarette concerns, creating a strong defense against allegations that they failed to address the problem.
• Make sure smoking covenants or bylaws specify that the board has the authority to enforce the restrictions but is not required to do so. The language should also note that owners can pursue legal action on their own against owners who violate the association’s smoking policy. Making enforcement an option rather than an obligation for the board will make it difficult for plaintiffs to prevail in suits alleging that the board failed to carry out its duties, and should prevent them from recovering legal fees and other costs in these actions.