“Vaping” Rules Questioned

Q: We have a few people who “vape” at the swimming pool at our condominium. I complained to one of them once as the fumes were blowing in my direction. They pointed to the “No Smoking” sign posted at the pool and said “there’s no rule against this.” What do you think? (K.G. via e-mail)

A: While your neighbor’s actions certainly seem rude, whether they were (or will be) legally improper is a more complicated question. Generally speaking, restrictions on the free use of property are disfavored in the law, so the rule followed by the courts is that restrictions must be strictly construed.

Although I am not aware of any case precedents on point, I think “vaping” is different than “smoking” in the eyes of the law. However, just because the posted sign only deals with smoking, there may be other written rules that specifically address this issue. If not, you might want to suggest that your board look at updating the rules.

In my view, rules regulating (or even prohibiting) smoking on the commonly used common areas of a condominium would be given great deference by a court as far as the required legal element of “reasonableness.” I also believe that similar rules regulating “vaping” would be given the same treatment by a court.

I would also point out the Florida Clean Indoor Air Act prohibits smoking in indoor places of “work.” As that term is defined in the law, this will usually include the indoor areas of condominium and homeowners’ association common areas, such as meeting rooms and clubhouses. By virtue of an amendment to the Florida Constitution last November, effective July 1, 2019, “vaping” will be given the same status as “smoking” under the Clean Air Act. In other words, regardless of any Board rule on the topic, “vaping” in areas covered by the statute will be a violation of law.

Q: My condominium association is in the process of having its pest control company treat all of the units for insects. However, one unit owner will not give the association access to their unit and is stating that since it is private property, the association has no right to enter. Can the association amend the condominium documents to provide for a right of entry to the units?  (D.P. by e-mail)

A: I doubt that it is necessary for the association to amend its condominium documents regarding the right to enter units. Section 718.111(5)(a) of the Florida Condominium Act provides that the association has an irrevocable right of access to each unit during reasonable hours, when necessary for the maintenance, repair, or replacement of any common elements or of any portion of a unit to be maintained by the association pursuant to the declaration or as necessary to prevent damage to the common elements or to a unit.

Assuming that the declaration of condominium provides that the association has the authority to provide for pest control to the condominium property, including the units, the association has legal right to access all units for such purpose. Accordingly, while the association likely has the legal right to access the unit, if an owner is preventing access the association would have to take appropriate action to enforce its rights. There are arbitration decisions issued by the Division of Florida Condominium, Timeshares and Mobile Homes that have found that unit owners may not deny access by the association, nor may unit owners place conditions upon the association’s right of access to units. Therefore, if a unit owner is unreasonably preventing the association from accessing their unit for proper purposes, the association may be forced to take legal action in order to obtain such access. Although your association counsel should be consulted on the proper procedures, many associations also enact requirements for the posting of a key to all units, which has also been upheld by the Division.

Originally posted on floridacondohoalawblog.com. Written by Joe Adams is an attorney with Becker & Poliakoff, P.A.,