More than a year has passed since New Jersey enacted its Smoke-Free Air Act (the “Act”) banning smoking in most public places due to the dangers of second hand smoke. The smoking ban impacts common interest community association owners because clubhouses and other common elements fall under the “indoor public place” and “workplace” categories. The Act requires associations to place no-smoking signs at clubhouse entrances, which clearly notice fines for violators. Persons found smoking in non-smoking designated areas are subject to a $250.00 fine for the first offense; a $500.00 fine for the second offense; and a $1,000.00 for subsequent offenses. These steep penalties are clearly meant to deter offenders.
 
In addition, there has been some interest and action to enforce a “25 foot rule”, which would prohibit smokers from coming within 25 feet of an establishment before lighting up. This proposal, however, was not made part of the April 15, 2006 smoking ban and will be left up to local businesses and entities to place such rules and restrictions in their establishments. 
 
Since New Jersey enacted its limited ban on smoking, there has been a nationwide trend toward banning smoking in common interest community associations altogether. However, this trend is being met with some resistance. Many condominium boards and managers are hesitant to get tough on smoking homeowners for fear of trying to dictate how people live in their own homes. Some attorneys have argued that association boards have a fiduciary duty to enact and enforce rules to prohibit smoking in their communities to protect the health and well being of non-smokers and to lessen the effects of second hand smoke on children who may live in the common interest community. 
 
In Golden, Colorado, a judge ordered that an association can prohibit smoking in its four unit building after a suit was filed against one set of smoking homeowners. The judge ruled that the smell of smoke constitutes a “nuisance”, which violates the association’s declaration. The statewide trend in California to ban smoking in many establishments is slowly trickling down to condominium and homeowners associations. We may soon see litigation in New Jersey supporting this idea.
 
This leads us to the question of whether an association can ban smoking in all areas, not just the common elements, of the common interest community. The answer and law are unclear at this point. Regardless of your position on smoking however, you may be faced with a smoking dispute in your association, which may require board intervention. To stay ahead of this threat, the first step may be to thoroughly review your governing documents and consider polling residents to assess interest on amending the governing documents, if necessary. In your review of governing documents, look for language such as “noxious and/or offensive conduct”, which may provide legal justification to withstand a court challenge.
 
We will continue to monitor this law and provide updates as necessary.