In 2004, Phyllis Davis purchased a unit on the second floor of a four-unit building. She was a cancer survivor with a history of asthma and claimed that cigarette smoke from the unit below significantly impacted her ability to breathe comfortably. She requested help from the Association's board of directors. The board made efforts to mitigate the transmission of secondhand smoke but had no power to ban smoking as it was not prohibited in the Association's governing documents.
The efforts by the board to seal openings in cracks, doors and vents to prevent the transmission of smoke along with the installation of an air filter were insufficient to satisfy Ms. Davis. She requested a “reasonable accommodation” in the Association rules to implement a smoking ban in her building. The Association refused to institute a smoking ban based upon its understanding that it had no power to do so as smoking was permitted under the existing rules.
Davis sued the Association alleging that its refusal to ban smoking in her building discriminated against her because of her health issues and was in violation of the federal Fair Housing Act. The court sided with the Association and ruled that implementing a smoking ban would constitute a fundamental change in Association policy versus a moderate adjustment to a policy. This is the test applied when a request for a “reasonable accommodation” is made. Implementation of the smoking ban was considered a fundamental change in policy because of the significant interference with the rights of other smoking residents in the building who relied on the existing rules that allowed smoking in their units at the time of purchase.
It is our opinion that the result in this case (Davis v. Echo Valley Condominium Association (2019) 945 F.3d 483) may have been different had the Association rules contained some limitation or power of the board to control the transmission of secondhand smoke. In general, we do not recommend clients impose a complete ban on smoking but instead address the issue of transmission of secondhand smoke by adopting CC&R provisions that empower the board to deal with these issues on a case-by-case basis, including the ability to require the residents of the offending unit to modify smoking behavior or cease smoking in the unit altogether if other alternatives have failed to resolve the problem.