Regulating Smoking in Your Association
March 9, 2020 | By: Scott Welker

Utah law provides an excellent starting point to deal with smoking problems in your communities.  In fact, “as a matter of law,” second-hand smoke is a nuisance.  In Utah, if tobacco smoke drifts into a residential unit, the affected homeowner may bring a legal action for nuisance against the offender.  Additionally, the law gives homeowner and condominium associations broad authority to regulate smoking in their communities. This authority primarily comes from two sources: the Utah Indoor Clean Air Act and a set of second-hand-smoke amendments to various state statutes passed in 1997.  

Utah’s Indoor Clean Air Act applies to virtually all enclosed spaces that are open to the public or employees and to any area where an owner or manager has posted a clearly visible sign stating “no smoking”, “thank you for not smoking”, or another similar statement. Utah Code §26-38-2(2)(o).  Accordingly, an association can take advantage of the protections afforded by the clean air act by posting the right signage in the manner prescribed by the statutes.  However, before that can be done, the association needs to have smoking restrictions in place. So, the first question for an association is not “where do I get a sign?”  Instead, the question is how to appropriately enact and enforce the regulations desired and permitted by your community. 

Condominium associations enjoy more authority to regulate smoking in their communities than do non-condominium associations.  This is because, as mentioned above, in 1997, the Utah legislature passed a number of amendments to various statutes in an attempt to mitigate the effects of second-hand smoke in residential dwellings.  One such amendment added language to the Condominium Ownership Act found in Title 57, Chapter 8 of the Utah Code. The new language gave specific and clear authority to condominium associations to restrict smoking in member-owned units.  This effectually gave condominium associations the ability to place a total ban on smoking anywhere in their communities.   

Your governing documents and Utah law work in tandem to establish and enforce your community’s smoking restrictions.  For example, when property owners (including condominium associations) place total smoking bans on their premises, certain regulations are triggered under the Utah Clean Air Act.  Therefore, the Act and its corresponding administrative rules should be reviewed carefully. They include a requirement that no-smoking signs, at least 1.5 inches in height, be placed conspicuously so that one is clearly visible at every entrance. They also include regulations that prohibit smoking within 25 feet of any entrance-way, exit, open window, or air intake of a building where smoking is banned.  Condominium associations that have entirely banned smoking should adopt language in their governing documents establishing this 25-foot no-smoking zone. An association may wish to provide ashtrays within the 25-foot zone to encourage cleanliness but, if they do, signs on the ashtray must indicate that the area around it is not a smoking area and should reference the 25-foot zone prohibition.

Unlike condominium associations, the law grants no authority to non-condominium associations to ban smoking in houses or units.  However, like any property owner, both condominium association and homeowner associations may prohibit smoking on the property they own, including common area.  To be sure, although Utah’s clean air act is officially titled the “Utah Indoor Clean Air Act,” rule 392-510-4 of the Utah Administrative Code provides that owners, agents, and operators of a property may prohibit smoking anywhere on their premises, including outdoors.     

Condominium and non-condominium associations may also allow smoking in designated areas while prohibiting it elsewhere throughout the community.  If an association adopts this approach, any “non-smoking” sign should indicate that smoking is permitted in designated areas.  Designated areas must be designed to prevent exposure of tobacco smoke to those outside of the areas. They must also comply with certain guidelines for proper ventilation.  If the designated area is enclosed, HVAC systems must be operated and maintained pursuant to rules outlined in the Utah Administrative Code. Those guidelines along with additional provisions in the administrative code and in the Utah Indoor clean Air Act should be carefully reviewed before creating designated smoking areas.      

As with most restrictions that bind property owners within an association, smoking restrictions should be adopted by the general membership pursuant to the applicable provisions of the declaration and bylaws.  Often, it will be appropriate for the board to adopt more detailed provisions regarding administration by resolution.  Once restrictions are adopted, the board is obligated to enforce them and, if they do not, could be liable for the noncompliance of association members. Association fines for violations can be imposed and should follow the fine schedules and procedures adopted in the association’s governing documents.