I recently posted a blog titled: "Smoking on Balconies - A Dilemma for Condo Owners" and received many interesting comments from both smokers and non smokers.
Our all-important HOA meeting was held to discuss this issue.
It appeared that most owners (even the non smokers) did not favor a formal ban on smoking on balconies as this seemed to be a draconian approach to the problem.
What surprised most of us at the meeting was that neither the Board nor the Management Company had approached the offending smokers to discuss an amicable compromise.
An interesting point concerning the HOA's liability arose.
What would happen if an owner became ill due to second hand smoke emanating from a balcony? Could the HOA be held liable since it didn't strictly enforce the CC&R's and Rules and Regulations which actually prohibit smoking in all common areas?
Then there is the question of "nuisance". People do not have a fundamental right to smoke. Accordingly, in California there is a growing movement to to restrict or ban smoking inside owner's units because of fire safety and nuisance reasons.
Since there is no constitutional right to smoke and smokers are not regarded as a "protected class" under California Law, the law seems to favor a restriction or ban on smoking.
Unless the smokers can reasonably limit the impact of their second hand smoke a ban on smoking could be enforced.