Electronic cigarettes (or “e-cigarettes”) were first introduced into the U.S. market in the mid-2000s (see here) but only recently garnered national attention when e-cigarette smokers began developing mysterious lung injuries, some of which have been fatal (see here). As of July 2019, 8% of Americans reported vaping (smoking an e-cigarette) within the past week, with almost 1 out of every 5 adults ranging in age from 18 to 29 years old reporting they vaped regularly (see here). While 18 to 29-year-olds are more likely to vape than any other age group of adults in America, they also are the least likely to be traditional cigarette smokers, with only 8 out of every 100 adults ranging in age from 18 to 24 years old reporting they currently smoke cigarettes (see here).
In response to the rise of vaping among both 18 to 29-year-olds and school-aged children (a recent survey found 1 in 4 12th graders, 1 in 5 10th graders and almost 1 in 10 8th graders vaped in the previous month), the federal government raised the minimum age to purchase tobacco products, including e-cigarettes, to 21 (see here). As this subset of the American population becomes homeowners, community associations that have only ever addressed the issue of traditional cigarette smoking in their governing documents may find themselves unprepared for the rise in vaping in their community. While there are smoking regulations on the federal and state levels, these regulations are limited in their scope and community associations should review their governing documents to determine whether their documents appropriately address this growing issue.
Department of Housing and Urban Development’s (“HUD”) Smoke-Free Public Housing Rule
On February 3, 2017, HUD’s Smoke-Free Public Housing Rule became effective, requiring all public housing agencies to implement smoke-free policies by July 31, 2018 (see here); however, this three-year-old rule has become outdated as it only prohibits the following tobacco products:
A PHA’s smoke-free policy must, at a minimum, ban the use of all prohibited tobacco products. Prohibited tobacco products are defined as:
(1) Items that involve the ignition and burning of tobacco leaves, such as (but not limited to) cigarettes, cigars, and pipes.
(2) To the extent not covered by paragraph (c)(1) of this section, waterpipes (hookahs).
24 CFR § 965.653(c)
Vaping only heats nicotine in order to create a water vapor and does not involve the ignition or burning of tobacco (see here) and, accordingly, does not fall under HUD’s definition of prohibited tobacco products. This discrepancy is noted by HUD’s smoke-free policy checklist, which lists prohibiting e-cigarettes as a discretionary option (see here). HUD’s Smoke-Free Public Housing Rule does not apply to most community associations as they are not public housing agencies, but it illustrates how many federal and state regulations that address smoking fail to encompass vaping.
Michigan’s Smoke-Free Air Law
Long gone are the days when a guest at a Michigan restaurant had to indicate whether they wanted to be seated in a smoking or non-smoking section thanks to the Michigan Smoke-Free Air Law effective May 1, 2010 (MCL 333.12601 et seq.); however, you still may notice individuals vaping in restaurants, movie theaters and other public places and wonder why management is not asking them to stop. While MCL 333.12603 prohibits an individual from smoking in a public place or at a meeting of a public body and requires owners, operators and managers of public places, food service establishments and certain casinos to prohibit individuals from smoking in violation of the law, Michigan’s Smoke-Free Air Law fails to address vaping as it defines smoking as “the burning of a lighted cigar, cigarette, pipe, or any other matter or substance that contains a tobacco product.” MCL 333.12601(1)(r). Accordingly, while Michigan was the first state to announce a ban on the sale of flavored e-cigarettes, effective October 1, 2019 (see here), Michigan’s Smoke-Free Air Law does not regulate where e-cigarettes may and may not be smoked. Michigan’s Smoke-Free Air Law may apply to some mixed-use or commercial condominium projects but would not apply to purely residential condominium projects. Accordingly, community associations cannot rely on Michigan’s Smoke-Free Air Law to regulate vaping within their community and need to specifically address the issue in their governing documents.
What Steps Can Your Community Association Take?
Community associations that want to either limit or ban vaping in their community will need to take a careful look at their governing documents to determine whether they can do so through either rules and regulations or an amendment to their governing documents. In Meadow Bridge Condominium Association v Bosca, 187 Mich App 280, 282; 466 NW2d 303 (1990), the Michigan Court of Appeals reviewed condominium bylaws that prohibited any animals without specific approval from the condominium association and a set of rules and regulations that prohibited any new dogs in the condominium to determine whether the new-dog prohibition could be implemented through rules and regulations or required an amendment to the condominium bylaws. The court held the rules and regulations prohibiting new dogs were a valid tool to implement the restrictions already in the condominium bylaws, stating the following:
The essential question in this case is whether the 1985 board action constituted a rule and regulation or an amendment of the condominium bylaws. While the board has the authority to promulgate reasonable rules and regulations, an amendment requires approval of sixty percent of the co-owners. Because the association did not hold a vote on the 1985 action, a finding that the action was an amendment would render it invalid and unenforceable. The trial court ruled that the board action was an amendment and accordingly granted defendants’ motion for summary disposition. We find that the trial court erred.
Defendants suggest, and we agree, that a rule or regulation is “a tool to implement or manage existing structural law,” while an amendment “presumptively changes existing structural law.” See Black’s Law Dictionary (5th ed). In this case, the existing original bylaw states that “no animals shall be maintained by any co-owner unless specifically approved in writing by the Association.” The 1985 regulation is not inconsistent with the original bylaw and does nothing to change the general rule. The 1985 regulation merely sets out the board’s decision to implement or manage the pet ownership rule by prospectively denying approval of new dogs.
Similarly, community associations that want to limit or ban vaping in their community should work with legal counsel who specialize in community association law to review your governing documents and advise on whether you can do so through rules and regulations based on existing provisions in the governing documents or if instead you will be required to amend your governing documents. Community associations that already have smoking rules and regulations but also want to limit or ban vaping should also work with legal counsel to review the language in your rules and regulations to verify whether the language includes vaping or whether, much like HUD’s Smoke-Free Public Housing Rule and Michigan’s Smoke-Free Air Law, the language narrowly defines “smoking” and does not include vaping.
Kayleigh B. Long is an attorney with Hirzel Law, PLC and focuses her practice in the areas of appellate law, community association law and civil litigation. Ms. Long received her Bachelor of Arts degree in International Studies from Indiana University. Prior to attending law school, Ms. Long joined Teach for America, teaching kindergarten in Harper Woods, Michigan and southeast Washington, D.C., and received a Master of Arts in Teaching from Oakland University. Ms. Long then obtained her Juris Doctor degree from Indiana University Robert H. McKinney School of Law, where she graduated in the top 5 of her class and served as the Senior Executive Editor on the Indiana Law Review. Her law review note was selected for publication in the Indiana Law Review, and she recently had an article published in the Denver Law Review. She can be reached at (248) 478-1800 or email@example.com.