Vaping and HOA Governing Documents
Associations that want to limit or ban vaping in their community will need to look at their governing documents carefully. The governing documents will help determine whether the HOA can provide either rules and regulations or an amendment to their governing documents.
A Little History About E-Cigarettes & Vaping
Electronic cigarettes or "e-cigarettes" were first introduced into the U.S. market in the mid-2000s. Recently, however, e-cigarettes have gained national attention. This rise in awareness began when e-cigarette smokers began developing mysterious lung injuries, some of which have been fatal. As of July 2019, 8% of Americans reported vaping (smoking an e-cigarette) within the past week. Almost one out of every five adults ranging in age from 18 to 29 years old vape regularly.
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public housing agencies to implement smoke-free policies by July 31, 2018; however, this three-year-old rule has become outdated as it only prohibits the following tobacco products: Items that involve the ignition and burning of tobacco leaves, such as (but not limited to) cigarettes, cigars, and pipes.
Vaping only heats nicotine to create water vapor and does not involve the ignition or burning of tobacco. Accordingly, it 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.
HUD's Smoke-Free Public Housing Rule does not apply to most associations as they are not public housing agencies. Still, it illustrates how many federal and state regulations that address smoking fail to encompass vaping.
Vaping Today
In response to the rise of vaping among 18 to 29-year-olds and school-aged children, the federal government raised the minimum age to purchase tobacco products, including e-cigarettes, to 21. As this subset of the American population becomes homeowners, homeowners associations may find themselves unprepared to handle the rise in vaping in their community. In the past, HOAs have only ever addressed traditional cigarette smoking in their governing documents.
While there are smoking regulations on the federal and state levels, these regulations are limited in their scope. Associations should review their governing documents to determine whether their papers appropriately address this growing issue.
Steps Your HOA Can Take
Associations that want to either limit or ban vaping in their community will need to take a careful look at their governing documents. Looking over these documents will determine whether they can do so through either rules and regulations or an amendment to their governing documents.
Associations who want to limit or ban vaping in their community should work with legal counsel specializing in community association law. These specialists can review your governing documents and advise on whether you can use rules and regulations based on existing provisions in the governing documents. Or, you will be required to amend your governing documents.
Homeowners who already have smoking rules and regulations and want to limit or ban vaping should work with legal counsel to review the language in your rules and regulations. Legal counsel can verify whether the language includes vaping. Or if the language narrowly defines "smoking" and does not include vaping.
Contact Us
Need assistance figuring out this issue in your HOA or COA? Don't hesitate to reach out to your property manager or contact Condominium Associates.
