Centennial to vote on smoking ban
August 20, 2008
ASPEN ” At their annual meeting in December, Centennial homeowners will be asked to decide whether to enact a property-wide smoking ban at their affordable housing complex.
The Centennial Owners’ Association (COA) board Tuesday night voted 5-3 to send the issue to the 92-unit development’s residents. The ban will have to be passed by a majority of about 67 percent of the votes.
All owners will get a vote, which will be proportionate to their unit size. Fred Peirce, Centennial’s attorney, has also pointed out that the ban will need written consent from the same roughly 67 percent of residents.
If the ban passes, the COA will also have to plan enforcement procedures.
“By putting it to a vote, it’s fair,” said board president Ed Cross. But he isn’t at all sure the ban will pass.
“It will be very difficult, I think, to get a two-thirds majority,” he said after the meeting. A survey sent out by resident Andrea Karson confirms this suspicion. Of the 35 surveys she’s received back, only five residents support the ban.
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In a memo to Peirce, colleague Douglas Cook suggested the COA focus on the dangers of secondhand smoke, leaving fire safety as a secondary basis for the ban.
“Instituting a ban on smoking … based on the various concerns, particularly health-related, associated with secondhand smoke appears to be the most well-traveled and predictable path,” Cook wrote.
Cook pointed to a case in Jefferson County that could act as a precedent, noting a district court judge upheld a nonsmoking ban based on a condominium declaration’s no-nuisance provision. The judge then decided that secondhand smoke fit the legal definition of nuisance.
Aware of this case, the COA last year recognized smoking as a potential nuisance in its rules and regulations, after members complained to the board about new homeowners who excessively smoked. Cross said the issue died when the couple quit smoking in order to afford their mortgage.
But concerns over smoking at Centennial arose again after the June 10 Castle Ridge fire, in which an apartment building burned to the ground after a smoldering cigarette was left in potting soil on a balcony. Less than two weeks after the Castle Ridge fire, another smoldering cigarette was left in a flower box at Centennial, but the fire was extinguished before it caused any damage.
At Tuesday’s meeting, Fire Marshall Ed Van Walraven spoke in support of the proposal, but emphasized that the Aspen Fire Protection District was not requiring the ban. He pointed out that fires caused by cigarettes are the leading cause of fatal blazes ” and noted that fires put firefighters as well as residents at risk.
Nick Mechikoff, from the American Lung Association (ALA), also spoke to the board about the dangers of secondhand smoke, arguing that there was no way to prevent secondhand smoke from wafting between units, except to enforce a smoking ban. He cited a study from the Center for Energy and the Environment in Michigan that changed the ventilation and sealed units in six buildings. Secondhand smoke levels decreased but were not eliminated, he said.
The ALA has also offered to help draft language for the ban ” an offer the board jumped at, as they have already spent approximately $5,000 in legal fees on the issue.
Asked how much the board might have to spend if the ban was challenged by a resident, ALA lawyer Wendy Morrison declined to guess at an amount, but pointed out that 95 buildings in Colorado have already enacted a smoking ban, and the Jefferson County case was the only challenge that had gone to court, as far as she knew.
“The chances that it would really go to court are very slim,” she said.
Residents at the meeting had a quick chance to weigh in.
“Our building is falling down, guys. Come on, let’s focus on the important stuff,” said John Kennedy, suggesting the COA should be discussing peeling paint.
But Jason Closic argued that homeowners wouldn’t have to worry about painting the building if it burned down.
“The real issue here is, can you trust your neighbors not to burn you and your house to the ground,” he said.