Smoking ban idea snuffed at Centennial in Aspen
December 17, 2008
ASPEN ” A propertywide smoking ban at Centennial condominiums in Aspen went up in flames Tuesday after an overwhelming number of homeowners voted against the idea.
The “no” vote was so overwhelming, in fact, that the homeowners’ association board of directors didn’t even take an official count of the 22 people who attended the meeting and voted by a show of hands. Proxies also were sent in by homeowners who weren’t present, although it’s unknown how many were submitted.
But it was evident at the beginning of the annual homeowners meeting that the proxies wouldn’t garner the 66 and two-thirds vote needed by the 92 owners at Centennial, said Ed Cross, president of the homeowner’s association.
And of those who were present, including the nine-member board, about a half dozen voted in favor of a smoking ban.
The idea for a smoking ban at Centennial was prompted after two fires, blames on cigarettes, broke out there and at Castle Ridge Apartments, another Aspen affordable-housing complex. Residents began e-mailing Cross expressing concern for their safety, he said.
Aspen Fire Marshall Ed Van Walraven last summer recommended that a ban be put into effect as a prevention mechanism. The American Lung Association also supported the ban, citing dangers of secondhand smoke. ALA representatives argued in front of the board in August that there was no way to prevent secondhand smoke from wafting between units, except to enforce a smoking ban.
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But the majority of homeowners who attended Tuesday’s meeting said a ban was too heavy-handed and would do little to prevent people from smoking, especially since candles, incense and any open flame also pose dangers but are allowed.
“Forcing people to do something never works,” said one homeowner. “It just makes me pissed and angry and makes me want to do it more.”
Cross said the board felt an obligation to pursue the idea, based on legal advice from the association’s attorney, Fred Peirce, as well as the recommendation from Van Walraven. The lack of a smoking ban could expose the association to lawsuits if a condo or a building burns down as a result of a burning cigarette, Cross said.
“I feel like we had to go forward with this process,” he said. “I feel like it would have been a progressive move for the association.”
About $3,000 has been spent in legal fees pursuing the ban.
On June 10, a Castle Ridge apartment building burned to the ground after a smoldering cigarette was left in potting soil on a balcony. The fire left 17 people homeless and killed a cat. Subsequently, Castle Ridge, which is owned privately and comprised of rental units, has instituted a smoking ban on the entire property.
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.
And last year, a cigarette was left in a flower pot on a second-floor balcony at Centennial, causing extensive damage to a doorway, as well as the building’s siding and common area.
Of the nine board members, one was undecided; four were against the ban; two were for it; and three wanted to grandfather in existing smoking homeowners and ban new owners from smoking when they move in.
“I’m against it because ratting on your neighbors would be an awful situation,” said board member Andrea Karson.
Homeowner Kevin O’Driscoll agreed and said a smoking ban will force people to smoke in their condos, which could be more dangerous.
“It’s going to cause divisions amongst ourselves,” he said, suggesting ashtrays be placed on the property outside.
The board said it will pursue that idea, as well as continual education of homeowners on the risks of smoking, and possibly designating certain areas for smokers.
When the ban was introduced last summer, many observers viewed it as precedent-setting because it would have dictated what people can and cannot do on their own property, raising civil liberty and constitutional issues.
The proposed ban at Centennial was based on a ruling from a judge in Golden, Colo. who recognized that smoking in multifamily units interrupts the quiet enjoyment of one’s home for others. That ruling ” based on a homeowner’s association that banned smoking in a four-plex ” paved the way for the argument that a ban could be warranted, Cross said at meetings this past summer.
In the Golden case, a Jefferson County District Court judge upheld the nonsmoking ban based on a no-nuisance provision in the condominium association’s declaration. The judge decided secondhand smoke fit the legal definition of nuisance.
The Centennial condominium association last year recognized the quiet enjoyment argument in its rules and regulations.