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My original question before I had the credit card debacle was:

I live on the southwest side...
My original question before I had the credit card debacle was: I live on
the southwest side of Naples, Florida. Recently, our BOD posted a 48 hour
notice on 10/26 and noticed that they would be "discussion of a smoking
ban." We are a 36 unit Association with 5 directors. There were two
directors present and the meeting was held in the management office about 20-25
miles away. To my knowledge there were about 6 unit owners present on site.
On November 3, the BOD posted Notice (on site) of Budget Discussion with
"open item" for discussion (whatever that means) and the meeting was again
off site. On November 9th unit owners received from the management company a
Notice/Agenda that a meeting would be held on November 23rd (with budget
attached) and a vote to approve the budget was in order. There was no
mention of vote to be taken about on a "smoking ban."

On December 15, 2011, the board sent a letter to unit owners stating "The
Association is prohibiting smoking of any kind in the common areas and the
limited common areas which are includes all lanais, stairwells, entryways,
and walkways from the garages to the buildings. This rule is being
adopted to promote a healthy, safe environment for all of our residents and
guests. This rule has been adopted and is effective immediately upon receipt of
this written communication. Each owner shall be responsible, going
forward, to make sure that this specific language becomes part of any rental
lease or renewal of any existing leases. Owners are responsible to notify any
current lessee that this rule is now in place."

My concern here is that I believe that a 14 day notice should have been
sent to all unit owners of this "smoking ban." Those unit owners who have
signed rental agreements as well as yearly leases and approved by the board;
and who are allowed to smoke either inside or outside on the lanai; what do
they do now? There has been no effort to institute a grandfather clause
for those renters/lessee who signed long before the board mandated the
smoking ban.

Long ago, very long ago I was at the forefront of banning smoking on
busses and trains to and from Boston. It was as you might know a nasty fight
because smokers felt they had rights and that someone like me had no right to
deny them their right to choose to smoke.
Be that as it may .. my only concern here is that the board should have
given a 14 day notice to owners and further, they should have made this
smoking ban an amendment to our documents to avoid any lawsuit against the
association.

This is the question I wish JustAnswer could help me with.
Thank you for your time.

Adele
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Answered in 48 minutes by:
1/1/2012
TJ, Esq.
TJ, Esq., Attorney
Category: Real Estate Law
Satisfied Customers: 12,473
Experience: JD, MBA
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Hello and thank you for allowing me the opportunity to assist you.

Please note that for legal reasons my answers are only intended to be general/educational information rather than specific legal advice. If you need specific legal advice, then you must consult with a local attorney in your jurisdiction.

The applicable law states in part:

Adequate notice of all meetings, which notice shall specifically incorporate an identification of agenda items, shall be posted conspicuously on the condominium property at least 48 continuous hours preceding the meeting except in an emergency. Any item not included on the notice may be taken up on an emergency basis by at least a majority plus one of the members of the board. Such emergency action shall be noticed and ratified at the next regular meeting of the board. However, written notice of any meeting at which nonemergency special assessments, or at which amendment to rules regarding unit use, will be considered shall be mailed, delivered, or electronically transmitted to the unit owners and posted conspicuously on the condominium property not less than 14 days prior to the meeting.

So, the general rule is that 48 hours is enough notice. If nonemergency special assessments are at issue, or amendments to use of the unit, then 14 days notice is required. The issue is whether the smoking ban affects use of the unit. Based on what you wrote, it does not ... it affect use of common areas. Therefore, I think that 48 hours is enough notice. As for renters, their leases are automatically subservient to the condo declaration and bylaws ... even when the declaration or bylaws are amended.

Have I satisfactorily addressed your concerns? If not, then feel free to let me know, as I will be happy to clarify my answer or help with your follow-up questions. In the meantime, please remember to click the green accept button so that I will receive credit and compensation for my time (doing so does not end our discussion). Positive feedback is always appreciated as well. Thank you and good luck!
TJ, Esq.
TJ, Esq., Attorney
Category: Real Estate Law
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Customer reply replied 5 years ago
Thank you for your response to my question. As a resident in Naples,
Florida living in a Condominium I believe that 48 hour notice for Discussion
Only on a Smoking Ban and never once notify the unit owners that a vote will
be taken on a smoking ban and then receive a newsletter that states that
the board in fact did vote to impose a ban. There is something inherently
wrong with the way this was handled. Your thoughts?
Hi again.

If the notice indicated that there would be no vote, and merely a discussion, then I agree that it was handled poorly. However, if the notice indicated that a smoking ban would be discussed, and did not imply that there would be no vote, then I think that it must be assumed that there would be a vote on the smoking ban. So, I suppose it depends on what the notice actually said.
TJ, Esq.
TJ, Esq., Attorney
Category: Real Estate Law
Satisfied Customers: 12,473
Experience: JD, MBA
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Customer reply replied 5 years ago
Good Morning VAMD:

Thank you for your reply. I reviewed the Agenda for October 26 2011 and
under New Business was listed "Discussion of Smoking Ban on property."
Following this meeting there was two meetings held in November and there was no
mention of a vote being taken to Ban Smoking in the Common Areas, Limited
Common Areas, hallways, stairwells, balconies, Lanai's, walkways between
garages, in front and back of garages.
Hi again.

It does seem odd that the new ban wasn't mentioned in the subsequent meetings, though I suppose it's not a requirement. But, as you mentioned earlier, I'd agree that it could have been handled better.
TJ, Esq.
TJ, Esq., Attorney
Category: Real Estate Law
Satisfied Customers: 12,473
Experience: JD, MBA
Verified
TJ, Esq. and 87 other Real Estate Law Specialists are ready to help you
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Customer reply replied 5 years ago
Dear VAMD:

Thank you for your e-mail. As they say ... I'm still amongst the
aborigines and haven't forgotten you and Just Answer or the information that you
have imparted to me. I do have a question tho ... I noted your law practice
is elsewhere but not in Florida. I know that you have commiserated with
someone about Florida Law or simply was able to look it up yourself. I still
believe that when the BOD posted an agenda on October, 26 meeting where
under New Business they noted a discussion will take place on a smoking ban
in the community. Of 34 unit owners only 5/6 individuals were on site that
included 2 BOD. Following two meetings in November which were adequately
posted there was never any mention of any vote on the subject matter of a
smoking ban. Further, I have indicated to the property manager and to the
BOD that at the Annual March meeting of Unit Owners ... this issue should be
brought up at that time. Be that as it may ... I do have an issue with
Maintenance of Landscape ... I believe I know the answer but I just need to
refer to my Documents. The BOD and the property manager tell us that SOD
REPLACEMENT cannot be done at this time until after season! They are wrong.


I'll contact you.
Thanks for your interest.
Adele
Hi again.

Yes, feel free to contact me again.
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TJ, Esq.
TJ, Esq.
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Category: Real Estate Law
Satisfied Customers: 12,473
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