QUESTION: I live in a two-story apartment building with eight units. I am a smoker and was approached by another owner about how smoking in my apartment is bothering him. I close my windows and use my air conditioner when I smoke. The apartment bylaws state there is no smoking in the common area, but nothing about in your own apartment. They have requested that I go out on the street to smoke. I find this absurd as I am smoking in my own apartment. A copy of Senate Bill 3262 passed in 2006 was given to me advising I am violating the law. I understand this law is for buildings with public access and not for private residences. I want to avoid any conflicts. Does this law apply?

ANSWER: No, the Hawaii Smoke-Free Law does not cover private residences, including apartment units and lanais.

The law covers public places and places of employment, enclosed or partially enclosed, said Julian Lipsher, program coordinator for the state Department of Health's Tobacco Prevention & Education Program.

Senate Bill 3262 led to Act 295, which became the Smoke-Free Law (Chapter 328J of the Hawaii Revised Statutes.)

It clearly states that private residences are excluded from the no-smoking prohibition, except when used as a day-care or health care facility. (This is different from a landlord-tenant situation, in which a landlord may rent an apartment as a nonsmoking unit.)

However, there is nothing prohibiting apartment or condo associations from establishing their own restrictions, Lipsher said.

The associations “;can, according to their own internal governance documents, go beyond what the law stipulates”; and prohibit smoking within individual units, he said. “;That is their prerogative and privilege, as long as they follow their own association rules.”;

Attorney Joyce Neeley, an expert on community association law and a former co-chairwoman of the Condominium Property Regime Committee of the Hawaii State Bar Association, provided an overview of the situation in the February 2009 issue of the Hawaii Condominium Bulletin, put out by the Real Estate Branch. See hsblinks.com/28n.

It's an issue that community associations across the nation have been grappling with, she noted.

Basically, state law allows private condominium associations to adopt rules regulating behavior that “;unreasonably interferes with the use and enjoyment of other units or the common elements by other unit owners.”;

Because there has been no court case locally about this issue, it's uncertain how the law would be interpreted.

However, Neeley pointed out that the state attorney general, in an opinion letter to a lawmaker, said that the way Hawaii law is now written, boards/associations could not prohibit smoking inside a unit unless they could show there was a nuisance or they amended their declaration/by-laws.

Meanwhile, in addition to some private landlords and developers across the country who have moved to prohibit smoking in their residential buildings, the U.S. Department of Housing and Urban Development last July issued a notice “;strongly”; encouraging public housing authorities to adopt nonsmoking policies in all their housing units.

However, the Hawaii Public Housing Authority “;has no plans to ban smoking at this time,”; said Stephanie Fo, chief of the Property Management and Maintenance Services Branch.

She said the issue has been discussed with Smoke Free Hawaii and she also has “;asked for volunteers to try a pilot at one of the sites, but no one wanted to do it.”;

QUESTION: Is there a law for smoking outside the door of our apartment?

ANSWER: Without knowing the details and the layout of your building, it's difficult to answer that question, said Julian Lipsher of the state's Tobacco Prevention & Education Program.

You can call his office, at 586-4613, to clarify what your rights are depending on the situation.

If you're smoking outside your apartment but in a common area, such as a walkway that's enclosed or partially enclosed, then the no-smoking law would be in effect, Lipsher said.

“;But, certainly, the consideration of (your) neighbors would be a factor,”; he said.

If, for whatever reason, you don't want to smoke inside your apartment, including “;the safety and courtesy of the people living in your unit, you would also want to be cognizant of who else is close to your unit.”;

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