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HOA Rule Forbids Couple To Smoke In Their Own Home Judge Upholds Homeowners' Association Order
TheDenverChannel.com ^ | 11/16/06 | TheDenverChannel.com

Posted on 11/17/2006 10:46:11 AM PST by TheKidster

GOLDEN, Colo. -- A judge has upheld a homeowners association's order barring a couple from smoking in the town house they own.

Colleen and Rodger Sauve, both smokers, filed a lawsuit in March after their condominium association amended its bylaws last December to prohibit smoking.

"We argued that the HOA was not being reasonable in restricting smoking in our own unit, nowhere on the premises, not in the parking lot or on our patio," Colleen Sauve said. The Heritage Hills #1 Condominium Owners Association was responding to complaints from the Sauves' neighbors who said cigarette smoke was seeping into their units, representing a nuisance to others in the building.

In a Nov. 7 ruling, Jefferson County District Judge Lily Oeffler ruled the association can keep the couple from smoking in their own home.

Oeffler stated "smoke and/or smoke smell" is not contained to one area and that smoke smell "constitutes a nuisance." She noted that under condo declarations, nuisances are not allowed.

The couple now has to light up on the street in front of their condominium building.

"I think it's ridiculous. If there's another blizzard, I'm going to be having to stand out on the street, smoking a cigarette," said Colleen Suave.

For five years the couple has smoked in their living room and that had neighbors fuming.

"At times, it smells like someone is sitting in the room with you, smoking. So yes, it's very heavy," said condo owner Christine Shedron.

The Sauves said they have tried to seal their unit. One tenant spent thousands of dollars trying to minimize the odor.

"We got complaints and we felt like it was necessary to protect our tenants and our investment," said Shedron.

The Suaves said they would like to appeal the judge's ruling but are unsure if they have the money to continue fighting. They said what goes on behind their closed doors shouldn't be other people's business.

"I don't understand. If I was here and I was doing a lawful act in my home when they got here, why can they say, 'OK, now you have to change,'" said Colleen Suave. "We're not arguing the right to smoke as much as we're arguing the right to privacy in our home."

Other homeowners believe, as with loud music, that the rights of a community trump the rights of individual residents. The HOA is also concerned that tenants will sue those homeowners for exposure to second-hand smoke and this could be a liability issue.

The couple said that they would like to unload their condo and get out of the HOA entirely, but they are not sure if the real estate market is right.


TOPICS: Constitution/Conservatism; Culture/Society; Government; Miscellaneous
KEYWORDS: readthecontract; smoking
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To: NathanR
Most homes are built so that they 'breathe'. If it doesn't people will have different set of problems in their homes. That means that smelling smoke through a wall is normal even in well built homes, let alone crackerjack conversions.

I have several years of residential construction experience and have never heard of a house "breathing" other than the air flow from the crawl to the attic or from the soffits to the attic. The interior of a house should be reasonably air sealed other than the HVAC system which only circulates the air while cooling or heating. There's no reason a multi-unit apartment/condo wouldn't be built the same way.

641 posted on 11/20/2006 5:42:51 AM PST by Niteranger68 (Big winners of election 2006: Democrats, terrorists, MSM, Hollywood, anti-war protestors, etc.)
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To: elkfersupper

It is conservative. I buy a house to have the "quiet enjoyment" of its interior.

The smoker is a forseable purchaser for the builder.


It is strictly a warranty issue.

The poorly reported issue in the article is NOT the smoking inside the house, the issue is the smoke which is permiating into the neighboring townhouses.


642 posted on 11/20/2006 5:44:45 AM PST by longtermmemmory (VOTE! http://www.senate.gov and http://www.house.gov)
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To: RacerF150

it sounds like a clothing store saying the shoes will strech, or that the ill fitting clothes will expand.


643 posted on 11/20/2006 5:47:05 AM PST by longtermmemmory (VOTE! http://www.senate.gov and http://www.house.gov)
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To: Sir Francis Dashwood
Are there constitutional limits on majority rulers 'amending away' inalienable rights?

You need to read the Constitution... States ratify Amendments... WITH SUPER MAJORITIES

You need to read the Declaration:

"When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with" SUPER MAJORITIES ...

644 posted on 11/20/2006 5:51:29 AM PST by tpaine
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To: AnalogReigns
These owners never signed up for that.

Immaterial. They signed up for an HOA that had the power to amend the rules.

If you don't like your neighbors voting on how you can use your house, don't buy into an HOA.

645 posted on 11/20/2006 6:06:39 AM PST by wideawake ("The nation which forgets its defenders will itself be forgotten." - Calvin Coolidge)
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To: jammer
Did you read the article?

Of course I did. You, however, failed to read my posts.

646 posted on 11/20/2006 6:07:31 AM PST by wideawake ("The nation which forgets its defenders will itself be forgotten." - Calvin Coolidge)
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To: vamoose
You argument applies to anyone buying into an HOA property

Of course. Moral of the story: don't buy into an HOA.

647 posted on 11/20/2006 6:08:37 AM PST by wideawake ("The nation which forgets its defenders will itself be forgotten." - Calvin Coolidge)
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To: TheKidster
Not if you've been on the wrong side of one.

Oh, Isee.

So, if your HOA has taken advantage of its rules in order to personally inconvenience you, it's the exact same as being beaten, starved and gassed to death in a concentration camp.

Try again.

648 posted on 11/20/2006 6:11:16 AM PST by wideawake ("The nation which forgets its defenders will itself be forgotten." - Calvin Coolidge)
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To: Moonman62; SheLion; Fierce Allegiance

Hear that Fierce? You're a dumbass, LOL!

That statement is along the same lines as the Kerry "Stupid" statement.

Do you know any past presidents that smoked? Reckon any scientists or physicists smoke. Surely not. They are way too smart.

I dip so I guess that makes me a redneck backer chewing dumbass. If only you hadn't started smoking. Think of the success you could have had.....


649 posted on 11/20/2006 6:13:49 AM PST by HOTTIEBOY (I'm your huckleberry)
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To: tpaine

If you want to amend the Constitution... see Article V.


650 posted on 11/20/2006 6:21:23 AM PST by Sir Francis Dashwood (LET'S ROLL!)
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To: Sir Francis Dashwood

I have read the constitution. I got A's in all my constitutional law classes. Nothing I side is disputed by your citation.

I have NOT read all the States Constitutions by I would suspect in many a majority in large number of states (3/4ths?) could call for a convention. MY point (please don't go Socratic on me) is that even the Constitution of the United States is not set in stone. AND if a law violates it it can be challenged. That said laws that limit smoking are generally constitutional. You can only challenge that in one venue - the courts. On FR you can say what you want.

You only have the right to smoke because your fellow citizens say so.


651 posted on 11/20/2006 6:21:52 AM PST by Sunnyflorida ((Elections Matter)
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To: NathanR

"Most homes are built so that they 'breathe'."

Correct. If these people do not want to live by the regulations the agreed to they can move.


652 posted on 11/20/2006 6:23:28 AM PST by Sunnyflorida ((Elections Matter)
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To: Sunnyflorida
...even the Constitution of the United States is not set in stone.

Article V...


You only have the right to smoke because your fellow citizens say so.

I do not smoke...

653 posted on 11/20/2006 6:25:25 AM PST by Sir Francis Dashwood (LET'S ROLL!)
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To: Sir Francis Dashwood

"THEY NEED TO START A MEDICAL TOBACCO INITIATIVE!'

As an Anti, I do support the rights of smokers to organize, initiate and fight through the American political system to achieve their objectives. What is pathetic is they do not support mine.

They are like the democrats, when they loose an election they try to impune the process. If they want their way they need to win elections.


654 posted on 11/20/2006 6:26:23 AM PST by Sunnyflorida ((Elections Matter)
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To: Mogger

And exactly what is it about you that makes you NORMAL???


655 posted on 11/20/2006 6:28:20 AM PST by xowboy (Those who would give up FREEDOM in the pursuit of HEALTH deserves neither)
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To: SheLion

You know I countered your Outback post, a while back. You need to learn economics. If places raise prices it is because there is MORE business. You lower prices when business falls off.

You need to quit whinning and get those 80% out to vote - if you think it'll make a difference. I support your right to put it back on the ballot. Go for it.


656 posted on 11/20/2006 6:31:16 AM PST by Sunnyflorida ((Elections Matter)
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To: TheKidster
I hate the health Nazis, and I think if you want to smoke, you should be able to.

If, however, you ruin others quiet enjoyment of their apartments and make their furniture and clothes stink, I think they have a perfect right to make you stop.

657 posted on 11/20/2006 6:31:46 AM PST by Jim Noble (To preserve the Blessings of Liberty to ourselves and our Posterity)
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To: SheLion
Smokers have no idea how horrid their stench is to normal people.

THEN STAY AWAY FROM SMOKERS HOW HARD CAN IT BE???!!!!

You obviously didn't read the part about the prevailing wind or chose to ignore it.

Believe me, I do go to great lenghts to avoid smokers and their stench.

In some situations you're just stuck due to their inherent ignorance.

IMHO anyone born since the truth has been told about the effects of tobacco, and still took up smoking... well... let's not go there. Can we say Darwinism though?

Just too bad the first pack doesn't kill them instead of thousands.

That way they get a chance to reproduce and spend a (although somewhat shorter) lifetime stinking up the place for normal people.

658 posted on 11/20/2006 6:31:47 AM PST by Mogger (Independence, better fuel economy and performance with American made synthetic oil.)
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To: SheLion
The most important Liberty we have as Americans is not to smoke or not to smoke; it is the right to make the Laws - either through our representatives or direct initiative.
659 posted on 11/20/2006 6:33:36 AM PST by Sunnyflorida ((Elections Matter)
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To: y'all
"-- SUPER MAJORITIES RULE --" so claim certain misguided freepers:

"-- What makes a government a republic or a democracy, and how does this distinction relate to politics today?

Democracy as a form of government has been described as a "mobocracy," because it represents mob-rule, or the unbridled will of the masses.
In short, a simple majority has unlimited power to restrict or eliminate the rights of any minority or individual citizen.
-- In reference to the dangers of unbridled majority rule, the Framers had repeatedly warned against the "excesses of democracy."

Thus the Framers of our Constitution decided in peaceful assembly in 1787 to create a representative republic under a written Constitution. "The American Experiment" as it has been called, was the first time a government had been instituted in which the common people retain the majority of their rights and the ability to govern themselves, while at the same time the minority and individual were protected from the arbitrary or selfish desires of the masses.

The principal instrument which accomplished this was the Constitution, the supreme law of the land which formed our government, and provided the standard by which all subsequent laws are measured."

We are all pledged to support & defend the Constitution. - Calling for unbridled majority rule is akin to sedition, imo.

660 posted on 11/20/2006 6:36:04 AM PST by tpaine
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