An attorney for the homeowners association at the Centennial affordable-housing complex says a ban on cigarette smoking in its privately owned units is viable and will hold up in court.

When the homeowners association board proposed banning smoking in the 92 privately owned condominiums, some residents — smokers and non — balked, arguing that the ban would set a dangerous precedent for infringing on civil liberties and possibly violating the constitutional right to privacy.

“Preliminary findings indicate that we will be able to make Centennial a ‘smoke-free environment’ if we so choose,” homeowners association board president Ed Cross wrote to residents in a letter this week. “Legal precedent has stated that smoking is not a constitutionally protected right.”

The association’s homeowners board on July 8 voted 5-1, with one abstention, to explore the legal viability of banning smoking in the complex. Its attorney, Fred Peirce, has since prepared a legal argument for the ban that he will present at a Centennial homeowners meeting on Aug. 19.

That meeting will also include remarks from Aspen Fire Marshal Ed Van Walraven, who recommended that Centennial ban smoking after a June fire caused by a smoldering cigarette destroyed 10 apartments in the Castle Ridge affordable-housing complex. (Shortly after the Castle Ridge fire, a smoldering cigarette at Centennial caused a small fire that caused no damage but did spark some panic among residents about a Castle Ridge-like inferno).

The ban could be put into effect by amending their “condominium declaration,” which requires a 66 and 2/3 majority vote by homeowners.
“I am assured by our attorneys that they feel that any amendments they draft and which are approved by the proper percentage of owners at a properly noticed meeting will be based upon solid legal precedent and have a strong likelihood of being upheld by the courts,” Cross continued. They are expected to bring the ban to a vote of homeowners at their December annual meeting.

Cross explained in an interview that, although his motivation to curb smoking in his complex has been spurred by the outside fire danger posed by cigarettes, the legal precedents they intend to use are based on a health-hazard argument. “At this stage, it’s a health and safety issue,” Cross said. “My big personal thing is the fire threat, but the precedent set to make it work is more about health danger.”

Cross has previously cited a Golden judge’s ruling in favor of banning smoking in a privately owned four-plex because it violated non-smoking neighbors’ “right to quiet enjoyment.” A similar argument, he has said, can be made for fear of fire caused by cigarettes.

But it seems some residents do not want to pay for a potentially protracted legal battle to effect the ban.

Andrea Karson, the lone dissenting vote on the homeowners board, distributed literature listing facts about smoking and fires to residents before Cross’s letter came out. She said that as she talked with neighbors, a majority said they were wary of the smoking embargo.

“A lot of people would support the ban, but they are not willing to spend anything on legal fees,” Karson explained on Friday. “If it comes down to it, they would rather not have the ban.”

Those sentiments are echoed in a letter from Centennial condo owner Jason Closic to board member Karson and Eric Pekkala, a resident and smoker who has been vocally opposed to the ban.

“The legal fees may not be worth the end results,” Closic wrote to the pair. “Let’s find a means that will be effective. Consider education and penalties. ... As a Centennial resident, I don’t want bans and restrictions. I don’t want heavy legal fees. I want my neighbors to respect my rights and not disturb or endanger my life or possessions.”

Closic also pointed out that Centennial residents are fined $50 for leaving bicycles in stairwells, but the resident whose smoldering cigarette caused the June fire scare faced no penalty.

As debate on the ban heats up, board president Cross says he welcomes all perspectives and hopes all residents participate in the process. “We are not railroading this down anyone’s throat, and we are not trying to discourage people from speaking their minds,” Cross said. “We want to air it all out.”

andrew@aspendailynews.com