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No Smoking Anywhere: This Attorney Wants Condo Associations to Completely Ban Cigarettes

Samantha Joseph, Daily Business Review

5/15/17- Fort Lauderdale— Dennis J. Eisinger, with Eisinger Law, and principal, OceanLand Investments. J. Albert Diaz

There’s no smoking allowed in attorney Dennis Eisinger’s condominium projects. Not in the units. Not at the pool. Not in the parking garage.

And if Eisinger had his way, that would be the case in every Florida condominium.

“Smokers are not a protected class” under the federal Fair Housing Act, he said. “You want to smoke and kill yourself? Fine. But why impede someone else’s right?”

The real estate lawyer-turned-developer is on a two-tier mission: help associations amend their governing documents to prohibit tobacco use, and lobby state lawmakers to champion a bill to impose legal penalties on condo owners who allow emission of secondhand smoke from one unit to another.

But that won’t happen without opposition from smokers who’ll likely argue the effort infringes on their right to quiet enjoyment of their homes.

“It’s easier said than done,” association mediator Michael Gelfand of Gelfand & Arpe in West Palm Beach said. “They can’t even enforce no smoking on airplanes without threatening to eject smokers at 35,000 feet … But it’s an interesting proposal to regulate literally in one’s home and bedroom, when the (political) rallying cry now is there should be no regulation.”

But in an era of landmark verdicts and class actions against tobacco manufacturers, Eisinger is poised for the fight, working with community organizations that want to change their rules to ban tobacco. As founder and managing partner of Eisinger Brown Lewis Frankel & Chaiet in Hollywood, his firm represents real estate developers and about 600 community associations across Florida and encourages them to make the switch, according to marketing materials. He also influences future attorneys as adjunct professor of law at the University of Florida Levin College of Law in Gainesville, and guides executive decisions as a partner at a real estate development firm erecting tobacco-free luxury condos in Fort Lauderdale.

Eisinger said no personal history or illness-related tragedy drove the quest that has since seen him become a board member of the American Lung Cancer Association’s Broward chapter. But he offered early advice to Dr. Joyce Starr, an advocate who authored “Smoke Free Condos” and led a campaign to convince 75 percent of owners to vote to amend an Aventura association’s declaration.

“He was recommended for being a phenomenal attorney with a deep heart,” Starr said. “At that time he was not a developer, but I think the interaction heightened his sensitivity to how this affects people in condo associations.”

The process was arduous, according to Starr, who spent about 10 months building support for the change after a few neighbors’ smoking reportedly grew so excessive the fumes permeated most of the building. It involved gaining a seat on the association board, convincing others to seek the amendment, contacting unit owners on several continents, arranging a vote, and then mailing and counting ballots. In the end, the association spent between $8,000 and $10,000 in legal fees and administrative expenses.

“It has to follow the letter of the law. Every ‘T’ has to be crossed and every ‘I’ dotted. It needs to be a perfect process, or it could be contested later on,” Starr said. “‘There is no right to smoke in a multifamily building under law. But if you want to stop it, you have to take legal steps.”

Eisinger took those steps upfront for the projects he’s co-developed, creating incorporation documents that ban tobacco smoking in units and common areas, except for private terraces outside units.

“I always said if I ever built anything I’d make it no smoking,” Eisinger said. “No developer has ever done this, because theoretically it’s not good for sales. You’re going to freeze out a large percentage of buyers who are smokers, but I think the tide is changing.”

As a partner in Ocean Land Investments Inc., he co-developed AquaVita Las Olas condos, Aqualuna Las Olas, AquaMar Las Olas, and AquaBlu Fort Lauderdale.

The projects each offer 20-35 units priced between $1.2 and $2 million, which have all sold out despite prohibiting tobacco smoking from the outset, according to Eisinger.

“There’s absolute disclosure relative to that,” Eisinger said. “I feel very confident that there will be no challenges.”

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