 Hello, how welcome to condo insider it's Thursday at 3pm and we're going to have a very vibrant discussion today primarily because of some recent actions our legislature took with regard to condominiums and I like to say this show is about the go up and smoke. I say that because we're going to talk about smoking and what the rules are and what the proposed legislation is and I brought in a very good friend of mine Tim Epicella who has sponsored shows here have been a host of a show here who is I thought he was smarter than this but he served on board member zones in condos general manager of a condo you have condos in your blood welcome to the show thank you Richard thank you for having me and I'm glad you said it you thought I was smart enough apparently I'm not well my friends always say I say to them I'm smarter than I look and they say that's true no one can be that dumb and look that stupid you know but anyway back to the show tell us a little bit about yourself how you got to Hawaii what you do well I came here about 11 years ago and you know I've always been involved in condominium boards I only believe that if you're an owner you get engaged in the community in which you live that's always been my my modus operandi from the first condo I bought in 1991 I think it's way back in the day and I've always been involved in the boards and governance and trying to maintain and enhance the value of the buildings that you live in and invest in and so it just took a natural course from that so I've been on boards for over 23 years and I certainly did my own building management and this property in Seattle was over the water it was more of a shift than it was a condo so it took care of that building for many many years and you know there's a lot that goes into the care and maintenance of the building I'm going to ask you this question I didn't tell you I was going to ask you this question before we go into smoking you know we at the legislature see a lot of advocates come out and talk about how bad the boards are and how incompetent and self-serving has that been your experience in general a small minority ourselves serving a very small minority and I think those days are going away I think there's more emphasis on education of board members what their fiduciary responsibilities are what their roles are why are they there in the first place and I think the days of board members or people getting on the board to serve their own purpose I think those days are going away I saw it very much in the you know in the 90s and you know some part of the early 2000s but I don't see that so much anymore I think most people who serve on the board are dedicated and they want to see their investment grow and they want to take care of the building in which they live well I think today we're going to have a smoking I do want to say one thing we didn't mention with regard to your background you're on the board of the Hawaii council community association you're also on the legislative action committee for community association institute so you certainly demonstrated your interest in our industry and we thank you for that thank you Richard because it takes interest of people to do the changes you've talked about that the associations are getting better and stronger with their boards but let's kind of review from your perception the issue of smoking you know there's always the smokers and non-smokers and there's always one against the other what's your understanding of the current law and with regard to condos and their rights to address smoking well my understanding is that if an association feels that smoking is detrimental to other residents that they do have the right to initiate a change to the bylaws now that's not to say that's an easy thing to do we know changing the bylaws takes a lot of time and a lot of organization and sometimes a lot of money to pay for attorney's fees and opinions and the actual legal documents but it's something that I think all associations have the right to do and when it comes to smoking certainly on a generic sense about ethics is my rights and responsibilities stop where yours rights and responsibilities start and when it comes to smoking and in a tight you know quarters of you know people living next to each other in the close you know in closed quarters I think those rights have to be very much looked at well correct me if I'm wrong taking one step backwards even on that batter today state law says you can't smoke in the common elements period number two is the debate over the lanais because sometimes the declaration makes the lanai an apartment sometimes it's a limited common element then you get in this issue of noxious odors would it be smoke or some foreign food you're cooking on your lanai that causes or incense you know but the lanais has always been a debate within the industry about that issue depending whether it's a limited common element or apartment etc and then there is always within the apartment that if it's not otherwise specified in the bylaws you have a right to smoke period and there's nothing that board can do about it unless they change the bylaws and that's that's kind of the framework where we're going to begin I think that's a fair assessment of yes I think that's fair um again I I really think that um you know there is it's a balance because you know at what point if I'm doing a completely legal activity within the confines of my own unit and it's not adversely affecting any other resident doesn't association have the right to tell me I cannot um you know we talked about I have this feeling that you know associations per se are not legal governments but in a in a sense they are governments and so to what point does a government have the right to tell me that a legal activity that I've been doing all my life or maybe you know whatever is suddenly now forbidden and and to be prohibited so that's you know it's a fine balance on this yeah and I understand the issues I mean as we were chatting before the show began I'm one of these strange people who've never even tried a cigarette before but I do know I can tell when there's second-hand smoke in my eyes water and I don't want to say I'm allergic but certainly I'm I'm sensitive to the second-hand smoke and there's so many tons of articles written about the the damage of second-hand smoke I'm going to say if that's prevalent in your life I'm so we understand those issues but as I said before to show begin well if it's so bad why don't you just ban cigarettes all together you know I mean if they're going to allow them and say they're legal now you have groups pitted against each other with respect to that but going back to my next question is going to be all right we know that limited common elements are debatable in the eyes we know the common elements absolutely boards can enforce no smoking and you mentioned it briefly if they want to make it a non-smoking building if the majority of the owners here want to make it a non-smoking building under the current beliefs and the current laws everyone believes it takes a vote an affirmative vote of 67 percent of the owners to change the bylaws to be non-smoking and you've had experience with that I have and and the building that I am a board member of as well in Waikiki back in 2015 it came up as an issue it actually came up as in the at the annual meeting and some people you know voiced a concern about second-hand smoke and it just caught traction and before you knew it we were in the process of changing the bylaws was there a public process not a whole lot not a whole lot other than the open board meetings where it was being discussed there weren't you know special sessions you to identify who were smokers and who weren't smokers of that of that complex so these board meetings were they contentious at all or no no and I think what you're seeing in the population over the decades is that you know there are very few smokers there is not a whole lot of smokers so jumping ahead a little bit when the final vote was taken when we finally got to 67 percent which by the way took a year it took a full year to get to that point it was 10 percent were opposed to it because presumably they were smokers I voted no against it because I just didn't feel that you know a legal activity should be prohibited by an association as long as it's not adversely affecting your fellow residents yeah the way I kind of look at this is that because I would tell you I'm not a fan of smoking that being said I understand the argument on the lanais because you really are putting yourself in a position that it's likely that second-hand smoke is going to go to another apartment but within their own private unit I don't know how you can say to someone this legal activity because you're allowed to buy cigarettes today yeah I I suffered that dilemma as far as going back and forth as a board member we're trying to pass this but as a as a homeowner as well I had to you know weigh the counterbalance to that argument and I was I was conflicted so you guys passed the bylaw amendment say you're a non-smoking building we did so what did you do with the smokers well that's that's an interesting point we actually had to partake in a evaluate of mediation which is you know something you're it's near and dear to your heart my act 197 one of my favorite things that's right and that was a particular case where someone had purchased into the building apparently wasn't aware that this process was going on you know to change the bylaw it takes time you know it takes a year but you're even before that you're still working through you know getting legal opinions and things of that nature so all in all is at least a year and a half so he had purchased somewhere in that time frame and then said what do you mean you've changed the bylaws I'm a two pack a day smoker and so we did go to mediation and ultimately the association prevailed because in our minutes these things were being discussed when he bought the unit to begin with and his certificate you know of disclosure it was mentioned that you know in the minutes that we're going through this process of prohibiting the smoking I'm going to say this and you know even though I mold my recollections usually pretty good is that there was actually a lawsuit going back a few years ago where an association changed its rules from smoking to no smoking throughout the whole building and the judge ruled in that case is that when you're buying a condo you realize they're self-governing and that the owners control what the rules are going to be and you take that risk when you're buying a condo it may not be the same if the majority of the owners are in some cases a supermajority like 67 percent can change these rules and that's a risk you take when you buy an interesting was that a hawaii state law or is that mainland somewhere in the mainland that was a hawaii case it was it goes back in the early stages because a lot of condos I shouldn't say a lot a number of condos have become non-smoking and a number of condos have considered it abandoned the idea for similar reasons you stated you know but back to my question on the smoker so you have a non-smoking building now what are you doing to enforce it well Richard there's not only the $64,000 question but a whole lot more than that I see it's almost impossible to enforce unless you directly witness someone with a door open and you see them smoking but if that door is closed you know how do you enforce that you you have no legal rights to enter unless there is a maintenance emergency you know all it takes is someone to say don't they don't even answer the door so I mean well the the board or the resident manager goes along the hallway he thinks he smells smoke they don't open the door and he says I think you smell smoke in there and he says I'm using a smoked flavored aerosol can as my my way to smell the kitchen cooking you know I would yell through the door your nose blind go away so you know how do you prove some a smell that cannot be you know exactly proven unless you verify it you can't was there did your board ever consider like having a a smoking area where the smokers could go or saying to the smokers we're giving you three years to pick the habit well yes that was discussed when it came to this mediation they thought well maybe we can have a place behind the pond behind the rocks against the next property as mitigation for this this dilemma and ultimately the board just said no we we passed it we not only is it on you know all the common area but it's also inside the unit and that's what we're sticking to so an unintended consequence of our passing or mending the bylaws about no smoking in the unit is now the sidewalk becomes smokers haven and so we have a number of residents who are out on the sidewalk in front of the property and that's where they're conducting their vaping or they're smoking and what an image that is I mean is that is that something that you know the association wants to have is a visual for the property and the answer in my opinion is not really well it's interesting I had a property on kawaii that passed no smoking for the building but they decided to do the opposite and create a smoking area so the residents could not smoke in units not smoke on the eyes not smoke at the pool we do have a smoking area and they put it right next to the trash contractor really so it wasn't exactly the most desirable place but believe it or not people used it but it seems to me we're creating an environment of smoker versus non-smoker we have people who are addicted when it's something that's lawful when I think that is the operative word addictive what do you say to those smokers that are addicted and remember quitting cigarettes is just as hard as anything else in fact times nicotine is harder than a lot of other addictions so what do you say to someone is is completely addicted and all of a sudden you're saying thou shall not smoke inside your unit well I know I'm addicted to red wine but I tell people I listen to people online all day long I drink red wine all night long I only have one glass but anyway we're going to take a short break and come back and talk about what our legislature is doing about this we'll be right back in a minute aloha and welcome to at the crossroads I'm your host Keisha King you can catch me every Wednesday alive at five I'll see you there aloha this is Winston Welch I am your host of out and about where every other week Mondays at three we explore a variety of topics in our city state nation and world and events organizations the people that fuel them it's a really interesting show we welcome you to tune in and we welcome your suggestions for shows you got a lot of them out there and we have an awesome studio here where we can get your ideas out as well so I look forward to you tuning in every other week where we've got some great guests and great topics you're going to learn a lot you're going to come away inspired like I do so I'll see you every other week here at three o'clock on Monday afternoon aloha welcome back to condo insider with my good friend Tim Epicella talking about how to keep I guess a project from going up in smoke or should say smoking you know we had some brief discussions about the current rules and we talked about the efforts it takes to amend the bylaws but the one where we didn't mention was marijuana so if you're a non-smoking building from your understanding can you prohibit someone from smoking marijuana well in the case of the condo that I'm a board member on in Waikiki this we we were grappling with us before the state actually did pass the medical marijuana bill so you know we have the argument is if if I have a license you know a medical marijuana license doesn't that allow me the freedom to do so because to say you can't smoke in your you have to go out on the street by de facto you're defining me as breaking the law because you're not allowed to smoke marijuana in public so if you can't do it inside your unit where are you supposed to smoke your medical marijuana yeah on our show it's an interesting argument because the lawyers and people we've had on our show have all said that if you're non-smoking building you can't smoke marijuana because there's other ways to ingest marijuana whether it be I guess in a brownie or through an IV needle or whatever you're not saying they can't use marijuana you're saying there's no smoking whatsoever and that would be the common industry practices if you have a non-smoking building you can't smoke marijuana that doesn't mean you can't grow your certain number of plants or you can't take it through other sources well that's the other sources I think is the solution is that you there's other ways of getting the the benefits of cannabis into your bloodstream than other through inhalation and that's the secret right there and subject to the lawyers who all have told me they're smarter than I am that uh that we should put it in a house rule is probably that if you have a non-smoking building this applies also to some kind of disclosure but let's talk a little bit about you know we get this almost every year but we have two bills that are still alive in the legislature today I want to get your take on them well first off they've made it this far now usually they don't even make it this far so what do you think the difference is in this session versus previous sessions why is this getting more traction with legislators well I think it's been the last two years anyway they've had this come up and and they haven't gone very far but um I think it's just they're continuing the pound on the desk and make this an issue the the uh these health organizations and I'm not saying they're wrong on their opinion but they're making it a bigger cry and let's let's face it probably 10 to 15 percent of the population's smokers 85 percent are not in my example the supermajority is going to say I don't want smoking because otherwise they'd be smokers right right so the odds are stacked against the non-smokers in some respect but let's look at what the legislature said they want to do the first first of all they were companion bills they came in with the same stated purpose the first one in the house basically says two things and I want to get your take on it number one that the board not the homeowners the board can set up a house rule and say one that the house rule says if you wrench your unit out not that you live there you rent it you're an investor owner the board can mandate you putting in your private lease rental agreement you have to put a non-smoking provision in your private rental agreement the second part was it gives the board the right to declare and make a house rule no smoking on the lanais so what's your take on it my take is it's one before the other is it's you know there's a maybe a priority and that is no smoking on the lanais because it's common area and two again if if the building saying there's not going to be smoking inside the unit then I think they have the right to enforce a provision that prohibits landlords from placing a smoker into the unit this is for me as black and white you know the industry our official position is we're monitoring the bills because the legislature is like a sausage factory what goes in is not what comes out and you don't want to watch it in process and so the bill that came in had this intended purpose and the first senior rose to our attention is was that the discriminatory to have a tenant can't have the same privileges because there's fair housing laws right and there's there's restrictions against having different rules for tenants than you have for owners right and that's fair housing federal law right so the first senior rose to our attention was well how does this fit into the fair housing laws where everybody's kind of saying well lanais kind of makes sense to solve that argument where everybody said it's like a sausage factory right the same bill went into the senate you know what they did they didn't take that bill they amended it that the board as a whole can make it a non-smoking building without the vote of the owners without the vote of the owners yes oh i have issues with that oh very much so i have issues with that i mean i i would really like to see us the 67 percent adopt a vote yeah well see here's the issue to me on this so this year's board votes for no smoking next year's board votes for smoking the following year board votes for no smoking this way well that's that's that's the dilemma of a house rule provision versus a declaration that's right so i'm saying if they give the board that authority so what happens if i'm a person i sign a lease because of the smoking building and i go in there and two months later a new board gets elected and they make it a non-smoking building i mean it seems discriminatory on its face yeah but then in the next year because i'm not happy the board shifts and now it's a smoking building or a non-smoking goes back and forth well if i'm the landlord i'm gonna have a provision my new lease stating the board may change things that are not mentioned in this lease but you know my question is it affect housing are we are we making it more difficult or easier to do rentals and get rental housing if we put restrictions they make it more difficult so where the smokers gonna go to get housing if in fact everybody takes that rule and the super majority are already non-smokers and how does that all fit into this whole thing you don't ask easy questions at all so these are tough ones no it makes me want to become a lawyer they're going to make all the money on this whole damn thing absolutely as ours did to help us amend the bylaws so you know i think we have to be cautious now i would be to answer your question clearly we just finished what's called first decking that means if the bill is not in the final committee that means it's dead well of the 40 bills that introduced this year there's maybe 15 left now of which two of them are these smoking bills of which if you go back there was another bill in the house that had the identical language and house deferred that bill but doesn't mean they deferred it for any reason they made this new we'll deal with it in the house bill 810 as our vehicle bill as we call it well right we'll defer that one because we're going to deal with the issue you're going to do it on the Senate bill yeah and one of those so i don't think anyone really knows where this is going to go but i think it's going to create issues where we're putting in the in the ownership or the occupancy of the residency smokers versus non smokers i think i think the not the smokers will feel alienated and i think in our case you know three years ago um those smokers were feeling alienated they feel like second-class citizens they're on the sidewalk right now um they may or may not throw away their cigarette butts in a receptacle versus on the sidewalk you know um there's you know there's indirect protests sometimes and and that we witnessed that again that's one of the unintended consequences of passing this years ago what what do you see the putting this in a more strategic perspective the social implications of this whole thing well i i really do see this very much as if it were a helmet law for motorcycles i see it very much that's very similar to the uh don't walk with the cell phone you know don't look at your cell phone when you're crossing the crosswalk here that was passed last year in Honolulu um these are bills that if you really look at the the the cause effect is what does the society's cost as a whole for health care and how much um does it cost in an er for someone who doesn't wear a helmet who has now you know a devastating head trauma how many hundreds of thousands of dollars in medical costs are incurred because of the irresponsibility of someone who wants to ride a motorcycle without a helmet um again from the motorcycle's perspective hey it's my life it's my freedom and don't tell me don't be a nanny state and tell me how to live my life but from a societal point of view when we all have to have shared health costs experience that's when you start seeing these kind of laws even back in their early days with seatbelt laws and you know things of that nature if i was going to propose a law that if you're a smoker you would sign an indemnity agreement against the health insurance the state of hawaii and everyone else that you're taking the risk of smoking and i won't come to you for my health care cost indemnity and hold harmless yes yes that's what you need to do you know because i don't see a way around because you brought up the cell phone bill i mean i'm sure you see every day people walking across using their cell phones both in the car as well as in the crosswalk so that gets back to how enforceable is it well and why is this coming to be um is it really the dangers of second hand smoke when you smell a whisper of smoke that might be coming through your vent it may be but is it the carcinogenic exposure that is you know the real hazard of second hand smoke on a prolonged basis i don't know so does that mean you're gonna run from governor and i can vote for you and you'll solve all these problems governor of an island we don't even know the name of sure well anyway we're on condo inside are talking about the challenges of smoking we've discussed the current rules the current practices if you want to be a non-smoking building you need 67 of the owners to vote affirmatively for it the legislature is kind of messing around with this a little bit trying to say well let's let the board make the decision which will create all sorts of hidden problems and conditions but we'll see where that goes in the legislature and i want to thank my guest him for being on the show Richard very much for having me appreciate it you're a wonderful guy i've not got to know you really well over the last 10 years or more and uh i thank you for all you do in the industry thank you very much we thank our audience for watching condo insider next week we're going to talk about the legislature again and proxies and who you can give your proxy to because now certain groups don't want you to have the right to give proxies to whoever you want to give them to they want to steer by the proxy itself and take away choices so we'll talk about that next week with Steve Lansing aloha and thank you for watching condo insider