No smoking anywhere: This attorney wants condo associations to completely ban cigarettes
Daily Business Review
17 May 2017
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?"
on a two-tier mission
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
But that won't happen without opposition from smokers who'll likely
argue the effort infringes on their right to quiet enjoyment of their
"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
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
"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
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."