Navigating smoking restrictions in retirement villages

Smoking poses a well-documented risk to both smokers and those exposed to second hand smoke, a fact that prompts frequent questions from retirement village operators about handling smoking issues when they arise within units or shared areas. Here’s an overview to help operators understand their legal and contractual obligations and effectively manage smoking-related complaints.

Understanding Legal and Contractual Context

The first step for operators is to be familiar with:

– Relevant state laws and regulations; and

– The residence contracts, village rules, and any by-laws in effect at the village.

Each state has different legislation governing smoking, which may fall under retirement villages legislation, workplace health and safety laws, or specific tobacco, smoking, and e-cigarette regulations. Some states prohibit smoking in multi-unit residential accommodations, aged care facilities, or prescribed public areas, while others limit restrictions to specific workplace and shared spaces.

The Role of Operators and Residents

As retirement villages are also workplaces, operators have a responsibility to address smoking to ensure a safe environment. Increasing awareness of the health risks associated with smoking has led many operators to incorporate smoking limitations or prohibitions within residence contracts and village rules. In some jurisdictions, residents also have the authority to pass by-laws concerning the use and enjoyment of the village, which are increasingly being used to restrict or prohibit smoking.

Reviewing Contracts, Rules, and By-Laws

When dealing with smoking complaints or implementing a smoking policy, operators should thoroughly review all relevant residence contracts, village rules, and by-laws. There is no prescribed statutory wording for smoking restrictions, so the scope of any limitation or prohibition will depend on the precise language used.

In older villages, multiple versions of residence contracts may be in place, each with potentially different terms on smoking. It is important to keep this in mind before implementing a smoking policy.  For example, a rule prohibiting smoking in units or common areas may conflict with a residence contract term allowing smoking in certain parts of the unit (e.g. bedrooms, which was a common term at one point in time).

Setting Clear Expectations

For villages where smoking is limited or prohibited, discussing this policy with prospective residents at the outset is ideal. Failing to inform a resident of smoking restrictions until after they’ve moved in could lead to contractual disputes or Tribunal proceedings.

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