Smoke Gets in Your Eyes

It was the shot heard 'round the co-op world. When the board at 180 West End Avenue passed a policy in April forbidding new buyers from smoking in their apartments, media inquiries started pouring in from as far away as England, Germany, even Japan.

Realizing the board had set a precedent that was worldwide news, shareholders in the 452-unit building on the Upper West Side started coming forward with questions — and suggestions — of their own.

The board, caught by surprise in this crossfire, decided to shelve the ban while taking the residents' pulse. Questionnaires were circulated, asking if shareholders were in favor of the ban or opposed to it, and also soliciting suggestions on how to implement and enforce it.

"They got back several hundred responses, close to 300," recalls Stuart Saft, the board's attorney for the past eight years and a partner at Wolf Haldenstein Adler Freeman & Herz. "Many of the respondents sent back detailed suggestions. The board set up a subcommittee to review the questionnaires."

Saft, who had advised the board as it was crafting the initial smoking ban, will not predict when the board will decide on a final course of action. But he does acknowledge that the media's "feeding frenzy" caught him and the board by surprise.

"Frankly, we didn't talk about the political aspects of it," says Saft, who has practiced co-op law for 20 years. "I assumed the board knew the politics of the building, and I dealt with the legal side, which is what lawyers do. But we found out that there's a big political undercurrent, which is a result of all the publicity." (Board members declined to be interviewed for this article.)

As originally written, the rule at the 29-story building required potential buyers to declare whether they are smokers, and it would have prohibited smoking in apartment units of residents who moved in after April 22. The ban would not have affected people already living in the building. A new owner who smoked — or allowed others to smoke — in violation of the policy could have been forced to sell.

While such an outright ban on smoking in co-ops would have been the first of its kind in the nation, it turns out that other New York boards have been quietly moving in this direction for years. About five years ago, Mary Ann Rothman, executive director of the Council of New York Cooperatives and Condominiums, started hearing about co-op boards that were asking potential buyers if they were smokers.

"In truth," Rothman says, "we have other buildings which, with less fanfare, have asked about smoking habits on applications. They've made it known to buyers that they're a non-smoking building. This has narrowed the field of potential buyers, but it has also enhanced it for the small subset of people who want to live in a smoke-free building."

She notes that these buildings tend to be smaller, and therefore more manageable, than the 452-unit behemoth at 180 West End Avenue. "I think what's offensive to people is the 'smoke police' — some sort of inspection method inside people's homes," Rothman says. "I think that's reaching pretty darn far. It's the stuff soap operas are made of. I hope the policing will be handled in a reasonable way."

Saft says the board at 180 West End Avenue believed the policy would be "self-policing." "People who smoke would not be inclined to buy in the building," he says, adding that the board did not decide to review the ban because it feared legal challenges; the issue, he insists, is political. "We did a lot of research on whether it could be considered discriminatory. We concluded it would not be discriminatory because smoking is not considered a disability."

But others in real estate believe that any such ban will inspire legal challenges. Steve Miller, president of Plymouth Management Group and a member of the Association of Co-op and Condo Managers, says that property managers across the city are following the story with keen interest. If a smoking ban goes into effect at 180 West End Avenue, he believes it will be challenged. "There has to be some sort of court challenge," Miller notes. "In my experience, whenever there's a new rule, someone tries to break it."

Beyond any potential legal challenges, he adds, there are questions about what a smoking ban would do to a property's value. "It's really hard to tell what it will do to value," Miller says. "I don't think people want to be bound by all these rules and regulations. I think there'll be some backlash to that. It's kind of draconian, a little too Orwellian. How do you enforce it? Do you hire a snooping dog? It's very invasive."

Others doubt that a smoking ban could be successfully challenged in court or that it would hurt a property's value. Douglas Kleine, executive director of the National Association of Housing Cooperatives, believes that if a legal challenge does arise, it will involve such "unlikely bedfellows" as the American Civil Liberties Union and the tobacco industry.

"There's no right to smoke in the constitution," Kleine says. "They would have to challenge it on the basis of the right to privacy. I'm very skeptical that it would be overturned by this supreme court."

On questions of privacy, Kleine notes, this is a court that has upheld a Georgia ban on same-sex relations between consenting adults, but has also forbidden police from using heat detectors to determine if a man was growing marijuana inside his home.

Ultimately, though, Kleine speculates that the case will not go to the supreme court, even as a privacy issue. "The board followed a very strong procedure," Kleine says. "They got member input, strong legal counsel, they even asked brokers if the ban would harm value."

Soon the directors will also know what the majority of shareholders think — in great detail. Regardless of what the board decides to do with all this information, it's safe to bet the decision will inspire another media feeding frenzy. Saft, for one, is not looking forward to it. "For a couple of hours, it was interesting," he says. "But it got carried away and eventually it took over everyone's lives."