Where There's Smoke

Robert Tierman is a partner at Litwin & Tierman. Send your questions on legal issues to: tsoter@habitatmag.com.

I’m on the board of a large Queens co-op. Recently, a new resident-shareholder approached me about a problem that she’s been having with smoke entering her apartment from the apartment below. She says it really disturbs her that she is exposed to these odors and to the well-recognized dangers of passive smoking in an apartment that she paid over $200,000 for. She says she can’t understand why the city and state have banned smoking in restaurants, bars, and other public places, and even in private offices, but not where people live. I want to bring this up with my full board but I need to know whether we can do anything about it. Please tell me what we can do.

Smoking bans are spreading like wild fire. In April 2004, Ireland prohibited smoking in pubs, which even to this lifelong non-smoker seems a bit extreme given that smoking was such a vital (if dangerous) part of the risk that one assumed in frequenting such establishments. Italy followed suit in January 2005. And, of course, in our fair city, Republican (i.e., ostensibly pro-business) Mayor Michael Bloomberg led the way for the city council to ban smoking in restaurants, bars, and other indoor public places in 2002, through an amendment to the Smoke-Free Air Act. The New York Times recently reported that “a vast majority of bar and restaurant patrons...were surprised to find themselves pleased with cleaner air, cheaper dry-cleaning bills and new social order created by the ban.” New York State followed suit with a 2003 amendment to the Clean Indoor Air Act that extended the smoking ban even to private offices.

So the question naturally arises whether a smoking ban in residential co-op apartments is possible, wise, and enforceable. Before inhaling that thick, pungent air, you should remember the case that was widely reported (even around the world) in 2002 in which the board of a large Manhattan co-op passed a resolution banning smoking by new occupants while “grandfathering” the existing owners. The BBC reported that “experts in property law” say this ban “is likely to stir up a vicious legal debate, even touching on if the rule is constitutional” and that some residents “are asking what will the board be trying to regulate next – what clothes can be worn?”

Like a puff of smoke, however, this resolution was soon gone, apparently because of a worldwide outcry that the board did not anticipate. In other words, at a time when all momentum seemed securely with smoking ban advocates, a Manhattan co-op took a deliberate step in that direction and then retreated. So just what is going on and what, if anything, should your board do?

The rule-making authority of co-op boards is firmly established in their governing documents. Co-op proprietary leases have built-in house rules that provide for regulation of such matters as noise, pets, and a few other items involving conduct within apartments (there are also many more rules that affect conduct in common areas). These leases also invariably provide language to the effect that the co-op board “may alter, amend, or repeal” and “adopt new” house rules. The house rules are deemed incorporated into the proprietary lease, and violations are considered violations of the leases, entitling co-ops to take legal action against, and in some cases to fine, violators.

Although not expressly stated, it is implied that there are some areas of conduct that for one reason or another are beyond the realm of boards to regulate. One clear example is conduct or activities that have no conceivable adverse impact on fellow residents. But once you cross the line into activities within apartments that do or even could have a demonstrable impact on other residents, then one is hard-pressed to say that the board cannot adopt rules regulating them, as long as they bear some logical relationship to keeping the conduct reasonable; do not conflict with any individual rights of residents under federal, state, or local constitutions, laws, or precedents; and, although debatable legally, make some provision for “grandfathering” or otherwise phasing out the activity to be restricted if it were previously permitted or tolerated.

Before we proceed further, we will make, at least initially, one critical assumption: that smoking in apartments affects others in adjacent apartments no matter how effective the ventilation systems or smoke-absorbing devices that the building or individual residents may have or acquire. To that you could add the presumption that periodically smokers cause fires in high-rise buildings, usually when someone falls asleep while smoking.

So now, let’s consider the most extreme example: a co-op board adopts an outright ban, effective in short order, against smoking by all residents and others, at any time and at any place in any part of the building, including individual apartments. On the one hand, given our assumption that smoking adversely affects others in the building, the board almost surely can regulate just as it can ban dogs, noise, and the like. On the other hand, such a rule would probably shock and enrage smoking shareholders and possibly others, and promptly lead to demands for withdrawal, or at least modification, of the rule, and/or to threats of lawsuits.

So just what can pro-smoking shareholders assert and what, if anything, can or should a board do to anticipate or respond to these arguments? Let’s review a set of arguments:

Pro-smoking shareholders could claim that addiction to nicotine is a “disability” and that, as a consequence, under the federal Americans with Disabilities Act (ADA), and any parallel state or local law, the board must make “reasonable accommodations” to help them cope. But a Maryland federal district court ruled in 2001 that “Congress could not possibly have intended the absurd result of including smoking within the definition of disability which would render somewhere between 25 percent and 30 percent of the American public disabled under federal law because they smoke.”

The court unsympathetically continued: “In any event, both smoking and nicotine addiction are readily remediable, either by quitting smoking outright through an act of willpower (albeit easier for some than others), or by the use of such items as nicotine patches or nicotine chewing gum.”

This court decision seems to resonate beyond the narrow issue of ADA applicability and to extend, in principle at least, to support the fairness of co-op boards prohibiting smoking in apartments, although, admittedly, the Maryland case involved prison (not co-op) residents. Moreover, if anything, the stronger ADA-based argument may be from non-smokers demanding that they have physical conditions amounting to “disabilities” that require smoke-free environments. Smoking ban advocates would, of course, argue that one such “disability” is the very fundamental need to breathe fresh air.

Pro-smoking shareholders also could argue that a co-op smoking ban constitutes a violation of the common law prohibition against unreasonable restraints on the use of their property because it practically prevents them from selling or subleasing their co-op apartments to smokers who naturally want to be able to smoke in their homes. However, when co-op shareholders acquire their apartments, they essentially agree that their boards have the right to adopt new house rules.

Therefore, provided that the smoking ban is firmly within the realm of conduct properly governed by the house rules and is not motivated by self-dealing, bad faith, or improper discrimination, then the rule will not be deemed an improper restraint of the use of the property (widely interpreted to apply to co-op apartments, technically not considered “real property”) even though the ban plainly reduces the universe of potential purchasers. Moreover, a smoking ban would probably not be deemed unreasonable, especially given the ever-mounting scientific and societal wave against smoking.

Pro-smoking shareholders also could argue that so-called “equitable” principles bar a co-op from enforcing a non-smoking ban against existing shareholders and perhaps others. They would claim that they relied on their ability to smoke in their apartments when they purchased them and the board cannot legally dash these expectations. They also can say that they relied on the ability to sell their apartments to smokers and non-smokers alike.

But a recent New York State appellate division case strongly reinforces the principle that a co-op board can adopt a rule that substantially changes a longstanding practice and does not exempt existing shareholders who long acted to the contrary without board opposition. So, unless there is a contractual or statutory provision prohibiting withdrawal of their rights – the way, for example, that the New York City pet law prohibits banning pets openly kept by a resident for at least three months – the smoking ban wins out even if no “grandfathering” is permitted. Practically, of course, “grandfathering” can greatly reduce shareholder opposition, which, if great enough, could lead to shareholder-induced removal of board members or adoption of an amendment to the proprietary lease permitting smoking.

Pro-smoking shareholders also could argue that the ban is burdening a select group of shareholders so that the board can avoid undertaking better building maintenance and improvements. Specifically, if the building-wide ventilation system does not effectively prevent smoke from being transmitted to other apartments, then it should be repaired or replaced, or another technical solution should be implemented, rather than denying smokers their rights.

Similarly, pro-smoking shareholders could challenge my assumption – that there’s no mechanical solution to prevent smoke dispersal – by arguing that, in fact, only inconsequential amounts of smoke pass out of apartments and that there is limited disturbance, much less health risk or other injury or damage to others. This, of course, tests the limits of the “second-hand” smoke debate, whose almost universal acceptance now is the principal fuel for the pro-ban folks. It’s one thing for a smoker to place his own health at risk; it’s quite another to do it to others with what is sometimes known as “ETS,” or environmental tobacco smoke.

Ban opponents could argue that any danger from residents falling asleep with lit cigarettes happens infrequently. But all of these arguments get us into the realm of the business judgment rule, under which the courts will readily defer to the decisions of boards unless there is proof of board bad faith, self-dealing, or improper discrimination. So even if debatable, the board’s decision – that the ban is in the best interests of the co-op – would probably be upheld.

Pro-smoking shareholders also could argue that a ban impinges on their right of privacy, which was discovered (some would say invented) at the federal constitutional level in 1965 to protect contraceptive sales and in 1973 to protect abortion rights. A 2004 federal court case upheld the most recently adopted, more restrictive city and state smoking bans.

In doing so, however, the court noted that the smoking bans at issue “do not attempt to intrude in such places that would be considered to be within a person’s sphere of privacy, such as in a private residence, automobile, hotel room, or private social event, and thus, do not ruffle the implied right of privacy in the ‘penumbras’ of the Bill of Rights.”

What does that mean for co-op bans? It’s not entirely clear yet, but co-ops may be able to dodge the right of privacy issue. That’s because the federal constitution protects individuals from “state action” (i.e., government action) and co-ops are not strictly governments – although you can be sure that smoking ban proponents will argue to the contrary. And even if the right of privacy applies, the rational goals of the smoking ban would probably outweigh the invasion of privacy, particularly when it is considered that a solid line of New York cases indicates that co-op shareholders surrender individual rights in choosing to live in communal settings. All in all, though not free from doubt, the smoking ban would probably survive this challenge.

On a related front, the pro-smoking shareholders may point to the exemption from the New York State ban, as recently amended, for “private homes” and “private residences.” They would argue that by excluding these areas, the state was conceding that smoking cannot be restricted in co-op apartments, which, after all, are multi-family residences. This would be faulty reasoning. There is nothing inherently wrong with a co-op board adopting rules restricting conduct beyond the restrictions of such conduct under state law.

Pro-smoking shareholders also could argue that something as controversial and significant as a smoking ban should require shareholder approval, perhaps even by a “super-majority” (two-thirds or 75 percent) as required in a co-op to amend the form of proprietary lease. But assuming that regulation of smoking is consistent with other house rule-type restrictions, then the board’s authority to adopt a smoking ban is fairly secure.

On the other hand, there are ways for ban opponents to invoke a vote of shareholders. They could demand a recall election of pro-ban directors, which usually requires a petition of shareholders owning 25 percent of the shares, and then a vote for removal, which usually requires only a simple majority of the total voting (assuming a quorum) and usually does not require a showing of cause for removal.

They also could demand a special shareholders’ meeting to amend the proprietary lease to ban the ban. Such an amendment usually requires a petition of shareholders owning 25 percent of the shares to call the meeting and two-thirds or 75 percent for adoption of the amendment. They also could just wait until the next annual meeting to air the issue, wipe out the pro-ban directors, and have the replacement directors repeal the ban.

Once the issue is before shareholders, the debate will extend (as it should in a democracy) beyond simple legalities to the fairness and practicality of the ban. Here, smoking advocates will break open a new pack of many other arguments.

They could argue that such a ban expands governmental paternalism to new levels (perhaps in New York, at least, to balance the ostensibly opposite Bush “ownership society” philosophy). They could claim that we’re headed back to Prohibition, and perhaps even worse.

They could argue that the smoking ban is too intrusive to enforce. If smoking is detected and reported, then the source will have to be substantiated through reasonably prompt requests to enter the suspected offender’s apartment. But what if they simply do not answer a knock? Can the board direct entry of the apartment either with its emergency entry powers and, if not, how else will it be able to substantiate the offense?

They could argue that exceptions should be allowed for individuals with balconies or roof terrace areas. But smokers without these luxuries will counter that this is unfair. And they will say that they should be able to smoke near (or perhaps hanging out of) their windows.

They could argue that rule violation will inevitably and consistently occur, with the ban thus unfairly punishing only those smokers who voluntarily refrain. Smokers can readily get a quick fix from a timely butt at all hours, and hope that the smoke will not be detected. The violation in itself does not require the risky emotional commitment and physical requirement of, say, sneaking a banned dog into a building or even the protracted offense of making noise at a prohibited level. So, just as it was with Prohibition and alcohol, the smoking residents will be constantly flouting the ban and boards will soon tire of the time and expense of futilely trying to enforce it. It’s not quite so easy when banned actions (like drug use) go on behind the closed and constitutionally protected doors of a residence.

A Google search yielded an interesting note on which to end this discussion. Soon after the New York City co-op passed its short-lived smoking ban, a Harris Interactive Quick Query gauged the reaction across the country of 2,000 adults (29 percent smokers, 71 percent non-smokers). Predictably, the vast majority of smokers (85 percent of those with an opinion) opposed the ban. And a somewhat smaller majority of non-smokers (75 percent of those with an opinion) supported the ban. This percentage of non-smokers less inclined to “vote their interests” was weighed against the greater presence of non-smokers in the poll and undoubtedly in New York, as well as the country. This yielded an overall result of 53 percent of the total (or 58 percent of those with an opinion) favoring the co-op smoking ban. If the poll respondents are reasonably similar to typical New York City co-op owners, then even with “grandfathering” of the right to smoke by existing shareholders, co-op boards will face a significant and undoubtedly vocal minority opposed to the ban.

But that poll is almost three years old and before Ireland banned smoking in pubs and before New York City smokers admitted that the ban in bars is not all that bad. So – with ample regard for the numerous “hazardous to your health” legal, political, and practical issues discussed above – I think that the time has come for a New York City co-op board to have the gumption to lead the way to snuffing out this universally acknowledged disgusting and dangerous practice from our multi-family homes.