No Smoking

You might think that this city’s waves of smoking bans are a local phenomenon and a recent invention, the handiwork of an over-zealous billionaire mayor who wants to protect New Yorkers from themselves. But you would be wrong.

People have been trying to protect other people from the perils of smoking for nearly half a millennium in places far from New York City. Way back in 1575, for example, the Roman Catholic church passed a law forbidding smoking inside any place of worship in the Spanish colonies.

So, while smoking bans are not exactly something new under the sun – and while they now include New York’s bars, restaurants, taxicabs, offices, theaters, elevators, parks, beaches, bingo parlors, and, yes, Times Square – there is still one last sanctuary that remains sacred: the interiors of people’s homes.

But that appears to be changing. At least a dozen co-op and condo boards around the city are considering or are working up new rules that would forbid residents from smoking inside their apartments. A few boards have quietly imposed bans – so quietly, in fact, that they declined requests to be interviewed for this story.

While the pro- and anti-smoking camps remain as divided as ever, just about everyone agrees on one thing: bans on smoking inside apartments are destined to become New York City’s next big thing.

Smoke ’Em Out

Attorney Steven Sladkus, a partner with Wolf Haldenstein Adler Freeman & Herz, believes that if boards impose smoking bans properly, it will be difficult for dissenters to mount legal challenges. “I think co-op and condo boards, shareholders, and unit-owners [are] asking, ‘Why not make the building even cleaner if you can?’” Sladkus says. “I think it’s part of the general push for healthier living. It’s like making the building greener. And if a super-majority of a co-op’s shareholders vote to amend the proprietary lease, or a super-majority of condo unit-owners vote to amend the bylaws, that would make it difficult to challenge legally.”

At one building Sladkus represents, a recently opened 64-unit condominium in East Harlem, a possible smoking ban is on the table. “We’ve just started having this discussion among our board members,” says Evan Gillman, principal of a telecommunications sales agency who is president of the five-member board. “I think the time is right to implement this because of the nascent state of the building. [Eight units are still on the market.] And we have a number of unit-owners with small children who are very persistent about making this a smoke-free building.”

At this point, Gillman says, the discussions are centering around the question of how to impose a ban. Should the board use an iron fist or don kid gloves?

“Rather than a mandatory rule, one board member suggested reaching out to the residents of one floor and having a gentleman’s agreement that it will be a non-smoking floor,” he says. “It would be more a voluntary approach among unit-owners rather than the board laying down the law. The hope is that another floor would eventually follow suit. It would be a softer sell. Others want a hard-and-fast rule laid out by the board. We’re trying to navigate the legal issues, which get a little gray in a condo building.”

Adds Sladkus: “The board can’t ban smoking in apartments in a condo. But if enough unit-owners vote to amend the bylaws and ban smoking inside the building – in this case a two-thirds super-majority – then that could be legally upheld.”

Gillman says the building has an added incentive to pursue a smoking ban. The commercial tenant on the ground floor is the East Harlem Asthma Center, which is pushing to make the entire block on East 110th Street, between Third and Lexington Avenues, a smoke-free zone. East Harlem has the city’s highest number of emergency room visits and hospital admissions due to asthma, according to Dr. Betty Perez-Rivera, director of the Asthma Center.

“We’re talking to the merchants on this block, asking them to put up signs supporting a smoke-free area,” Perez-Rivera says. “We can’t legislate, but we’re looking to increase awareness of the hazards of smoking. If the condo board makes this a smoke-free building, that would be fantastic for us.”

But Gillman is aware that even if a ban on smoking inside apartments comes to pass, enforcing it might get ticklish. “How do you prove that smoke is coming from a specific unit?” he asks.

“Policing any rule has its difficulties,” Sladkus acknowledges. “It could be enforced through fines, you could sue for a breach of the bylaws, you could seek an injunction, and you could write in provisions that (the offender) must pay any legal fees.”

Despite such hurdles, Gillman believes it is “very possible” the issue will be put to a vote by all unit-owners at the annual meeting this fall.

Debate Issues

Sladkus and Gillman and his fellow board members are debating issues that point to the one sure thing about the hazy issue of smoking bans: they’re going to be good for the lawyer business. In one current court case, a couple at 200 Chambers Street has sued a neighbor for up to $25,000 plus fees and damages, claiming smoke has caused health problems for them and their three-year-old daughter.

In another case, a resident of an Upper East Side condo was sued for $2 million by neighbors who claimed that the man’s cigar smoke was causing ear infections and breathing problems in their three- and six-year-old children. In a settlement, the man agreed to pay a $2,000 fine every time he smokes a cigar inside his apartment. It’s a safe bet he’s smoking his cigars elsewhere.

These two legal dust-ups come on the heels of a noteworthy 2006 case in New York City Civil Court. Judge Shlomo Hagler ruled that second-hand cigarette smoke had breached the implied warranty of habitability and caused a “constructive eviction” of two rental tenants in a condo building. A key element of the warranty, the judge noted, is that tenants must not be “subjected to conditions endangering or detrimental to their life, health, or safety.”

Which begs the question: could co-op and condo boards get into legal trouble for not banning something that can breach the warrant of habitability?

“That’s sort of a catch-22,” says Andrew Wagner, a senior associate at the law firm Rosen Livingston & Cholst. “Smokers are not a ‘protected class,’ like the disabled. Second-hand smoke is analogous to noise or odors. I would compare banning smoking to banning a particular breed of dog. Those bans have not held up in court. The goal of a ban is to cause the problem to stop. It seems to me that a building-wide ban is too broad, like killing an ant with a sledgehammer.”

Adds Bruce Cholst, one of the firm’s partners: “I have a bunch of buildings – co-ops and condos – that are talking about this. It’s possibly an emerging trend. My first piece of advice to boards is to think very carefully if it would ignite a civil war in the building that would lead to a legal challenge – and also to ask what it would do to resale values. Maybe there’s a less drastic approach, such as modifying the ventilation system or improving the weatherstripping in the offender’s apartment.”

Despite such cautious advice, one condo board Cholst represents is moving forward with a ban. “They’re on virgin territory because there is no precedent to follow,” Cholst says. “There may very well be a legal challenge. I strongly advise co-op and condo boards that they get it ratified by a vote of shareholders or unit-owners rather than by house rule. That way it can be done with a mandate.”

Cholst speculates that the day is coming when developers will market new condo buildings as smoke-free. “If a new condo building billed itself as no-smoking up front,” he says, “I think it would attract a lot of people. It would certainly attract a lot of attention.”

Banning the Ban

Few people are more aware than veteran real estate lawyer Stuart Saft that a smoking ban can attract a lot of attention. Back in 2002, when the idea was nearly unheard of, Saft, currently a partner at Dewey & LeBoeuf, advised the co-op board at 180 West End Avenue that it could legally reject future buyers if they would not agree to forbid smoking inside their apartments. When the news hit The New York Times, Saft became the focus of an international media feeding frenzy. Reporters called from as far away as Germany and Japan.

“The board was concerned, with all the publicity, that the rule would affect the sales value of apartments,” says Saft. “So they suspended the rule while they surveyed shareholders’ opinion and checked with brokers to see if the rule would affect values. The brokers were split, and we got hundreds of responses from shareholders. Even people who objected to smoking felt it was worrisome for the board to have dictatorial powers. So, the board referred it to a committee, and that’s where it sits to this day.”

Saft learned something from the experience. “At that time [in 2002] I didn’t think a co-op board could simply ban smoking inside apartments,” he says. “I’ve since come to realize that a board can use the provision that says you will not allow offensive odors in the building. An argument could be made that it’s part of a co-op board’s obligation to each shareholder to maintain the building’s habitability.”

Arguments could also be made that smoking bans should be implemented gradually – or not at all. Arthur Weinstein, a co-op attorney and vice president of the Council of New York Cooperatives & Condominiums, advocates the former approach. “I have had tremendous good luck with boards making it clear they will not accept any new shareholders who are smokers,” he says. “In effect, they’re moving toward a smoke-free building through attrition. But I have not had any buildings that have tried to ban smoking inside apartments. After a cost-benefit analysis, it would be hard to justify.”

Make that impossible to justify, as far as James Samson, a partner in the law firm of Samson Fink & Dubow, is concerned. “The standard proprietary lease talks about ‘objectionable odors,’” he says. “What we’re getting is boards clamping down on people who allow smoke to permeate the building. But if it doesn’t get into common areas, it’s not likely to bother people in other apartments.”

To keep smoke out of common areas – hallways, elevators, stairwells, lobbies – Samson advises boards to insist that people smoke far from the hallway door, or install fans to blow smoke away from the door – because once the smoke is in the hallway, the elevator acts as a “suction machine” to spread it throughout the building and into other apartments. If someone with a less-than-airtight hallway door is cooking cabbage on the second floor, he notes, people on the eighth floor will usually know it.

“You need to deal with it, but you don’t need a new provision,” Samson argues. “I have a couple of problems with a smoking ban. First, it’s a quality-of-life issue. What right do you have to legislate if smoke’s not getting into common areas or neighboring apartments? And second, why do you need a smoking ban? Should boards be in the business of legislating people’s habits?”

Little Co-op that Could

Which brings us, finally, to the little co-op that could – and did – legislate people’s habits so successfully that the building is now not only smoke-free, but also acrimony-free. This may qualify as a minor New York City miracle.

The building, built during the Civil War, is a 20-unit co-op in Greenwich Village. The apartments are tiny, and eight of them are occupied by subletters, some of whom have lived there for 10 years. The three-member board was elected in 2009. After years of acrimony, the directors realized they all wanted to move toward a smoke-free building. The best way to do this, they agreed, was not to impose new rules on shareholders but to regulate the behavior of future subletters.

“I said to my two fellow board members that we ought to tell shareholders who sublet their apartments that we don’t want smokers in the building,” says Reynold Weidenaar, a retired film teacher who serves as the board’s vice president and treasurer. “There’s so much turnover that we could soon get rid of smokers and we would have a smoke-free building eventually.”

So, rather than rewriting the proprietary lease and putting it to a vote of all shareholders, the board simply wrote a set of seven sublet guidelines. On the top of the list was “No Smoking in the Apartment.” (Others include prohibitions against pets, subletting a sublet, and professional offices in the apartment.)

“To my knowledge, there are no more smokers in the building,” Weidenaar says, amazement in his voice. “There are people in this building who thrive on conflict – they object to all rules and regulations – but there has been no conflict about this. To quote the old Negro spiritual, ‘Not a mumblin’ word.’”

Weidenaar believes that what happened in his small co-op could be the city’s next big thing. Claiming that there is “a demonstrable rise in illness and disease where you have smokers in multiple-unit buildings,” he concludes that “there’s a very good possibility that before long there will be a city-wide ban on smoking in apartments.”