How to Ban Smoking - Stroock & Stroock & Lavan

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Dale J. Degenshein, Special Counsel, Stroock & Stroock & Lavan. What can boards do when there are complaints about smoke emanating from other apartments?

BACKSTORY In a 2006 report, the Surgeon General of the United States concluded that secondhand smoke is a serious health risk, almost as bad as smoking itself, citing massive and conclusive scientific evidence of the public health hazards associated with involuntary smoking.

Beginning in 2002, the New York City Council passed sweeping legislation concerning secondhand smoke. Specifically, it enacted the Smoke-Free Air Act, which as of 2011, prohibits smoking in, among other places, all enclosed areas within public spaces including public transportation facilities, public means of transportation, public restrooms, retail stores, restaurants, business establishments, libraries, museums, galleries, movie theaters, concert halls, auditoriums, convention halls, sports arenas, recreational arenas, gymnasiums, parks, and other property within the jurisdiction of the Department of Parks and Recreation. New York State first enacted its Regulation of Smoking in Public and Work Places legislation in 2003. Additional legislation is pending, including a statute that would phase in a smoking ban so that by January 1, 2016, all public housing would be classified as smoke-free.

Exempt from the statutes, however, is a prohibition on smoking in private homes.

Given the nature of apartment living in New York City, we represent many buildings where apartment owners have complained about smoke emanating from other apartments. Many buildings have attempted to deal with these complaints – with varying degrees of success – by retaining an architect or engineer to inspect the apartments, assessing the needs of the building and occupants, and implementing recommended protocols, which may include installation of exhaust fans and air purifiers. Many times, however, these protocols – even if followed – are insufficient to address the issue, as smoke often cannot be contained.

Accordingly, boards inquire as to whether they can ban smoking in the entire building, including individual apartments. Although we have not seen any case law directly on point, we believe that the most effective way to ban smoking in a building – should the board seek to propose a ban – is by an amendment to the governing documents (the proprietary lease in a cooperative and the bylaws in a condominium). The provisions of the specific document must be complied with and, in particular, the number of units, common interest or shares (as applicable) must vote in favor of the proposed amendment.

We recognize that an amendment to ban smoking in privately owned apartments may be a controversial step, and that is why we often ask whether the board first wants to circulate a questionnaire asking apartment owners whether they would support a ban on smoking in apartments. Moreover, there are several forms a ban could take: a blanket ban throughout the entire building; a ban that would allow current owners to be “grandfathered in” so that a full ban would be phased in over time; a ban specifically for renters but not owners; and other options.

In the event the board decides to propose the amendment to ban smoking – with or without a questionnaire – we would prepare materials in accordance with the building’s governing documents and draft an amendment in accordance with the board’s direction. The apartment owners would then be asked to vote.

COMMENT Secondhand smoke is a serious concern. Medical evidence is overwhelming that exposure to secondhand smoke is dangerous to one’s health and can be the cause of the same diseases that can affect smokers themselves. According to the New York State Department of Health Tobacco Control Program, an estimated 28,000 smokers quit smoking as a result of the city’s statutes, and roughly 157,000 fewer New Yorkers have been exposed to secondhand smoke.

At least one New York City condominium building has successfully passed an amendment that bans smoking throughout the building.

Where smoke does migrate from one apartment to another, apartment occupants have commenced actions alleging myriad claims, including that secondhand smoke constitutes a nuisance or a breach of the warranty of habitability. The courts continue to grapple with these issues.

From the Desk of DJD:

A unit-owner argued that, even though she had a dog in the apartment, she was not harboring a pet in violation of the bylaws because the pet spent at least half the year in her upstate home. Aptly assessing the situation, the judge asked the unit-owner where the dog paid its taxes.