No Smoking

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Margaret Enloe doesn’t remember whose idea it was, but it sure made a lot of sense. “Air purifiers,” she says now. “You have a problem with the air and that certainly helps.” Enloe, who has served on her seven-member co-op board for at least half a dozen years, also doesn’t remember when the complaints about secondhand smoke started – “Before I was on the board,” she observes – but she knows when they stopped: after the board successfully banned smoking inside apartments at the 76-unit, prewar cooperative at 15 West 84th Street. How they did it is an object lesson in implementing a potentially controversial measure.

To begin with, the board at 15 West 84th started with an advantage: it had always had a good relationship with its shareholders and had been transparent in its decision-making, even going so far as to distribute copies of the minutes for everyone to see.

When the secondhand smoke complaints increased, Enloe says, the board examined options. Someone – possibly an agent from the building’s management firm – suggested that they try installing air purifiers. Fred Rudd, the president of Rudd Realty, recalls utilizing purifiers at the 200-unit 215 East 80th Street in Manhattan, a building his firm manages.

“People were complaining about secondhand smoke [at 215],” he notes, “so we asked the tenant [who was smoking] to install two air purifiers with charcoal filters in his [two-bedroom] apartment. The building bought them and will pay to change the filters as necessary. The building is also paying for the electricity.”

He reports that each device costs about $400, while the electric usage, if running constantly, comes to $75 per device annually. Rudd adds that the expense in such cases is minimal – and the results could be major. “You’re not talking about a great deal of money – and you’re dealing with someone else’s health,” he says, adding another plus: “Many, many people prefer to be in a building without smoke. Taking these actions help sales.”

Back at 15 West 84th Street, Enloe felt the air purifiers – which in her building were paid for by the smoking shareholders – were not enough. The devices kept the air cleaner, but the smell and the smoke often lingered. The board members discussed the possibility of banning cigarette smoking altogether, which led them to attorney Richard Klein, a sole practitioner who gave them the practical steps for doing it. They were told that, while they could pass the ban by a resolution in the house rules, in order to protect the ban from legal challenge, they needed to make a change in the proprietary lease. That meant they had to achieve a super-majority vote from the shareholders.

The board members approached the upcoming vote methodically. The co-op’s attorney drafted the amendment, suggesting that they grandfather in the four existing smokers, exempting them from the ban for three years. At the end of that time period, the smokers would have to give up cigarettes – or their apartments.

Enloe says the limited grandfathering clause was inserted partly to make the smoking ban “more palatable” to (and thus gain votes from) a number of shareholders who had expressed concerns about banning an activity that was occurring in the privacy of someone’s apartment (smoking has long been banned in the building’s public areas – which include the area directly in front of the property).

Klein adds that the board thought that putting a ban in place – and still allowing a handful of people to smoke for an unlimited time – defeated the point of a smoke-free building. Three years, he notes, is a reasonable amount of time to give someone to quit the habit.

The board distributed the amendment to the owners and then held a pair of informational meetings with the shareholders, explaining what was happening and addressing any questions and/or concerns. The ban meant that new buyers or even guests of current owners could not smoke anywhere on the premises. Buyers had to sign a statement acknowledging that they knew it was a smoke-free property.

“They listened,” recalls Faith Brenner, a manager from Rudd Realty who has handled the building for the last two years. “There were non-smokers who stood up for the rights of smokers... It is a family building and people would say, ‘There’s smoke going into my child’s bedroom.’ It was a concern.”

Then, at a third meeting, the shareholders voted in favor of the ban. “The vote was quite a bit beyond what we needed to pass [the measure],” Enloe recalls, about 17,000 shares for and 3,000 against.

That was in February 2010. In the ensuing three years, two of the smokers have quit and a third has turned to mechanical, smokeless cigarettes. A fourth, however, is hanging in there. The board will not comment, but the question remains: what happens if that last smoker would rather fight than switch?

There may be grounds for a battle, too, argues attorney Stuart Saft, a partner at Dewey & LeBoeuf, who was not involved with this building but has successfully implemented bans in other co-ops. His particular area of concern is the limited grandfathering measure.

“I’m not sure, legally, if you can retroactively tell someone that they cannot smoke in their apartment. You can tell them that smoke can’t leave their apartment, but – as much of an anti-smoking advocate as I am – if somebody already owns the shares and has a lease and is living in the apartment, I don’t think you can take away their right to smoke if they’re not affecting anybody else. [Even] if they amended their proprietary lease, there’s a fair likelihood that it wouldn’t survive a challenge [from the grandfathered people]. I don’t know anything in the corporate documents that gives the board that kind of authority. They could bring an objectionable conduct action [to evict him], but the smoke would have to emanate out of the apartment.”

Klein, the attorney who drafted the change, disagrees. “I’d be worried about [losing] a court challenge if we had simply done it by board resolution,” he says. “But we did it all by the book. We got a super-majority of the shareholders to agree, and we amended the proprietary lease. Under the Business Judgment Rule, I believe the board acted within its rights, and I think the courts would concur.”

Enloe, for her part, feels the board did what it had to do. “You need to do it thoughtfully, without rushing it. To be effective, you need to do it as a change to the proprietary lease. You need to let people air their views, both the pros and the cons. It’s not something you can jam down people’s throats because it touches everyone in a very visceral way, close to their homes, so they have very strong views about it. Nobody came to the [final] meeting unaware. Part of our thinking was you have people smoking, which is not a protected activity, and it is incumbent on you as a board – if you have people affected by that – to take care of the complaints. We felt we had a responsibility to do something about it.”