Smoke No More

As Stephen Budow sees it, there are two kinds of people in this world. One believes that a person’s home is his or her castle – sacred and inviolable. The other believes that the health, comfort, and safety of a person’s neighbors are far more important than the sanctity of any castle.

Budow, an attorney who has spent the past decade as president of a 65-unit Yorkville condo, used to be the former type. But that began to change about three years ago, when a resident in the building complained about the cigarette smoke emanating from his next-door neighbor’s apartment. The board asked the smoker to install a device to capture his cigarette smoke, but the neighbor was not mollified. Meanwhile, Mayor Michael Bloomberg was aggressively pushing smoking bans in public places, including parks and beaches, and a handful of buildings in the city were implementing smoking bans. When more smoke complaints arose elsewhere in the Yorkville building, Budow’s thinking on the issue of smoking bans began undergoing a quiet metamorphosis.

“I started out, personally, in the ‘your-home-is-your-castle’ camp,” Budow says. “I had a hard time with the idea of telling someone he couldn’t smoke inside his own home. But the more I talked to people, the more I realized that smokers cause something that goes beyond their four walls. Smoke travels all over a building.”

And so the nine members of the board started talking about instituting a smoking ban. The board’s lawyer, Aaron Shmulewitz, advised them they had the power to amend the bylaws and impose fines for violations, provided a super-majority of two-thirds of the unit-owners approved. The board discussed a “grandfather” clause, allowing smokers to continue smoking inside their apartments but banning it in newly sold apartments, in effect waging a war of attrition.

But at a meeting late last year, the board decided against half measures. When a building-wide smoking ban was put to unit-owners in the spring, an “overwhelming” majority approved, according to Budow. The amendment to the bylaws also gave the board the power to fine people who continue to smoke in their apartments. In such cases, the procedure is clear: first the managing agent will send a letter, followed by a letter from the lawyer, and then a series of escalating fines.

“Fortunately,” says Budow, “we haven’t had to enforce it yet. I think this is the future.”

The Condo Solution

The issue of enforcing a smoking ban is a bit stickier in condos than in co-ops. In cooperatives, which have a landlord-tenant relationship, it’s fairly straightforward, says Robert L. Gordon, a Queens attorney who has helped three co-ops institute bans. A super-majority of shareholders (usually two-thirds) can make amendments to the proprietary lease, including a ban on smoking in the building. Enforcement is the key. Smokers who continue to smoke after a ban has been implemented can be dragged into landlord-tenant court, which can lead to a termination of the lease, after which the board can evict the shareholder and auction off his shares. Goodbye, smoker.

In a condo, on the other hand, each resident holds the deed to his or her apartment. A super-majority of unit-owners can amend the bylaws, including the imposition of a smoking ban and fines for violators. Again, enforcement is the key. If a repeat offender fails to pay the fines, the board can initiate foreclosure proceedings in state supreme court. Even if the foreclosure succeeds, however, the mortgage lender – not the board – is first in line to collect money if a lien is placed on a condo apartment.

“If a board starts a foreclosure proceeding because of a violation, it’s less effective,” Gordon says. “The courts are backlogged. The foreclosure can sit there for a couple of years while the owner isn’t paying common charges – and smoking away. Another possibility is to bring an action for permanent injunction from state supreme court, barring the owner from smoking.”

Bilodeau’s World

Don Bilodeau, president of a 72-unit condo’s board in Astoria, Queens, started hearing two kinds of complaints about cigarette smoke shortly after he moved into the building in 2007. The first was about people smoking in common areas, which is forbidden in the bylaws. The second was about people smoking so heavily inside their apartments that the smoke was leaking into common areas. The board sent out a letter reminding all unit-owners that smoking was forbidden in common areas, but the complaints didn’t stop.

When Bilodeau and his fellow board members saw a news article about a building in Manhattan that had successfully banned smoking, they began airing the idea with their neighbors. In February, the board distributed a six-point questionnaire, hoping to learn how unit-owners felt about this hot-button issue.

“What we found was that even smokers were receptive to a ban on smoking inside the building,” Bilodeau says. “Support was overwhelming.”

So with the help of its attorney, Abbey Goldstein, the board proposed a change in the bylaws at the annual meeting in April. Goldstein advised the board to be very specific in defining what constitutes “smoking.” In the end, the board defined it as “any lit or smoldering substance.”

When the votes were tallied, the two-thirds super-majority was met by a whisker – with 67.68 percent of unit-owners voting in favor of a ban. Now comes the sticky business of enforcement.

“If someone breaks the rule, they’ll receive a warning,” Bilodeau says. “If they continue to break the rule, there will be a monetary fine, which will be attached to the monthly common charges. If they ignore the fine, they’ll be in arrears and the board would consider filing a lien. But the board will be judicious about filing a lien over a small fine. The bank is in line in front of us and it doesn’t look good for the building, either to potential buyers or lenders.”

The smoking ban went into effect in July.

The Endless Debate

Don’t let these stories give you the impression that the process of instituting a smoking ban in a condo building is always a snap. It can take a lot of time and a lot of work. Just ask Evan Gillman, treasurer of a 68-unit condo in East Harlem that opened in the summer of 2008.

In June 2011, Habitat reported that the condo board had begun discussing a smoking ban. The big question was how should the board go about imposing a ban – with an iron fist or kid gloves? Now, more than a year later, they’re still discussing it.

“As more units sold and the building got more occupied, the issue gained more traction,” says Gillman, principal in a telecommunications sales agency. “We had a few new owners come into the building last fall, and they started pushing the issue forward. Unfortunately, smokers got careless. They’re not mindful of their neighbors. They smoke on balconies and throw butts off the rooftop terrace. There was a fire in the garden next to our building, and there’s reason to believe it was caused by smokers in our building.”

The pro-ban forces also got a push from the eight-story building’s commercial tenant, the East Harlem Asthma Center, which has been working to carve out a “smoke-free zone” on East 110th Street between Third and Lexington Avenues. But there were also anti-ban forces in the building, a somewhat libertarian group that asked what would be banned after smoking. Smelly cooking? Drinking?

The discussion continues. One possibility is to flatly outlaw all smoking anywhere in the building. Another is to allow the handful of smokers to continue to smoke but ban it in newly sold or rental apartments. A third course would be to designate a smoking area on the rooftop terrace.

“That third option,” says Gillman, “might be the concession we need to make to get it to pass.”

With a vote scheduled for this fall, Gillman offers a prediction about the rest of the city: “Things are moving toward a full smoking ban in all residential buildings in the next five years.”