Breathe Clean

Nearly 14 years have come and gone since 180 West End Avenue banned cigarette smoking from the 452-unit building – and just as quickly withdrew the policy in the face of vocal opposition from smokers in the co-op.

“Where there’s smoke, there’s ire,” the wags said at the time, claiming that no way, no how would smoking be widely banned. It was too controversial, too incendiary, right up there with lobby redesign and maintenance increases as one of the top topics to get the residents motivated to remove the board. “Smokers’ rights” was the rallying cry of residents who insisted that whatever happened in an apartment was private, personal, none of your business.

As the times changed, so did attitudes. Just two years and seemingly a dozen lifetimes ago, board president Stephen Budlow oversaw the successful imposition of a smoking ban in his 65-unit Yorkville condominium after a three-year struggle. That was tough, he admitted, but he still made a hopeful prediction: “This is the future.” Right, said the cynics, but remember the ifs, ands, and butts.

Depart, cynics, for that future seems to be here. Attorney Mark Hankin, a partner in Hankin & Mazel, reports that in the last two years, he has successfully overseen the imposition of at least two building-wide smoking bans. Attorney Abbey Goldstein, a partner at Goldstein & Greenlaw, has handled a couple more within that same period.

“It’s a domino effect. A board sees one building impose the ban and not have as many issues with it as expected, so they try,” says Sheelah Feinberg, executive director of the New York City Coalition for a Smoke-Free City, an advocacy group. “People sometimes feel like it’s going to be this great big hurdle – and it can be a hurdle initially – but most people, in the end, actually are receptive to having a smoke-free building. We have been working on smoke-free housing for five years now, and we have really seen it take off in the last three years.”

She notes that former Mayor Michael Bloomberg’s campaigns against smoking raised awareness of the issue. “People see it makes health sense,” Feinberg adds, citing recent city health department statistics that show 85 percent of New Yorkers polled don’t smoke.

It also makes economic sense, observes Hankin, who points to smoke-free Hilltop Village No. 1, a 200-unit, two-building Queens cooperative for which he is the counsel. “I believe that the sales at [this] co-op have risen dramatically as a result of being known as a nonsmoking building.” He represents and handles the closings at three related co-ops in the area, Hilltop Village Nos. 1, 2, and 3; sales at Hilltop 1 have increased at a higher rate than at 2 and 3, which both allow smoking.

That said, how is it done? Here’s the story of two properties – a co-op in Queens and a condo in Manhattan – that went smoke-free.

Hilltop Village No. 1

The transformation at Hilltop Village No. 1 started with one man. “I was interested in going smoke-free,” says Melvin Doby, the board president. He then sought out opinions from those in his building, conducting a formal survey and informal conversations with residents. “On talking with people, we found that a ban of some sort was doable.”

The co-op’s law firm, Hankin & Mazel, connected him with the New York City Coalition for a Smoke-Free City, which has branches in each of the five boroughs. Its Queens office gave him the information he needed to make a strong case to the residents. “They asked us to come in and do some presentations,” says Yvette Jackson-Buckner, borough manager of the coalition. “We had meetings with the board. We had meetings with the shareholders. We worked with the lawyers. And we helped them do a survey.

“We have a presentation that essentially explains what second-hand smoke is, how it travels, how there is no safe level, how it affects infants and children, and how it contributes to asthma attacks,” she adds.

“They bring photographs and projectors and show you the inside of a black lung,” observes Hankin. “They show you what first-hand smoke, second-hand smoke, and third-hand smoke look like, and they basically educate your shareholders, and then they make the vote.”

At Hilltop Village No. 1, the proponents made persuasive arguments. The (occasionally grisly) data was delivered to the shareholders through meetings and handouts between August 2012 and the annual meeting a few months later in November. In the end, although there was some token opposition from residents – whose arguments, says Doby, were “silly,” amounting to “First they ban cigarettes, then they ban certain types of food” – the measure was overwhelmingly passed.

The Impala

Over in Manhattan, Diana Harfouche, former president at The Impala, a 181-unit condominium at 404 East 76th Street, ended her time as board leader by overseeing the successful transformation of the property into a smoke-free zone in 2013. “Initially, we had a lot of complaints from owners whose units were adjacent to units in which the occupants found the second-hand smoke and the smell very bothersome,” says Harfouche, who stepped down in early 2014. “We also had some unit-owners with health issues, such as asthma, and I think one of them had cancer. They were experiencing second-hand smoke from a neighbor.”

Before even considering an outright ban, the board had the staff make several attempts to contain the smoke, which included caulking openings in apartments to staunch the fumes and installing air filters in some units. “It’s difficult to determine where the fumes are coming from; it travels under walls, through blowing outlets, through window frames between apartments, between the ventilation systems,” says Joseph Grimes, a manager from Premiere Property who manages the Impala.

“Our efforts did not stop the seepage of the second-hand smoke,” Harfouche admits. “It’s extremely difficult, and we did research that said there was just no technical way to prevent the spread of the second-hand smoke.”

The board knew that it needed a super-majority to amend its bylaws and stop the smoke. “We were very methodical about it,” she recalls. “I created the spreadsheet of all the unit-owners whom we knew to be smokers and those we knew to be nonsmokers; of unit-owners who were pregnant or had young children.”

Using that spreadsheet, the board carefully targeted the potential voters to be certain it could gain a majority. “We knew who would be in favor of having a smoke-free building, and we discussed among ourselves who would a smoking ban harm or help, what it would do to our property values, and so forth. Then we decided that we needed to go ahead and campaign and try to get this amendment passed.”

The board called and e-mailed everyone. One difficulty was that the condo has a number of foreign investors/unit-owners living in China, France, and other countries. “So that was the hurdle, reaching those people. But we were very persistent,” she says, noting that the board was assisted by a subcommittee of owners. “We found many methods of identifying and locating and reaching the unit-owners who lived abroad and the investment owners, and we were successful in getting their support.”

In the end, the board sent out information – much of it provided by the New York City Coalition for a Smoke-Free City – to the unit-owners, educating them about the harmful effects of smoke and “what we saw as a future benefit in terms of property value,” Harfouche says. “We talked about all the efforts that we had made in the past that were unsuccessful and explained that this was the last resort.

“I don’t like telling anyone what they can and can’t do in their home and within their units, so it was a struggle,” she adds. “But in the final analysis, yes, the unit-owners have the right to do what they want to do in their apartment, but unit-owners also have the right to breathe clean air.” Finally, she concludes, it all comes down to common sense: “A smoker can always exit the building and smoke on the sidewalk – but a person who wants to breathe clean air cannot leave their home and live on the sidewalk.”

Yet for some, common sense is apparently not that common. Talk to Phil Konigsberg. For the past five years, the longtime board member of Bay Country Owners co-op in Bay Terrace, Queens, has been waging a frustrating battle to eliminate smoking from the property. “I have encountered total resistance by the directors on our board and the entire board of directors of our sister co-op, Bell Owners,” he says. “The board has been unwilling to move in any way toward a ban.”

Konigsberg, who suffers from respiratory problems, is frustrated by recent events but confident that the tide of history is on his side. “The board doesn’t feel they have the right to tell people living in their apartments what they can do,” he notes. “My response to that has always been that we do have the right to tell people what they can do in the co-op. That’s expressed by several house rules. They can’t make excessive noise, for instance.” He pauses and adds: “I have not relented in this endeavor, and I am convinced that it is not a question of if we will adopt a smoke-free policy, but when.”

==HABITAT SIDEBAR==

Is a Smoking Ban Legal?

Arthur Weinstein, an attorney in private practice who has successfully enacted smoking bans in New York, says that many co-ops already have restrictions in their proprietary leases against noxious odors and/or disturbing neighbors. That – combined with recent court cases that say second-hand smoke is a violation of the warranty of habitability – gives boards the right to prohibit smoking in a building. But only, insists Weinstein, if there is a complaint. This last point is key. According to the lawyer, if there is no complaint, under the house rules, there is no cause for action.

Some lawyers disagree. Attorney Stuart Saft, a partner at Holland & Knight, argues that a board has the right to ban smoking without a complaint. He has helped a number of co-ops to do so.

Attorney Abbey Goldstein, a partner at Goldstein & Greenlaw, believes that amending the house rules should be enough to impose a ban. “House rules typically are permitted for the regulation of day-to-day affairs, everything from whether or not you have to have carpeting in your apartment to whether you can put your umbrella in the hallway. If you can do that, then certainly you can limit the exposure for other people to toxic substances.”

Saft argues that the best way to implement a successful smoking ban is to amend the co-op’s proprietary lease or condo’s bylaws. Since it is a major change in building policy, he argues that, to be on the safe side, a super-majority (usually 66 2/3 of the populace) must vote in favor of the change. The amendment would thus carry more weight and be less open to legal challenge, and would also be harder to reverse by a subsequent board. – T.S.