Smoking: The Big Ban Theory

When Phyllis Goldstein, a board member at the North Shore Towers and Country Club, was asked to organize a campaign to ensure the passage of a controversial proprietary lease amendment, she knew she was up for the task. For the second time in recent years, the board at this sprawling, 1,844-unit co-op complex in northeastern Queens was gearing up to enact a ban that would block residents from smoking in their own homes.

“It’s not easy to persuade people who say, ‘Don’t tell me what to do,’” Goldstein says. “But I’m very organized and transparent. I helped explain why our buildings should be smoke-free and was able to convince people that we were right.”

Boards have used myriad methods to pass smoking bans, but mobilizing shareholders to vote was a key step for the North Shore Towers. The first attempt to pass a smoking ban failed, Goldstein says, because the measure was part of the annual election. When an insufficient number of shareholders voted at the annual meeting, the measure died.

“People wanted the ban,” Goldstein insists, “but it made us realize that we needed a stand-alone election to pass such a challenging measure.”

After receiving several complaints about second-hand smoke seeping into people’s apartments, the board informed shareholders in early April 2016 that it was planning to adopt a house rule prohibiting new residents from smoking inside their apartments. The rule was quickly passed and became effective July 1.

Since smoke continued to emanate from apartments purchased before the new house rule, the board decided to go the extra step and amend the proprietary lease, which requires the approval of a two-thirds super-majority of shareholders. Recalling its first failure to pass a smoking ban – and taking into account that an unreturned ballot counted as a “No” vote – the board turned its attention to getting out the vote.

The Campaign

Goldstein, who had a long career as a special-education teacher in the city’s public schools, recruited 50 volunteers. “When you’re a special-ed teacher,” she says, “you need to be very specific with your instructions all the time and be focused on not just what’s happening today, but tomorrow and beyond.”

Goldstein got busy. She penned an article for the co-op newsletter and organized a shareholders’ meeting on the issue. At the meeting, Northwell Health and NYC Smoke-Free, two nonprofit anti-smoking groups, made presentations in favor of the ban, and a resident and engineer explained the difficulty of blocking secondhand smoke from traveling between apartments. “People need to hear from the experts, not just from their neighbors,” says Goldstein.

“It was an exceptional meeting, standing-room-only,” says Phil Konigsberg, of the Queens Tobacco Control Coalition. “Every question was answered.” Goldstein had the foresight to film the meeting and have it shown on the co-op’s in-house TV channel for people who couldn’t attend. She was taking no chances.

The Voting

With the voting set to take place during August and September, Goldstein laid out a plan. Each tower was split into two sections, with a building captain and floor captains coordinating volunteers assigned to specified floors. As the nonprofit American Arbitration Association collected proxies, volunteers took note of which shareholders had voted. If a proxy had not been voted, a volunteer was sent to knock on the shareholder’s door with a blank proxy in hand.

In addition, floor captains made sure that reminder memos were slipped under doors and phone calls were made. Volunteers tracked down residents on vacation and, in many cases, the adult children of residents who’d been given shareholder responsibility for their parents. Proxies were mailed out with a self-addressed, stamped envelope.

Many shareholders voted within the first two weeks, then the vote count dropped. “In the beginning, I thought it was a done deal,” Goldstein says. As days passed, though, she began to have doubts. “But I’m a pretty optimistic person by nature, so that was the attitude I presented.”

Her optimism was warranted. Seventy-two percent of the shareholders voted to accept the smoking ban – well above the required super-majority. Residents and their guests can still smoke in designated areas, including the golf course and outside the rear exit of the on-site restaurant.

“It was an arduous task,” Goldstein says, “but we had people who were gung-ho and believed in the smoking ban helping us day and night. I had people come up to me weeks after the vote, thanking me for my work.”

Building Dynamics Come Into Play

Smoke-free housing is part of a growing trend. Since 2010, NYC Smoke-Free, a program run by the nonprofit group Public Health Solutions, has helped more than 10,000 apartments in the city become smoke-free – 6,500 of them in the last two years.

“The momentum has definitely shifted,” says Joel Bhuiyan, a Queens community-engagement coordinator at NYC Smoke-Free. “You now see apartments advertised as ‘smoke-free,’ so it’s an amenity. It’s what people seek.”

The concerted effort by the North Shore Towers board is a great example for other large buildings contemplating a smoking ban, Bhuiyan says – especially if the board is fearful of a backlash from smokers, or confused as to how to organize. In fact, it might be harder for smaller buildings to gain consensus if they don’t have a core group of committed people pushing the issue.
“The dynamic of the building really comes into play,” he adds.

As the board president of a 20-unit co-op in Jackson Heights, Queens, Raghuram Krishnamachari knows this all too well. Although Krishnamachari thinks that most shareholders in his building would favor a smoking ban, he’s not sure a measure would pass since he counts at least four residents as smokers. Coupled with those who may not cast a vote either way, voter turnout would be tough to predict, he says.

The issue arose in Krishnamachari’s building when a resident, who was pregnant at the time, complained about the smoke coming into her apartment from her downstairs neighbor, who happened to be the president. When Krishnamachari took over as president soon after, the board sought advice from a lawyer, a contractor, and a forensic architecture and engineering firm to see if they could stop the smoke from drifting into other units.

After tests were run, two units were asked to spend about $2,000 each, while a third was asked to chip in $300 to seal up holes and crevices. After two rounds of construction, all three shareholders say they are happy with the work and agree that their air quality has vastly improved. That said, it did not stop all the smoke from seeping into their homes. “It’s difficult when you’re dealing with a building that’s 100 years old,” Krishnamachari concedes.

He started the conversation about a smoking ban with shareholders last year and invited NYC Smoke-Free to give a presentation. Besides the health benefits, what also piqued shareholder interest was the fact that some insurance companies offer discounts on property casualty insurance for smoke-free buildings, coupled with the prospect that a ban could prevent warranty-of-habitability lawsuits. The conversation continues.

The Smoke Police

One big question remains: how can a board or management company enforce a smoking ban?

Errol Brett, the attorney for North Shore Towers, says any shareholder violating the smoking ban will first get a warning letter from the board. If that doesn’t stop the smoking, the offender will be brought to court so a judge can grant an injunction. If a further step is necessary, Brett says he would try to punish the tenant for contempt of court.

“We’re not trying to evict the tenant,” but trying to stop him or her from breaking the proprietary lease, Brett says, noting that testimony by neighbors or building personnel can be used as evidence.

Kate Vanek, board president at the Zeckendorf Towers, a 647-unit condo complex near Manhattan’s Union Square, said there have been 60 notices sent to residents who violated the smoking ban that’s been in place since 2013. Many were sent to residents who were granted a three-year grace period before the ban took place, thanks to a grandfather clause. A handful of residents were fined $100 or $250, as it was their second or third offense, condo records show.

“I wouldn’t say we haven’t had any problems, but I wouldn’t categorize it as a big deal,” Vanek says. “In this day in age, many people are focused on their health, and being non-smoking is rising in importance. Having a smoke-free policy also has been a great tool when marketing our building to younger families with children.”