Balancing the Rights of Smokers and Nonsmokers in Multifamily Buildings

Even with a well-crafted policy in place, balancing the rights of smokers and nonsmokers can be … 

A DELICATE BALANCING ACT  

Local Law 14 requires all multifamily buildings with three or more units to adopt a written policy stating where smoking is permitted, but crafting one can be more nuanced than boards might expect. The policy does not necessarily have to be a no-smoking policy, but it should clearly state the building’s position and standards on smoking tobacco, marijuana and pipes, whether there’s a designated smoking area, whether you can smoke on your terrace, whether you can smoke outside the building or have to be a certain distance away. In other words, it has to be very specific.

GETTING THE VOTES. Whatever the policy, you’ll need a supermajority of shareholders or unit-owners to approve it. That might be 66% or 75%, depending on your governing documents. In order to achieve that, it’s often a question of degree for the board. For example, even if all board members are completely against smoking, you might not want to propose a total ban if it seems there might not be enough support. In that case, a good strategy would be to water the policy down by saying, “Fine, you can smoke, but only in the small area we’ve designated in the building courtyard.” 

EXCEPTIONS TO THE RULE. Even if you succeed in passing a total ban, there’s the issue of whether some people, particularly rent-stabilized tenants, are grandfathered in. If your sponsor or developer has carved out super rights, you cannot ban them from smoking. Medical marijuana poses an interesting challenge, because under the law you must give shareholders what’s called a reasonable accommodation if someone says, “Look, I’m sick. I’ve got a prescription for medical marijuana.” But you are within your rights to ask for independent verification that there is indeed a prescription in order to prevent people from trying to skirt a smoking ban.

ENFORCEMENT OPTIONS. Whether you have no ban, a partial ban or a complete one and people are smoking to the extent that it’s causing a nuisance or posing a health risk to others — for example, throwing cigarette butts off their terrace or smoking so excessively that odors and secondhand smoke are going through a vent into an apartment of someone with asthma — you can go after offenders under the terms of your proprietary lease or condo bylaws by imposing fines if your documents allow it. You can go to court to get an injunctive relief, and if the smoker doesn’t stop, they could be held in contempt. Still, you want to avoid court, because it’s time-consuming and expensive. The best way to resolve smoking issues is just as you would with other quality of life issues — although this can go beyond that as a health issue: to try to talk it out. 

COMMUNICATION IS KEy. Whatever policy you adopt, make sure people are aware of the rules. You can do that by sending out very detailed newsletters, explaining your reasons for the policy and that while you don’t want to regulate people’s lives, there can be health dangers, fire hazards and insurance issues. It’s a delicate issue balancing the rights of smokers and nonsmokers, but clear policies and reasonable accommodations can help maintain harmony.