IMPLEMENTING SMOKING BANS

For Deborah Constantine, president of a co-op in the Clinton neighborhood of Manhattan, there was never any doubt that smoking caused major problems for the whole building: "When there was a smoker in the building, the entire floor was breathing in the smoke."

The board of the 20-unit, five-story walk-up at 431 West 54th Street (below; click to enlarge) has for some time now actively discouraged smokers from buying or renting in the building, and it has become a de facto smoke-less environment without seeking a vote from shareholders to amend the proprietary lease.

"For health reasons, we decided to keep the building as smoke-free as possible," she says. "It was the board that decided that but when we had our annual meeting and talked about it, everybody was in favor of it, so it wasn't an issue at all."

Constantine's building makes the process look easy. It isn't always. The initial attempt was made in 2002 by 180 West End Avenue, part of the Lincoln Towers complex. Under the guidance of attorney Stuart Saft, now a partner at Dewey LeBoeuf, the board attempted to institute a partial prohibition against smoking. The attorney felt that it would be impossible to prohibit smoking entirely in one move, since such an outright ban could result in lawsuits from aggrieved residents who smoked. Instead, he came up with an approach that would only affect new owners. They would, in their closing documents, agree not to permit smoking in their units.

Although shareholder protests and excessive negative publicity from the media caused the board to back away from the plan, its limited approach — reaching for the goal of a smoke-free building but grandfathering in existing smokers — became a blueprint for future smoking bans.

That's the route Sonja Cooper took. "Even though one would like to live in a smoke-free building, I think that [a total ban] creates revolution and this is an 'evolutionary' way of doing it," says Cooper, president of the 181-unit co-op, managed by Maxwell-Kates, at 244 Madison Avenue. It has a new-buyer prohibition in place.

"When I first mentioned it to the board in 2005, there wasn't much interest in taking this on," she recalls. It took a number of meetings with the clincher being Cooper's warning that the courts could hold co-ops liable for injuries related to secondhand smoke. (She also says that health issues were important. "We have a lot of young children here.") By the end of 2006, the board, headed by then-president, Richard Shevlin, had adopted a policy to restrict subletting to non-smokers, and during the first quarter of 2007 broaden this restriction to new buyers. Since admission policies are the purview of the board, shareholder approval was not needed.

What About Guests?

"When we interview prospective purchasers, we question them about whether or not they would permit smoking by their guests," observes Cooper. "We don't say you cannot permit a guest to smoke although we indicate our disfavor. But we tell them there can be no fumes emanating from the apartment into anyone else's apartment or into the hallway. That would be a violation of our house rules and proprietary lease."

Cooper acknowledges that, while the application package states the co-op is a "no-smoking building," current smokers in the building are grandfathered in. Nevertheless, any grandfathered smoker creating problems for other apartments is asked to undertake any required remedial work. Notes Cooper: "In one case, the shareholder was required to provide appropriate ventilation."

Another property, a 118-unit condominium at 411 East 53rd Street in Manhattan, has wrestled with the issue of cooking and smoking odors in the hallways of the 40-year-old building. The current board members have ambitious plans to ultimately make the condo smoke-free. But they, too, are moving gradually to that end.

One of the property's attorneys, Richard Resnik, a partner at Seyfarth Shaw, doesn't believe that the existing rule prohibiting odors and noise is adequate to cover smoking. "I'm not sure that in court you would be able to prove satisfactorily that a smoking odor going into your next-door neighbor's apartment is sufficient to throw somebody out," he notes.

"But we're concerned as much about potential health hazards and the liability of the board to a person for health injuries. Information is out in the public domain from the surgeon general's report that constantly being bombarded with secondhand smoke may very well have a serious health impact. And we have to balance your right to live in your unit with our fiduciary obligations as managers of this condo to protect the health and safety of other people."

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