A Co-op Board Can Fire the Super for Smoking in His Office

Q: Smoking is banned in public spaces in my prewar Manhattan co-op building, yet the super smokes all day long in his basement office. All of the storage lockers are just outside his office, so anything we put in our storage locker will reek of cigarette smoke. The management company seems aware of the issue but hasn’t stopped it. What can shareholders do?

A: By smoking in his office, your super is doubly breaking the rules, replies the Ask Real Estate column in The New York Times. First, while a resident super’s apartment is his turf, his office is considered a common space and is therefore subject to your building’s ban on smoking in public spaces.

“Even if the super works out of there, the residents are able to visit him in the office and sometimes will need to,” says A.J. Rexhepi, managing partner at Century Management Services, which manages more than 100 buildings. “It’s not the super’s personal space.”

Second, the super’s office is also considered a workplace, and New York State’s Clean Indoor Air Act prohibits smoking in any indoor workplace, says Leni Morrison Cummins, chair of condos and co-ops at the law firm Cozen O’Connor. “There are probably other building employees who go into his office,” she says, “and they’re entitled to a smoke-free workplace.”

The board’s first step should be to tell the super that he may not smoke in his office, and that if he doesn’t stop there will be consequences. If that doesn’t work, Rexhepi says, the board should notify the building's management company. The property manager could send a cease-and-desist letter to the super, with a copy also going to the super’s union representative (if the staff is unionized) and another copy going to the Realty Advisory Board, a legal organization that represents unionized co-ops. If he refuses to snuff his butts, the co-op board is within its power to fire him. Problem solved.