It's Time to Draft a Smoking Policy

A new law – Local Law 147 – gives co-op and condo boards until August to adopt a written policy stating where smoking is permitted and prohibited, then provide the policy to all residents and display it prominently in the building. 

The law does not require board to ban smoking, and a checklist for compliance is pretty straightforward. Over the next few months, boards should deliberate and consult shareholders, unit-owners, and their attorneys. The second step is advising shareholders and unit-owners to include the smoking policy in any lease, sublease, or apartment purchase contract which they enter into. In addition, the bylaws and house rules should be amended to incorporate the policy.

“To be on the safe side, we will defer drafting the actual language to each building’s counsel,” says Dennis DePaola, executive vice president at Orsid Realty. “The wording of both the contracts and amendments to the house rules has to be carefully done in light of all the governing documents, as well as New York City and State law.” 

Ben Kirschenbaum, vice president and general counsel at FirstService Residential, a management company, is putting together some guidelines to help boards comply with the law after a smoking policy is adopted. “It will make clear that boards have to put it in application packages so that each time someone wants to rent or sell, the policy is communicated from the directors to the owners to the potential tenants or buyers,” he says. “We’ll also keep reminding boards every year of what their obligations are.”

As DePaola sees it, the new law comes with a valuable perk. It provides an opportunity for boards to enforce existing rules more effectively, prohibiting people from allowing secondhand smoke to emanate from their units through floors, ceilings, and doors. “It’s a common problem, but attacking it is very tough for boards and managers,” he says. “First, it’s often hard to find the source of the smoke, and even if you do, it isn’t easy to put a stop to it. We have a few tricks – caulking up outlets, weather-stripping doors, and making sure the ventilation is working properly – but you can’t really eliminate the problem if the smoker doesn’t cooperate. In that case, the only other recourse is suing them for eviction.” 

A smart move, DePaola suggests, is for boards to establish penalties and build them into the amended house rules and proprietary lease. “That way, if someone is causing problems, we’ll have an enforcement mechanism in place,” he says. “If we do have to send a legal letter or sue, it wouldn’t be for eviction, but to abate the nuisance.” 

Directors can take other proactive measures as well. “They could consider adding to the package that has to be submitted to them by prospective buyers or occupants an inquiry as to whether they are smokers,” says attorney Eva Talel, a partner at Stroock & Stroock & Lavan. “That’s not legally objectionable, and screening people in advance is another way buildings can contain the level of secondhand smoke.”