Gallet Dreyer & Berkey, LLP | Making a Building Smoke-Free?  Here are Answers to Some Commonly Asked Questions
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Making a Building Smoke-Free?  Here are Answers to Some Commonly Asked Questions

7/11/18 | By: Peter R. Massa, Esq. & Alyssa C. Goldrich, Esq. | GDB 2018 Summer Newsletter
As described in our spring 2018 newsletter, under recent legislation all New York City multi-family dwellings consisting of three or more apartments (including coops and condos) must adopt a smoking policy by August 28, 2018 and provide the policy to all current and prospective residents.  This requirement has caused many coops and condos to consider making their buildings “smoke-free” by prohibiting smoking in individual apartments as well as the common areas of the building.  Below is a FAQ regarding implementation of a smoke-free policy.

 
  1. My building is thinking of adopting a smoke-free policy. Is such a policy legal?  Yes. Currently, there are no state or federal statutes prohibiting buildings from adopting building-wide policies banning smoking anywhere on the premises, including in individual apartments.
  2. How can my condo or coop adopt a smoke-free policy?  This depends on the type of building you live in. Generally, while a court may enforce a smoke-free policy that has been adopted as a house rule, to ensure the support of building residents, it is recommended that a coop or condo board seek to amend its governing documents to adopt a smoke-free policy. Each building has different requirements for passing amendments so be sure to review your building’s governing documents to determine the appropriate action to pass a smoke-free amendment.
  3. What if I live in a rental building?  Subject to the rent stabilized issues outlined below, the owner of a rental building is free to create its own policies regarding smoking.
  4. As a tenant in a rent stabilized apartment, am I obligated to adhere to the smoke-free policy?  A smoke-free policy is generally not enforceable against a resident who has obtained rent stabilized status before the smoke-free policy was adopted. However, no matter when the tenant signed his or her lease, the tenant may not interfere with other tenants’ use and enjoyment of their units, which includes not creating a nuisance by allowing smoke to escape from inside a smoker’s apartment.
  5. What type of penalties may a resident face if he/she violates the smoke-free policy?  Again, this depends largely on your lease in a multi-family building and the policies in a condo or coop building’s governing documents. Generally, in a condo, violators may be subject to a monetary fine for violating building policies. The board of a condo may also obtain a court injunction mandating that the unit owner stop smoking in the building. In a regular rental building, the tenant can be evicted for breaching the lease. A coop may impose administrative fees. In a coop, failure to comply with provisions of the proprietary lease or house rules may also be grounds for termination of a tenant’s lease and eviction from the apartment.
  6. Is it legal to deny a smoker’s application to rent or buy in a smoke-free building?  Yes. There is no legal right to smoke. New York courts recognize the right of non-smoking residents to live free from second hand smoke. Smokers are not a “protected class” under federal and state laws, compared to protected classes like race and religion, so discrimination laws do not protect smokers. As such, bans on smoking in individual units or rejecting a smoker’s application do not violate equal protection laws.
  7. As part of the smoke-free policy, can a building designate a smoke-free perimeter?  In 2017, the Federal Department of Housing and Urban Development (“HUD”) required all public housing agencies administering low-income, conventional public housing to initiate a smoke-free policy. These policies prohibit smoking in all public housing communities and extend 25 feet from all housing and administrative buildings. Although not covered by the HUD rule,  condo and coop boards may adopt house rules and/or policies within their governing documents prohibiting smoking outside of the building in common areas such as garden areas, patios, roof decks and terraces. While a board can request and encourage that people do not smoke around the perimeter of the building, they generally do not have the legal authority to enforce building policies on public property.

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