Medical evidence has shown that exposure to second hand smoke is dangerous to a person’s health and can in fact cause the same diseases that affect smokers themselves. In response to this information, in 2002, NYC Council passed the Smoke-Free Air Act, which as of 2011, prohibits smoking in, among other places, all enclosed areas within public spaces including public transportation facilities, public means of transportation, public restrooms, retail stores, restaurants, libraries, business establishments, libraries, museums, galleries, movie theaters, concert halls, auditoriums, convention halls, sports arenas, recreational arenas, gymnasiums, parks, and other property within the jurisdiction of the Department of Parks & Recreation. Additionally, legislation is pending so that by 2016 all public housing would be classified as smoke-free.
Notably absent from these statutes is a ban on smoking in private homes. With the abundance of NY condominiums and cooperative apartments, there are often complaints from owners about smoke emanating from surrounding units. Trying to address these issues with air purifiers and exhaust fans has proved to be insufficient and has left the Boards of many cooperatives and condominiums wondering what they can do about banning smoking in the entire building, including the individual units.
The most effective means of dealing with the smoking issue is for Boards to amend their governing documents (for Condominiums, this means amending their By-laws and for Cooperatives, this means amending their proprietary lease) according to the procedure set forth in the By-laws i.e., a vote by a certain number of units, percentage of common interest or shares as it applies. The ban could be implemented in a variety of ways, such as a blanket ban throughout the entire building, a ban just for renters and not owners, a ban that would allow current owners to be “grandfathered in” so that a full ban could be phased in gradually, as well as many other options. Banning smoking in individual units can be a controversial step to take. As such, it is good ideas to have Boards circulate a questionnaire to owners asking whether they would support or oppose such a ban before attempting to put the ban in place. Thus far, there is at least one NYC condominium building that has successfully passed an amendment that bans smoking throughout the entire building.