Eva Talel

Since at least 2006, when the U.S. Surgeon General issued a report concluding that exposure to second-hand smoke (SHS) can cause or exacerbate heart disease, lung cancer, strokes, and respiratory ailments (The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General (2006)), co-op and condominium boards and managers have struggled with how to deal with SHS in the buildings they represent and manage. (The most recent example of the difficulty posed for boards in dealing with SHS is the Appellate Division, First Department’s decision in Reinhard v. Connaught Tower Corporation, 150 A.D.3d 431 (1st Dept. 2017), which finally resolved an apartment owner’s SHS allegations and claims in the board’s favor, following nine years of litigation.) This column discusses recent New York City legislation which imposes on residential landlords and boards the obligation to adopt a smoking policy within one-year, and federal legislation which requires public housing agencies to implement a smoke-free policy banning the use of prohibited tobacco products in public housing apartments and adjacent outdoor space by mid-2018. This column also provides guidance to boards and managers as to how to establish the required policy and also limit the proliferation of SHS in co-op and condominium buildings.

Required Smoking Policy. On Aug. 28, 2017, Local Law 147 (NYC Int. 1585, 2017 Local Law 147) (LL 147), was enacted into law. It requires that every residential building, expressly including co-op and condominium buildings, establish a written policy which states where in the building (and in all common outdoor areas, including common courtyards, rooftops, balconies and patios) smoking is permitted or prohibited, and to do so no later than the one-year anniversary of LL 147’s enactment. The law requires that the policy (and any material changes thereafter made to it) must be provided to all tenants/apartment owners and publicly displayed in the building.

Specifically regarding co-op and condominium buildings, LL 147 requires that apartment owners must incorporate the building’s smoking policy into any agreement made by them to rent or sell an apartment, and boards must incorporate the policy into the entity’s bylaws or rules.

The City Council’s and Mayor’s stated rationale for enacting LL 147 was, among other reasons, to “encourage more buildings to adopt smoke-free policies” because “[t]here is no safe level of exposure to [SHS].” NYC Council Transcript of the Minutes of the Committee on Health, April 23, 2017, pg. 42 (search Int. 1585); see also “Mayor De Blasio signs Sweeping Legislation to Curb Smoking, Tobacco Usage,” Aug. 28, 2017. The City Council also noted that “the U.S. Department of Housing and Urban Development” (HUD) “recently issue[d] a rule that will require public housing authorities nationwide, including NYCHA, to adopt smoke-free policies by mid-2018,” including a 25-foot smoke-free perimeter around every building (the HUD Rule). Instituting Smoke-Free Public Housing, 24 CFR parts 965 and 966, 81 FR 87430, Dec. 5, 2016.

While LL 147 does not prohibit smoking within apartments, nor does it require that any specific prohibitions be included in a building’s smoking policy, it does extend the current law prohibiting smoking in building common areas to buildings with fewer than ten apartments, including co-op and condominium buildings.

Essentially, LL 147 is a disclosure statute, enacted so that prospective tenants and purchasers of apartments can make an informed decision as to whether a building’s smoking policy is one which makes the building a desirable home for such tenant/purchaser. And while owners of residential rental buildings may lawfully incorporate a building-wide smoking ban, including within non-rent-regulated individual apartments, co-op and condominium buildings likely may not do so without amending the co-op building’s proprietary lease and the condominium’s bylaws by the requisite vote of apartment owners. Siegler and Talel, Cooperatives and Condominiums, “Second-Hand Smoke and Smoking Bans,” N.Y.L.J. March 6, 2013, pg. 3, col. 1.

Nonetheless, there are steps boards can take to limit the proliferation of SHS, and the HUD Rule provides legal support for boards to do so.

Rationale for HUD Rule Requiring a Building-Wide and Perimeter Smoking Ban. In adopting the HUD Rule, HUD addressed and rejected a number of comments and challenges—determinations which also provide support for board actions, including proposing the adoption by apartment owners of a building-wide smoking ban in order to address SHS.

Thus, objections were raised to the HUD Rule’s ban on smoking in outdoor areas within 25-feet of a building’s perimeter. HUD rejected the objections, finding that “a sufficient perimeter is … needed to prevent SHS from entering windows that are open in units on lower floors and [SHS] exposure to individuals [within],” and that “toxins present in SHS approach ordinary background levels [only] approximately 23 feet from the source, thereby justifying enactment of a 25-foot building perimeter smoking ban.” 81 FR 87430 at 87433.

Objections to the HUD Rule were also raised based on the burden placed on residents who are smokers—i.e., to cease smoking or travel beyond the building’s 25-foot smoke-free perimeter in order to smoke. This challenge too was rejected by HUD, finding that there “is no right” to smoke and “smokers are not a protected sub-class under anti-discrimination laws … .” Id. at 87434. HUD also noted that under its regulations, existing tenants cannot be “grandfathered” by exempting them from the application of the HUD Rule.

Similar objections were raised based on the HUD Rule’s alleged invasion of civil rights because “it would ban an individual’s freedom to do something that is legal” and is an invasion of smokers’ privacy” rights – “people should be allowed to smoke in their own homes.” Id. at 87440. Again, HUD rejected these objections: “courts have found that smoke-free policies do not violate the Equal Protection clause because there is no fundamental right to smoke [and a smoking ban therefore] does not infringe on a fundamental Constitutional right.” (citing to Brashear v. Simms, 136 F. Supp. 2d 693 (D. Md. 2001); Fagan v. Axelrod, 146 Misc. 2d 286 (Sup. Ct. 1990)).

Last, HUD rejected the argument that a ban on indoor smoking would be unnecessary if better building construction methods were used or by improving ventilation, noting that the Surgeon General concluded that “cleaning the air, and ventilating buildings, cannot [fully] eliminate exposure to [SHS].” The Health Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon General (2006).

Adopting a Smoking Policy and Related Recommendations. Boards and managers should deliberate, consult apartment owners and counsel as they deem appropriate, and adopt, disseminate and display the required smoking policy not later than mid-August of 2018. Based on the scope and intent of LL 147, and the rationale of the HUD Rule, such a policy may and should address all common areas, including all of the building’s common outdoor spaces and a perimeter area around the building. Based on HUD’s rejection of objections to the HUD Rule, smoking limitations in building perimeters are enforceable. In addition, boards and managers should advise apartment owners to include the building’s smoking policy in any lease, sublease and apartment purchase contract which they enter into, and the entity’s by-laws and/or house rules should be amended to incorporate the smoking policy.

Further, boards may also wish to take this opportunity to consider and raise with the building’s apartment owners a building-wide ban on smoking, including within individual apartments and private outdoor spaces. Based on the objections rejected by HUD, bans on smoking within apartments, when properly adopted by apartment owners under the building’s governing documents, are enforceable and should, therefore, not be an impediment or disincentive to apartment owners who are considering adopting such a ban. Specifically: there is no right to smoke; smokers are not a protected class; “grandfathering” of existing apartment owners’ smoking activity is neither required nor encouraged; smoking bans are not an invasion of civil rights nor of an apartment owner’s privacy rights, nor do they violate the Constitution’s Equal Protection Clause.

Last, boards may wish to consider adding to the board package required to be submitted by prospective purchasers an inquiry as to whether the prospective purchaser and proposed apartment occupants are smokers. Based on the rationale for adopting the HUD Rule, such a question is not legally objectionable and asking it may allow even those buildings which do not adopt a building-wide smoking ban to contain the level of SHS in the building by screening prospective apartment purchasers and permitted occupants so as to eliminate smokers.

Eva Talel is a partner at Stroock & Stroock & Lavan and an adjunct professor at New York Law School. Sunny Velez, policy analyst at The Real Estate Board of New York, and Margaret Jones, a research librarian at Stroock, assisted in the preparation of this column. The firm is counsel to the Real Estate Board of New York.