Smart Strategies for Managing Smoking in Your Building

If you’re struggling with smoking issues in your building, Helene Hartig, founder and principal at Hartig Law, offers boards practical guidance on establishing rules that will actually pass a shareholder vote, balancing the rights of smokers and non-smokers, and handling medical exceptions without inviting discrimination claims. She offers effective strategies for addressing violations without costly court battles. Whether you're dealing with tobacco odors seeping through vents or marijuana smoke wafting from terraces, this episode provides the toolkit you need to craft solutions that protect health concerns while respecting personal freedoms. Habitat’s Paula Chin conducts the interview.

The business of running a building is demanding work that requires making endless decisions — some that can quickly lead your board into a quagmire of legal difficulties. Legal Talk interviews New York's leading co-op/condo attorneys to find solutions, and get some guidance, on these challenges. For more co-op and condo insights, sign up to receive Habitat's free newsletters or become a Habitat subscriber today!

Transcript

[00:00:00] Paula Chin: Welcome to Legal Talk, a conversation about governance issues that New York's co-op and condo boards are tackling today. I'm Paula Chin with Habitat, the New York City magazine for co-op and condo board directors. My guest today is Helene Hartig, founder and principal at Hartig Law. Local Law 147, which requires all residential buildings to create a written policy stating where smoking is permitted and where it's not, is something of course, that all boards have to address, but they often don't quite know all the ins and outs and basically where they have to set this policy. Can you start at the beginning, Helene, and tell us what a policy should cover? 

[00:00:44] Helene Hartig: Sure. A smoking policy does not necessarily have to have a no smoking policy.

It should cover the building's position or their standards on smoking. Smoking of tobacco, smoking of marijuana, smoking of pipes, any sort of smoking. Whether it's allowed and where it's allowed, whether there's a designated smoking area, whether you could smoke on your terrace, whether you can smoke only outside the building or not even outside the building, whether it's a complete smoking ban.

So the policy should be as specific as possible and should address again, what type of smoking is allowed, what type of smoking isn't allowed. If it's a co-op, you have to have a vote. A condo as well: you have to have a super majority, which is typically 66 and two thirds of the shareholders need to vote yes. It's not a vote of 66 and two thirds or 75%. It depends on the governing documents, but you need to have a super majority. Because of that, you need to do a campaign. The board needs to decide what do they want. 

It's most important that the board between themselves decide what they want and how can they best accomplish it. For example, even if board members are completely against smoking, if you know that you're not going to get the vote if you prevent smoking, except in a designated smoking area, then you might wanna water down and have a lesser no smoking policy. If you've got a building such as many of my buildings on the West Side that say we don't like tobacco. Tobacco is very strong. It leaves stains on the carpet. It smells. But marijuana, people wanna vape. Everybody does it. It's today's times. They have policies sometimes where they don't allow tobacco or they don't allow pipe smoking, but they do allow marijuana smoking. So it's a question of degree and what a building wants to do and how they think they can achieve it. If you think it's going to be tough to get the vote, just like with a flip tax, if you think it's tough to get a 3% flip tax, ask for a 1% flip tax. With the smoking policy, you might be a little more limited and say, fine, you could smoke, but do it in the little area we give you in the building courtyard in the back and not ban it all together.

[00:03:12] Paula Chin: Speaking of degree, what rights do boards have? Can they ban it everywhere, even inside people's private areas? In other words, inside their apartments. Can boards do that? 

[00:03:24] Helene Hartig: You can totally ban it, but there are issues. There's issues of whether people are grandfathered in. The rent stabilized tenants in particular, if you've got a building with a sponsor, they have super rights. And under those super rights, you cannot ban them from smoking if they wanna go ahead, smoke, kill themselves, that's their right. So people are resentful of that sometimes. However, if you've got a situation, whether it's a rent-stabilized tenant or it's a shareholder. And even without a no smoking ban, if people are smoking to the extent, for example, cigarette butts are being thrown off the terrace, if people smoking is so excessive that it goes through the vent, people have asthma, people can't breathe.

Secondhand smoke is a basis for liability in certain circumstances. You can go after the offenders under a nuisance. Because every proprietary lease and the condominium house rules or bylaws typically say that you cannot have odors or smells or take any action, which interferes with the quiet enjoyment or the rights of your fellow residents. And if you do it is a violation of the house rules, and that's an independent basis. You can violate the no smoking policy if there is one, but even without a specific, no smoking policy, if people create a nuisance by their actions, that in and of itself constitutes a breach.

[00:04:51] Paula Chin: What about exceptions? Let's say a building has a complete ban. And somebody says it's medical marijuana. Obviously they have to make that exception, correct? And how do they know that these claims are true? 

[00:05:04] Helene Hartig: Good question. Under the law, you have to give shareholders what's called a reasonable accommodation.

So you usually see it with these doggy eviction cases where people say, oh, Fido's my emotional support dog, and here's a letter from my therapist. I think that very trusting buildings, you can take what people say at face value, but most people don't. If somebody says, look I'm sick, I've got a prescription for medical marijuana, for example. Even though there are HEPA privacy requirements, you are within your rights to ask for some independent verification that there is a prescription. You wouldn't go so far as to say, what do you need the prescription for? We wanna see what type of cancer you have.

But you could certainly say, can you give us some verification that this is a prescription and not just for recreational use or pleasure. And you should ask for that because otherwise everybody will jump on the bandwagon. That is an exception. 

[00:06:01] Paula Chin: Okay. Let's say you have to make that exception.

And I find this area really interesting of clash of rights in a building among unit owners and shareholders. So let's say you allow it and this person is not vaping, but smoking marijuana that smells and it's bothering the resident next door.

How do you resolve those kind of conflict? 

[00:06:23] Helene Hartig: It's very difficult. You try not to get into court no matter what. Because courts are time consuming. They're expensive. If you get a judge who's a chain smoker, you'll never get any relief. There have been some cases especially during Covid where people were smoking up a storm, everybody was nervous and some of the judges have said, so what?

We're sorry that it's bothering everybody. We're sorry, but just you've gotta be a little more tolerant. So going to court, you can do it as a breach of the proprietary lease because if a no smoking policy is in the lease or in the bylaws, you can go to court and you can get what's called a injunctive relief, which stops the person, and if the person doesn't stop smoking in the building, they could be held in contempt. It's very difficult though. The best way to resolve this, just as you try to resolve noise complaints, just as you resolve other quality of life issues, even though this is more than quality of life, it's a health issue, is talk to the person.

 Some of my buildings have policies in place. If there is a violation and it's proven, you have to put in an air purifier, for example, you have to put underneath the door, I forgot what it's called plastic, a rubber mat, which will prevent the smoke from going into the hallway. You can do something with a vent.

That will be preventive all at the offending residents expense. So there are ways of doing it short of going to court. You can have fines and penalties, which are questionable because again, if it's not in the proprietary lease, there's an issue of whether you can put it in the house rules. So many buildings do, they put fines and penalties, but it could be challenged.

You can serve a notice to cure and tell the offending resident, we are going to go further If this doesn't stop and it doesn't stop quickly. People can also claim I haven't had it in co-ops, but I've had it in rental situations that, hey, I'm a chain smoker. It's an addiction. I'm sorry. You've gotta reasonably accommodate me.

I can't stop smoking. That's a very thorny issue, but I would take the position: this is a no smoking. It's well publicized. The building, just like you could change the subletting rules, can change the rules with respect to smoking. And, I suggest you go to a special program because this, it's not going to be tolerated. Or go outside, take a walk around the block if that's what you need to do.

So. 

[00:08:47] Paula Chin: Getting back to even with medical marijuana and it's causing a nuisance or odors, and you essentially take the side of that person, then aren't you open to a lawsuit or the smoking party, obviously filing a discrimination and how does the board balance that?

[00:09:08] Helene Hartig: It's very difficult because you're also open to the person who's being, hurt by the smoke to bringing a lawsuit claiming that the secondhand smoke is offending them. There have been cases in landlord tenant court, including cases involving co-ops, where the judge has awarded an abatement claiming it's a breach of the warranty of habitability to the person who's being offended by the smoke. So you're right, it's a very delicate balance between the smoker versus the non-smoker. The smoker can bring a discrimination suit, go to the Division of Human Rights. There's one in New York City, there's one in New York State. But it's really --

if you provide, for example, a separate space where people can smoke, that will really help against a discrimination claim because you're not banning smoking all together. You're just banning it in somebody's apartment, and you are finding a safe space where they can do their thing and it can't be to the detriment of other unit owners. I think if it's a total ban and there's no place in the building, no place around the building, no place outside the building that will be looked at a lot more harshly by any commission than when we're trying to be accommodating to both sides of the equation.

[00:10:25] Paula Chin: Helene, what's the takeaway for boards here? 

[00:10:27] Helene Hartig: The takeaway is whatever you do, make sure people are aware of the rules. You publicize the rules, they're in writing. While you are trying to get the vote, and after you get the vote, you send out very detailed newsletters explaining the reasoning behind what you're doing, that you appreciate you don't wanna regulate people's lives. However, these are the dangers of secondhand smoke. There's fire hazards, there's insurance issues, there's stains on the beautiful new carpeting the building just got. These are all the reasons why, we don't wanna control your life, but we've decided that we need a smoking policy, but we've decided we want a more restricted policy for all these reasons.

Tell people why and tell them the consequences. If they don't follow the rules. We can hold you in breach of your proprietary lease, of the condo bylaws. And if need be, we can go to court to enforce the rules and you're going to pay for it. So stay safe, stay healthy, and stop smoking. So the takeaway is, the board should be informed, the board should inform others.

You shouldn't be so overreaching that you risk alienation and not getting the vote, and at the same time, the exceptions that you make, can't be because you feel sorry for somebody. They have to be made based on some objective verifiable reason, such as a medical prescription, for example. 

[00:11:51] Paula Chin: And I would imagine the exceptions, one has to craft them carefully so that they don't impose on the rights of other people.

Correct? 

[00:11:59] Helene Hartig: Of course, because somebody might have asthma downstairs and the smoke is coming through the vent, versus the person that you know just wants to have a smoke four times a day. So you always have to balance their rights. 

[00:12:11] Paula Chin: Helene, I think this really is a sticky problem for a lot of boards, and this has been really informative.

Thanks for joining us. 

[00:12:18] Helene Hartig: Thank you. Thank you for having me, Paula. I appreciate it.