Can a NY Condominium Association Board Ban Smoking?
Yes, New York condominium boards can implement no smoking policies. It is usually impossible to prevent a neighbor’s secondhand smoke from entering your condominium. Even running a purifier may not remedy the problem. According to the American Society for Heating, Refrigerating and Air Conditioning Engineers, no standard ventilation system or air purifier can completely remove secondhand smoke. Exposure to secondhand cigarette smoke is not just an annoyance, it also poses a serious health hazard. Even seemingly minimal exposure to secondhand smoke can have negative health consequences on those who are forced to breathe it. There are no safe levels of secondhand smoke for either children or adults.
Secondhand smoke seeps under doors and through ventilation ducts, electrical outlets and light fixtures into both the common area and neighbor’s individual condo units where it lingers for hours at a time. Many medical conditions are exacerbated by smoking. Residents with medical conditions which make breathing difficult are significantly aggravated by constant exposure to second-hand cigarette smoke
Exposure to cigarette smoke raises serious health concerns for neighbors, particularly for their children and those who are more susceptible to the negative effects of secondhand smoke. Health concerns related to secondhand smoke include, but are not limited to:
- Nonsmokers who are exposed increase their risk of developing heart disease by 25-30 percent.
- Nonsmokers who are exposed increase their risk of developing lung cancer by 20-30 percent.
- Children exposed to secondhand smoke are more likely to develop bronchitis, pneumonia, asthma, and ear infections.
- Secondhand smoke has been linked to Sudden Infant Death Syndrome.
- Even brief exposure to secondhand smoke can have immediate adverse effects such as triggering asthma attacks and increasing the risk of a heart attack.
- Smoke causes dry eyes and breathing difficulties.
Cigarette smoke also permanently damages neighbor’s condos and their personal property. The smell can seep into their walls, carpets, clothing, and furniture. When the heat is on, neighbors can smell the smoke coming through the ventilation system. The vents can be permanently damaged by smoke and require regular cleaning. New York condo owners have the legal right to breathe the air where they reside in its natural condition, free from pollution by secondhand smoke. Violation of such right is a nuisance and entitles you to an injunction and the recovery of monetary damages.
To enforce your rights as a NY condo owner you should demand that your condo association board
- Enforce the current condo nuisance rules;
- Make a reasonable accommodation for your disability; and
- Implement a smoke-free policy (“the Policy”).
Secondhand smoke is a violation of the following types of condominium rules :
- Units may not be used in any manner which would be illegal or disturbing or a nuisance to other residents.
- No nuisances shall be allowed on the property nor shall any use or practice be allowed which is a source of annoyance to residents or which interferes with the peaceful possession and proper use of the Property by its residents.
- No nuisances shall be allowed on the property nor shall any use or practice be allowed which is a source of annoyance to its residents or occupants or which interfere with the peaceful possession or proper use of the property by the residents and occupants.
Request that your condo board make a reasonable accommodation for your disability pursuant to the requirements of federal and state fair housing laws. The U.S. Surgeon General has concluded that there is no safe level of exposure to secondhand smoke. Moreover, the U.S. Department of Housing and Urban Development (HUD) has mandated that reasonable accommodations be made for persons whose disabilities are exacerbated by drifting tobacco smoke.
Your request implementation of a smoke-free policy as follows:
- a) Smoking shall be prohibited everywhere on the Condominium property, including, but not limited to, individual units, indoor and outdoor exclusive use areas, indoor and outdoor common areas.
- b) No owner shall smoke, or permit smoking by any occupant, agent, tenant, invitee, guest, friend, or family member anywhere on the property.
- c) Smoking in violation of this rule shall constitute a nuisance pursuant to the terms and provisions of its constituent documents of the association.
- d) Smoking shall include carrying, burning, or otherwise handling or controlling any lit or smoldering product containing tobacco or cloves, including commercial tobacco products, but not limited to cigarettes, cigars, e-cigarettes or pipes.
The Policy will eliminate your exposure to drifting tobacco smoke and alleviate the symptoms of their disabilities. Your request is “reasonable” because there will be little, if any, burden on the condo board to grant your accommodation request. Given the proven health risks associated with smoking and breathing secondhand smoke, the board should deem it in the best interest of all members of the association to change the Rules and Regulations to prohibit the smoking of tobacco products on the entire property. Nothing in New York state or federal law, including the Federal Fair Housing Act, prevents the imposition of smoking prohibitions in multi-unit dwelling buildings.
The Policy will also prevent the risks of injury to residents from fire. Indoor cigarette smoking presents a further health hazard in that it is a leading cause of residential fires and the number one cause of home fire-related deaths. Condominiums are especially susceptible to fire spreading from neighboring units. Smoke-free policies are enforceable, and implementation is straightforward. Condo associations may legally implement a smoke-free policy because smoking is not a right protected by the U.S. Constitution or New York State law. Condo boards have a duty to act in the best interests of their members.
To enforce your rights as a condo owner, call New York attorney Robert Friedman at 716.542.5444.
Friedman & Ranzenhofer, Attorneys at Law Client Review
“I contacted Mr. Friedman after researching attorneys that could assist with an HOA smoking related issue. Mr. Friedman responded immediately. After exchanging a few emails, I was confident Mr. Friedman was the attorney who would assist myself and a select few of neighbors in ensuring our building would become what a home is meant to be ~ a safe haven where our health is not in jeopardy and where we are able to enjoy a peaceful existence without fear of serious consequence from second hand smoke. Mr. Friedman was direct, he was informative and he acted swiftly. I highly recommend Mr. Friedman and his law firm.”