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Does the new law requiring NYC apartment buildings to have smoking policies mean smoking will be banned?

By Wagner, Berkow, and Brandt | November 28, 2017 - 3:00PM

A new law goes into effect next year requiring that all multifamily residential buildings, including co-ops and condos, as well as rentals, have a public smoking policy.

The New York City Council passed the law in August as part of a package of bills meant to discourage smoking. The smoking policy law requires simply that a building's owners or board come up with a policy and disseminate it. What the policy actually includes is left open-ended.

"The question is what do you put in the policy?" says Steven Wagner, a co-op and condo attorney with the firm Wagner Berkow. "Is the policy going to be that you’re allowed to smoke in your apartment but not common areas? You have to cover everywhere. Your policy may include, for example, that you can smoke in your apartment but you are responsible to make sure that no smoke enters into the common areas."

Wagner says it's common for heavy smokers' in-apartment puffing to send secondhand smoke into the halls, which can create liability for co-ops and condos.

"If you’re going to have smoking in the apartments, you need to make sure that the tenant or the unit owner is responsible for any smoke entering the common areas," he says. "It basically puts the obligation on the tenant to have some kind of negative pressure," as in a fan pointing out a window, "to make sure that it doesn’t go into common areas. That’s one of the things that I’m recommending to my clients."

Another thing to be specific about in your building's policy is "How do you define smoking?" Wagner says. "It usually will include burning of any combustible products, including, among others, tobacco, and also vaping, electronic cigarettes."

Banning smoking in common areas is a pretty straightforward proposition. "No smoking in apartments is a little trickier," Wagner says. He recommends adding no apartment smoking clauses to proprietary leases (in co-ops) and bylaws (in condos) in addition to just the building policy.

Once the policy has been drawn up, with care to be sure it covers every inch of the property, including outdoor areas, rooftops, balconies, courtyards, and patios, the law requires that it be posted in a prominent part of the building, or that copies be given to all residents.

"It should just be as clear as you can make it, so that if you have to enforce it there be no ambiguity," Wagner says.

The law goes into effect in August 2018. Violations will be punishable by civil fines of $100 for each occurrence.

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