Condo Residents Seek Remedy for Neighbor’s Smoking Near School
A New York City condominium building stands next to an elementary school. City and state smoking laws require a 100-foot smoke-free perimeter around school entrances. This would include the sidewalk in front of the neighboring condo for at least 25 feet in both directions from the entrance. A board member and his spouse, in spite of complaints from multiple residents and the no-smoking signs posted by the city Health Department, regularly smoke directly in front of the condo’s entry. The smoke drifts into the lobby when the doors are open. What can unit-owners do?
The laws that prohibit smoking within 100 feet of school entrances make an exemption for residential buildings, Vonetta Dudley, director of NYC Smoke-Free at Public Health Solutions, tells the Ask Real Estate column in The New York Times. So the question of where the smoking is taking place could be important: Is it on the public sidewalk, or on private property?
A bit of background. The city’s Smoke-Free Air Act requires residential buildings with three or more units, including co-ops and condos, to ban smoking and vaping in indoor common areas, including hallways, lobbies, stairwells and laundry rooms. Co-op and condo boards are required to create a policy on smoking and share it with current and future tenants. Boards may adopt a smoke-free policy, including within apartments and on balconies and terraces. Such a ban usually requires a supermajority approval of an amendment to the proprietary lease or bylaws.
But boards have no control over public sidewalks in front of their buildings.
It sounds like this condo’s residents have called in complaints to 311, as there’s a “no smoking” sign from the city Health Department. It’s worth calling again and enlisting neighbors to do so when they suspect that a smoker is in violation of the law banning smoking near school entrances. The Health Department can conduct an inspection and send warning letters to businesses and residences. Multiple reports of violations at the same location can result in fines or other penalties.
There are other avenues. Smoking outside the building entrance could create a violation of the housing maintenance code if the smoke interferes with the peaceful living of residents, or it could create a nuisance case, both of which could be brought in state Supreme Court, says Adam Leitman Bailey, head of his eponymous law firm. Start by checking the board’s policies, he advises, then writing a letter to the board about the drifting smoke.
“Court will work, but it’s expensive,” Bailey adds. “Even when buildings can afford it, why waste your money when there are other methods that are less expensive?”