Adoption of NYC Local Law 147 Smoking Policy: Memorandum from General Counsel Ben Kirschenbaum

On August 28, 2017, Mayor DeBlasio signed into law Local Law #147/2017 requiring the owners of all Class A multiple dwellings, including all cooperative corporations and condominiums to adopt a “smoking policy” no later than August 28, 2018. A copy of the law is attached to this memorandum. The purpose of this memorandum is to outline the requirements of this law so that the boards of our managed properties will have time to consider how the cooperative/condominium will comply.

General Overview

The law defines a smoking policy as “a written declaration that states in a clear and conspicuous fashion where smoking is permitted or prohibited on the premises of a class A multiple dwelling.” In addition, the smoking policy “shall address all interior locations of a class A multiple dwelling, including common areas and dwelling units, and all outdoor areas of the premises, including common courtyards, rooftops, balconies and patios, and any outdoor areas connected to dwelling units.”

We note that current law prohibits smoking in the “common areas” of multiple dwellings with 3 or more units. 

The new Local Law was one of a number of laws adopted to encourage restricting the ability to smoke in a multiple dwelling, and thus, to protect people from the hazards of secondhand smoke. However, the law itself does not require the smoking policy adopted by the board to include any specific restrictions (other than as otherwise required by law). It merely requires the board to adopt a policy and to disclose that policy (and any future revisions to the policy) to all residents and potential residents.
We should note that the smoking policy will not apply to any rent controlled or rent stabilized tenants in place prior to the adoption of the policy. Thus, if there are any “unsold shares or units” with such tenants in occupancy, these residents will not be obligated to comply with a smoking policy that is different from the policy in effect at the commencement of their lease/occupancy.

FirstService Residential is pleased to provide this memorandum to our boards, but as always, the board should review the law and any efforts to comply with the law with their own counsel. We are providing our recommendations based on our experience, but we defer to your attorneys on legal advice.

Adopting a Smoking Policy

The passage of this law gives each board an opportunity to consider adopting additional limitations on smoking consistent with the desires of the owners in the building. Naturally, there is likely to be a diverse set of opinions in this area. Unless there is a strong consensus to limit smoking in the apartments, the board will have a difficult time adopting anything but a policy that mirrors the restrictions of current law.

Procedurally, there are some obstacles in complying with the law. First, it is up to the “owner” to adopt the smoking policy. For the purposes of the law, the owner of a cooperative is the board of directors, and of a condominium, it is the board of managers. Thus, the boards adopt the policy. However, the law also provides that “in a condominium, the board of managers shall incorporate the building’s smoking policy into the condominium by-laws or rules” and “in a cooperative apartment corporation, the board of directors shall incorporate the building’s smoking policy into the by-laws or rules of the cooperative apartment corporation.” Clearly, these provisions ignore the fact that boards of both a condominium and cooperative in most cases do not have the ability to amend by-laws without unit owner/shareholder approval and that for cooperatives the more relevant document to amend would be the proprietary lease. We defer to the attorneys for our condominiums and cooperatives to advise if there is an obligation to amend the bylaws and suggest that the board adopt the smoking policy as a house rule.

Unless a board desires to impose limitations on smoking beyond those required by existing law, we suggest adopting the following as the smoking policy:

Smoking Policy:

Smoking and using electronic cigarettes is prohibited in any common areas within the interior of the building(s) as required by all applicable laws and is permitted in any of the dwelling units. 

Smoking and using electronic cigarettes is permitted in all outdoor areas, including but not limited to, common courtyards*, rooftops*, balconies and patios, and any outdoor areas connected to dwelling units.

*We note that while the law permits smoking in these areas, existing rules in many of our cooperatives and condominiums currently prohibit smoking in these two areas. Existing rules should be reviewed.

The definition of “smoking” is contained in the original Smoke Free Air Act (Title 17, Chapter 5 of the NYC Administrative Code) and is as follows: "Smoking means inhaling, exhaling, burning or carrying any lighted cigar, cigarette, pipe, or any form of lighted object or device which contains tobacco”. The Code was amended to address electronic cigarettes. Thus, the provisions of the Code that contain prohibitions use the phrase “smoking and using electronic cigarettes”. We adopted this phrase in the policy.

This policy mirrors the language of the new law, and we believe it meets the requirements of the law. This policy places the minimum restrictions on smoking consistent with current law. Again, before adopting any policy, we recommend that the board consult with their attorney.

Notice Requirements

Once the board adopts a smoking policy, the law sets forth certain disclosures that are required. 

Notice of Initial Adoption. After the board adopts a smoking policy, it must be disclosed by “owner” to all “tenants”. As noted, the owner includes the boards of cooperatives and condominiums, and tenants includes condominium unit owners and cooperative tenant-shareholders. It also includes anyone who is a tenant of a condominium unit owner or a subtenant of a tenant-shareholder. There is an option on how the required disclosure may be accomplished. The smoking policy must either be provided to each tenant or posted in a prominent location. We recommend mailing a copy of the smoking policy to all people living in the building (unit owners/tenant-shareholders and tenants/subtenants) and to any unit owners/tenant-shareholders who are not currently residing in the building at their alternate addresses. There can be a proof of mailing retained that becomes the evidence of compliance with this aspect of the law.

Annual Notice. A copy of the smoking policy must be provided to all “tenants” on an annual basis. The annual distribution options are the same way as the initial notice of the adoption of the policy; either by providing a copy  to each tenant or by assuring that the policy is posted. We recommend doing this by mailing a copy of the policy to all tenants so we can again retain a proof of mailing as the evidence of compliance with this notice requirement.

Notice to New Residents. This places an obligation directly on each condominium unit owner and cooperative tenant-shareholder to incorporate the smoking policy into “any agreement to rent or purchase the dwelling unit or shares in the cooperative apartment corporation”. Thus, when we distribute the initial notice of the adoption of a smoking policy and the annual notice, we plan to inform the unit owners/tenant-shareholders that they are obligated to notify any potential tenant/subtenant or purchaser of the smoking policy. In addition, we recommend that the board modify the application for each purchase and lease/sublease to include an acknowledgement that purchaser/tenant/subtenant has received the smoking policy. We will develop sample procedures to accomplish this goal.

Naturally, if there is a material change to the smoking policy, the board must distribute a notice of the amended policy. The law requires each owner to maintain copies of the records showing compliance with these notice requirements. FirstService Residential will set up procedures to meet these requirements. 

Penalties for Failure to Comply with Law

The law sets up penalties for any violations, specifically any violation of the obligation to adopt a policy and to disclose the policy. Penalties are between $200 and $400 for a first violation, between $500 and $1,000 for a second violation in a period of twelve months, and between $1,000 and $2,000 for a third and subsequent violations in a period of twelve months. We note that the penalties for a violation may also be imposed upon a tenant-shareholder of a cooperative or a unit owner of a condominium who fails to provide notices to purchasers or tenants/subtenants. Thus, as mentioned above, we will prepare a cover letter to accompany the initial distribution of the smoking notices that will notify the tenant-shareholders and unit owners of their obligations upon any sale/lease/sublease.

We are distributing this memorandum now so that each board may start to consider how they wish to address the adoption of a smoking policy. We will circulate it again as the deadline to adopt a smoking policy, August 28, 2018, approaches.