Smoking In/Around Residential Buildings in NYC

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Smoking In/Around Residential Buildings in NYC

New York State laws regulating smoking include the Outdoor Smoking Ban and the Clean Indoor Air Act. The first addresses smoking in public places, like parks and beaches, while the second addresses the indoors of public locations, like restaurants. The New York City Smoke-Free Air Act covers smoking regulations within New York City’s five counties/boroughs. This law was first enacted in 1998, then amended in 2002 and 2017. A brief summary of these laws details that smoking is allowed in private residences and general public areas, but is not allowed within residences’ common areas, nor in any public establishment or workplace.

For the purposes of this request, we focused only on those laws (state which include federal, and city-level) related to residential buildings indoors, outdoors, and in common areas, as well as rooftops. For rooftops, we included more than just residential buildings, since your request specifically mentioned rooftop bars. For residential buildings, we focused our search on all types of residential buildings (including single-owner homes, condos, co-ops, multi-family rentals, and low-income housing).
We’ll include state laws, which incorporate all federal regulations (so these are not outlined separately), and local-level laws applying to New York City.

NEW YORK LAWS REGARDING SMOKING

New York Health government website details all state-wide regulations of smoking regarding private residences, public areas, and workplaces. New York signed an outdoor smoking ban in 2011, which went into effect in 2016. This law makes it illegal to some in public parks or on public beaches, as well as pedestrian plazas (Times Square, as an example).
The New York State Clean Indoor Air Act “prohibits smoking in any indoor areas within ‘places of employment’”. Although this is most-applicable to public places and places where people gather (like restaurants and such), it also applies to residential buildings that employ “cleaning crews, managers, or other staff” and the areas in which they work (like common areas). The law also notes that smoking is prohibited within 100 feet of schools.
The New York City Smoke-Free Air Act is the main regulatory guide for smoking in the city. This law was first enacted as the Smoke Free Air Act of 1998, and has been amended several times. The Smoke-Free Air Act of 2002 (the most recent version of the law) went into effect on March 30, 2003 banning smoking in all workplaces and public buildings, as well as in common places where people meet, like restaurants. This includes locations like rooftop bars and restaurants, no matter whether they are located on the tops of residential buildings or other buildings.
Additionally, this law “prohibits smoking in lobbies, stairwells, hallways, elevators, laundry rooms, and other common areas in residential buildings with ten or more units” (according to one source). This applies to all types of residential units meeting the unit requirement (including rentals, condos, and co-ops). However, the NYC Health website (official city website) notes that smoking (cigarettes or e-cigs) is “prohibited in common indoor areas of buildings with three or more residential units,” so that is the standard which should be followed. Lawyers at Lexology confirmed that the change to the number of residential units was an amendment to the law that came recently (2017) so three is the most-current regulation by which to abide.
Smoking is allowed in all private residences across the country, state, and city, except in cases where a child care facility or healthcare facility (like a small private direct care home-facility) are operating. Then, the no-smoking ban applies to all areas in which employees might work and all common/open areas.
Another recent (2017) amendment to the law, which goes into effect in August 2018, “requires that every ‘owner’ of a multiple dwelling with three or more units adopt and disclose a smoking policy to the tenants of the building.” The policy must address indoor common areas (and other locations), as well as “all outdoor areas of the premises (including courtyards, rooftops, balconies, patio and any outdoor areas connected to the dwelling units).” The policy applies to all types of residential units (including rentals, co-ops, and condos) having three or more units. Additionally, “the policy must also be incorporated into any agreement to sell a condo unit or co-op apartment” so that the new tenants/owners abide by the policy. One important note is that “there is no requirement to adopt a policy prohibiting smoking in apartments, only that there be a written policy in regard to smoking”. For more detailed information on this, see this outline of the laws provided by Lexology.
New York state law regulates smoking in building entryways/grounds, though each county/municipality determines their own application/specifics of these laws. NYC covers five counties/boroughs (New York County, Kings County, Bronx County, Richmond County, and Queens County). A search of these counties showed no specific laws relating to entryways or grounds in these areas, so state-level laws apply here. Since the law makes no mention of the distance a smoker must be from a residential building to legally smoke, this would be left up to the individual owners’ application of the law. However, if we consider the property line to be the limit of the common area associated with a building, then the property line would suffice. If the property line ends at the start of the sidewalk (common in this city), the smokers can imbibe in front of the building, as long as they aren’t technically on the property. As for awnings, there is no specific portion of the law related to these (as noted), but the area underneath them likely falls within the common areas of the building, and therefore, must be smoke-free. It would be best to consult a NYC attorney to ensure you are meeting all possible applications of the law, however, just to protect yourself.
Residential building owners are responsible for the application of smoking laws within their buildings (including required building signage), and are liable for any violations that occur, as well as penalties that may be applied for failure to comply with the law.

SECONDHAND SMOKE

The New York City Smoke-Free Air Act of 2002 also allows for legal action to be taken in cases where a tenant’s smoke is drifting into another resident’s living space, though this is discouraged by the state due to the expense and length of these suits; rather, they recommend that this be handled with the building’s management or owners first. If a resolution acceptable to all is not reached, then legal action can be taken. Several legal cases “have found that exposure to secondhand smoke constitutes a nuisance or violates the warranty of hospitability,” including:
Duntley v Barr (2005): Smoker-tenant was found liable to adjoining resident “for interfering with his use and enjoyment of his own premises”.
Poyck v Bryant (2006): Landlord failed to address secondhand smoke traveling from one residence to another which violated New York City’s Real Property Law related to habitability.
• Upper East Lease Associates v Danielle Cannon (2011): “Landlord violated warrant of habitability” over traveling secondhand smoke entitling the non-smoker to a rent reduction.
Additionally, the law also allows for reasonable accommodations related to smoking and secondhand smoke to disabled persons, those afflicted with Chemical Sensitivity Disorder (MCS), or other ailments like COPD or asthma. Violation of these laws can result in legal action under the Federal Fair Housing Act (FHA).

SMOKE-FREE POLICIES

A smoke-free building in its entirety is up to the discretion of the owners (which may be owners, a management company, a co-op board, etc). According to Smoke-Free Housing New York, “there are no federal, state, or local laws that prevent apartment owners and managers from adopting smoke-free policies.” The recent amendment to the law (noted above) encourages building owners to adopt fully-smoke-free premises, though does not require it. NYC Smoke-Free, a division of NYC Public Health Solutions, launched a Smoke-Free Housing Campaign in 2009, toward a smoke-free NYC which “has worked with buildings, landlords and property managers to implement smoke-free protections for over 14,000 apartment units, impacting over 38,000 residents.” However, they state that many owners/property managers of those in public or rent-regulated buildings have been the slowest to adopt these policies. This is causing the city’s poorest residents to be more-often subjected to secondhand smoke than other types of residents, so the city is focusing all efforts to encourage this across the board (thus the new law).

HELPFUL INFORMATION

NYC Smoke-Free is a website run by the New York State Department of Health, Bureau of Tobacco Control aimed at being a public solution toward increasing support for a non-smoking New York. It holds a wide selection of legal and other helpful information that you may find useful.

CONCLUSION

New York City’s laws currently discourage smoking in many locations, and recent amendments to the laws are increasing the strength of anti-smoking policies.

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