Fans of the television show Mad Men, set in the mid-1960s, are often shocked by the near-constant presence of smoldering cigarettes in nearly everyone's hands. Indeed, if if you told any of the show's characters that in just a few decades, cities across the nation – including New York and Chicago - would ban smoking not just in office buildings, but also in bars, restaurants, and even public parks, they would have laughed in disbelief.
Of course, we know better – and breathe easier, for the most part. In 2008 the Smoke-Free Illinois Act went into full effect, prohibiting smoking in virtually all public places and workplaces, including offices, theaters, museums, libraries, educational institutions, schools, commercial establishments, enclosed shopping centers and retail stores, restaurants, bars, private clubs and gaming facilities. Last year, the ante was upped by banning smoking in city parks, beaches, public plazas and boardwalks - violators can be fined $500 for lighting up.
Now, in 2012 there is a controversial proposal on deck to ban smoking in private apartments as well. Illinois State Rep. Sara Feigenholtz (D-12th District, Chicago), is one who firmly believes in the ban, and she's backing up her beliefs with proposed legislation. This past January, Feigenholtz, along with fellow Rep. Kelly M. Cassidy (D-14th District, Chicago), introduced a bill that would give Illinois condo associations the legal authority to ban smoking in the private units of multifamily buildings.
The Smoke-free Illinois Act axed smoking in public spaces and in private businesses, but private residences were exempt, since trying to legislate people's behavior in their own homes strikes many – even staunch anti-smokers – as unfair, and possibly even unconstitutional, falling as it does right on the line between public health and private property.
Feigenholtz has heard this argument often, but disagrees. She believes that smoke can travel from a smoker's apartment into other units thus affecting the health of the other residents. “Secondhand smoke can cause health problems ranging from a sore throat to asthma symptoms to lung cancer,” she says. “If a condo resident’s smoking can imperil a neighbor’s health, then condominium associations should be able to impose building smoking restrictions. This legislation will encourage condominium associations to opt-in to existing law and update their bylaws to address resident tobacco use – but it places no mandates or requirements on the associations to do so.”
Under current law, condo associations can include smoking restrictions in their bylaws. Every association has the freedom to decide if they want to ban smoking in unit owner's homes, but Feigenholtz’s legislation, House Bill 4134 would give associations the legal authority to enforce such policies.
Carol Marcou, CMCA, AMS, PCAM, who chairs the Illinois Legislative Action Committee (ILAC), of the Illinois Chapter of the Community Association's Institute, which fully supports this bill, points out that this type of prohibition, which a condominium association may exercise, is already a law in Utah. She adds that, “There may be a trend in the future of other states introducing similar bills due to the adverse affects of second-hand smoke which are imposed on other residents within a condominium association.”
The smoking bill was introduced on January 30th, 2012 and since then has been referred to the Illinois House Judiciary Committee, which gave the bill a green light. It was then referred back to the house on March 27th and referred to the Legislature’s Rules Committee.
What are Associations Doing?
In Chicago, the 1418 N. Lake Shore Drive Condominium Association recently amended its declaration to prohibit smoking in interior common elements, interior limited common elements and inside individual units – unless it is restricted to a single room within that unit that has been equipped with an association-approved, self-contained air-treatment system to contain the smoke.
The amendment was prompted by a desire to create a healthier environment for residents and their guests at the 28-unit high-rise, which was built in 1981, said property manager Paulette Rodriguez, of DK Condo Management in Chicago. "The owners are very health-conscious in this building, and smoking isn't healthy," she says. The association is seeking certification as a "green building" under the Leadership in Energy and Environmental Design (LEED) rating program of the U.S. Green Building Council. It is installing a new humidification system and new energy-efficient elevators, and it recently built a workout facility. The vote to adopt the no-smoking amendment was nearly unanimous.
In many associations however, the smoking ban issue is pitting unit owner against board and fellow unit owner alike.
“Everyone is talking about banning smoking in the building - it's very divisive,” says Michelle Harvath, a board member at the Atrium Condominiums in Chicago. “This issue is a hot button and many owners who often don't get involved in association matters are energized. Many are lobbying their neighbors to choose a position...either for or against a ban.”
For smokers, the issue is one of personal choice and property rights. There has been push-back against bans by pro-smoking organizations such as Citizens Lobbying against Smokers Harassment (CLASH). A recent press release from CLASH founder Audrey Silk underscored the group’s general stance on banning. “Smoking is okay... as an informed adult’s choice,” says Silk. “Once chosen there’s nothing to be ashamed of, nothing to apologize for, and we certainly don’t need anyone’s approval or permission nor to be banished like criminals from view.”
To Ban, or Not to Ban?
If your association is considering a smoking ban, make sure the owners are on board, says Arlington Heights-based attorney Charles Vander Vennet. In 2007 he led a 60-unit condominium association in Winnetka through the process of implementing an amendment that bans smoking anywhere on the property.
He explains that there are two ways to impose a restriction: One is to amend the association's declaration; the other is to pass a rule. If the restriction is challenged in court, one of the judge's considerations will be how reasonable the restriction is. Judges are more inclined to let stand an amendment because it was approved by a super-majority of owners. A rule requires only a board vote. "If the board imposes the restriction, it is entirely possible for the judge to rule that not smoking in an owner's unit is reasonable, but it's not ironclad," says Vander Vennet.
Judges also will consider whether the amendment was adopted properly. That's why it's crucial to consult your governing documents for guidance and procedures. They define your required majority - usually two-thirds or three-quarters of the owners. They might also specify how approval must be given, such as at a meeting or in writing.
"If the documents require action at a meeting, and the board gets a petition-style approval, that's not the appropriate procedure," said Vander Vennet. "If the documents talk about 'approvals on a written instrument,' and 95 percent of the owners just wave their hands 'yes' at a meeting, that's not valid either." Finally, the approved amendment is not effective until it is filed with the county recorder's office, he says.
For a co-op, there are two possible approaches. First, the proprietary leases can be amended, which also requires shareholder vote. Another approach is for a board to adopt a policy moving forward not to approve any purchasers who smoke. This approach will slowly weed out smokers, but it doesn’t address the smokers that are currently living in the building. For those existing smokers who may take issue with amendments that lead to a smoking ban, the minority will have to go along with what the majority has decided.
Residents irritated by drifting smoke or concerned about its impact on their health or the health of their children generally invoke the 'nuisance clause' which is written into all bylaws and proprietary leases. In the 2010 case of Ewen v. Maccherone, a condominium unit took his neighbor to court on the grounds that secondhand smoke was adversely impacting his quality of life. Initially the condo board argued that since smoking was allowed in individual units, the case was without merit. However a judge saw things differently and allowed it to proceed. Another case in California involved a condo that demanded that smoking unit owners pay for the sealing of their own properties; a court decided that was the responsibility of the association, which came at a great cost. You have to be careful what you wish for sometimes.
Smoke-free condos are so new that it is hard to gauge how a ban will impact property values. Rodriguez, who has previous condo sales experience, said she believes smoking bans can be an asset or a detriment. "It all depends on the profile of the building," she says. "We're a small, high-end building, so I don't think it will be a problem for us. When you talk about a new building or a very large building, it's hard enough to get a sale, let alone have restrictions."
Often when a board decides it will broach a difficult issue such as banning smoking, it will look to its management company for advice. Most property managers agree that the best place to start is to convene a special town hall-style meeting to introduce the issue and open a dialogue about the projected benefits and possible ramifications of the policy. It's also a good idea to send a mass email to all residents putting the proposal in writing and getting a conversation started.
While the board and residents are directly impacted by such actions as a ban, so is the management company. Many property managers feel that smoking bans eliminate a number of health claims relating to exposure to second-hand smoke; others foresee significant complaints from current smoking residents who feel their rights are being infringed upon. Being able to properly enforce a ban in units could also become an issue. Unlike nuisances due to water leaks and inadequate floor covering, trying to determine the perpetrator of a smoke-seepage problem, especially in a large building, could be challenging.
A Smoke-Free Future?
With more buildings going smoke free—including new rental buildings with non-smoking lease stipulations—it seems logical that in ten years time, a non-smoking condo building will be as common as a non-smoking bar. For the time being however, the issue continues to evolve, and even seasoned industry pros learning by experience. If your building is interested in investigating the possibility of going smoke-free, the first thing to do is a close read of your governing documents, followed by a conversation with your legal counsel and an open, ongoing dialogue with residents.
J.M. Wilson is a freelance writer and a frequent contributor to The Chicagoland Cooperator. Associate Editor Hannah Fons also contributed to this article.