To Ban or Not to Ban? Where There's Smoke There's Controversy

To Ban or Not to Ban?

 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.  

 Butts Out

 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."  

 Managing Bans

 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.  

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  • I liked this article because it ends by recommending "an open, ongoing dialogue with residents" to find solutions for the smoking issue that are good for everybody, even the smokers. If the smokers see you are equally interested in their needs, they will cooperate with the ban and support it and abide by it. If they think they're being attacked, they will oppose it and possibly find ways to defeat it or subvert it later. The preferred outcome can be assured by holding a community-wide meeting on the smoking issue in which a facilitator uses the Consensus Based Approach to get 99 percent of the owners on board. Read "Breaking Roberts Rules: The New Way to Run your Meeting, Build Consensus, and Get Results" co-authored by MIT professor Lawrence Susskind.
  • I have this very problem in my beautiful condo that I've lived in for 20 years. My neighbor downstairs moved out and someone new moved in that smokes. I never knew smoking would be an issue because my old neighbor did not smoke. I have a few health issues that are affected by the smoke and I have consulted construction and HVAC techs to seal openings to no avail. The smoke is coming through the "fresh air" returns. How ironic is that? My heart condition has been asymptomatic for years and now it has begun to bother me again from breathing in the smoke. I told my new neighbor that I am having problems, even have a note from my MD, but she says she will do whatever she wants. Even the construction guys said that she should be doing the same thing - sealing her unit. I've read where air purifiers remove the smoke to a great degree - why can't she buy one of them? She came from a single home and thinks this is the same but it is not. My Association says there is nothing they can do but I think it is more a case of them choosing to do nothing. I am a few years from retirement and hoped to stay here until then but I can't live with this. I don't want my health to get worse and not be able to retire at all. If I am forced to move, I will NEVER buy another condo again. Smokers say they have a right to smoke but there is no law, no amendment, no nothing that says so. I would like to think that I have a right to breathe freely and not feel sick all the time because of someone else's addiction.
  • Philadelphia CityView Owner with a smoker's a on Friday, August 7, 2015 12:57 AM
    I agree with every point you've stated, Kathy. I empathize with you because I have been going through a similar living situation. Smokers have no rights. Any smoker who claims otherwise, is incredibly selfish and purposefully blind to it's health consequences (or doesn't care). Every day I smell like an ashtray, and my well kempt condo stinks. No matter what I do, air fresheners everywhere, doesn't help. One of the smokers was actually a visitor, defended my her offensive daughter. I currently don't have severe breathing issues, but they can result from chronic second hand smoke. This other smoker is a chain smoker, and recent. I've owned this place for 10 years now, and for the past 4 months have been forced to live like a smoker. It's invasive, deadly, and indeed a nuisance allowed by my association. Our building has never been smoke free, but I hope more people in my building reach out and push our board to propose something, rather than being idle with zero enthusiasm to take action.
  • Do you breath the air..obviously yes. So you think smoke from cigarettes is a huge problem? Look what's in our air. Do you drive or ride in a car? Get stuck in traffic what do you breathe in? Do you drink water? How "pure" do you think our water is? Priorities, get them straight. The real reason is not health issues it's because you don't like the smell. Quit your cry baby, fit throwing nonsense and go after companies that are polluting our water and air instead of wining about 2nd hand smoke. It just takes time away from what is really killing us.