Rosenberg & Estis, P.C. Newsletter || Volume 5 (Full PDF)
Smoking Policy for Multiple Dwellings – Local Law 147 of 2017
written by: Adam J. Lindenbaum
In August 2017, the New York City Council passed Local Law 147 of 2017 requiring the “owner” of all multiple dwellings in the City of New York to adopt a smoking policy for the public and private areas of each building that covers both indoor and outdoor spaces. The intention of the law was to provide current and prospective residents of a particular building with the ability to make an informed decision about living there given the level of risk of secondhand smoke. The law established a deadline for owners’ compliance for enacting such a policy by August 28, 2018.
The law defines “owner” to include the owner of record of any rental building, the board of managers of a condominium or the board of directors of a cooperative. The policy must be in writing, must be posted in a conspicuous place in the building and must be included as part of any lease, renewal lease or sublease package. In the case of a coop or condo, the policy must be adopted into the house rules or bylaws.
Local Law 147 has provided many New York City owners with an opportunity to reevaluate their existing policies regarding smoking in and around their buildings. Owners still have the option to choose whether or not to allow smoking within residents’ private apartments, as long the policy is properly developed and enforced. In the case of a cooperative or condominium, the policy must be enacted and disseminated in accordance with the bylaws. With respect to rental buildings with rent stabilized or rent controlled tenants, or those rental buildings with unregulated tenants with existing leases with clauses specifically governing the right to smoke, Local Law 147 makes clear that the rights of such existing tenancies cannot be diminished.
Local Law 147 further requires owners to disclose the smoking policy to all tenants on an annual basis by providing a copy to all tenants or posting the policy in a prominent location within the building. Owners are further required to notify tenants in a similar fashion of any material changes to the existing smoking policy. Documentation of compliance must be retained and made available for inspection by the New York City Department of Health demonstrating the policy, the annual disclosure thereof and notification of any material change.
Owners’ failure to timely adopt and/or distribute a smoking policy in accordance with Local Law 147 could result in monetary penalties from the New York City Department of Health not to exceed $100. Local Law 147 does not create a private right of action for tenants to sue building owners for violations of the law. Furthermore, Local Law 147 does not alter the legal rights and remedies that have always been available to owners and tenants and are often invoked in response to annoyances caused by secondhand smoke (e.g., nuisance, breach of the warranty of habitability, breach of lease, etc.).
Although the deadline for compliance has recently passed, many owners have not yet taken action to meet the requirements of Local Law 147. Rosenberg & Estis, P.C. has been working with owners and managing agents to draft smoking policies for a variety of different properties.