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Tips for Property Association Considering Property-Wide Smoking Ban

August 12, 2015 Posted in Community Association Law

For decades, there has been no shortage of conclusive scientific proof connecting the practice of smoking with widespread health problems. Issues ranging from skin maladies to deadly cancer can be traced to the harmful cocktail of chemicals found in cigarettes, and these afflictions are not limited to the smoker himself.

Most recently, the lethal effects of second- and third-hand smoke have become more understood, prompting bars, restaurants, and other publicly-accommodating establishments to ban the practice all together.

However, associations considering a building-wide smoking ban may be in for a serious uphill legal battle, as there are a number of factors to consider aside from the obvious health benefits of this type of prohibition.

In some scenarios, initiating a building-wide smoking ban might not exactly bode well for those who purchased their property with the understanding that smoking is permitted. Moreover, unit owners may advance a (potentially successful) argument against the retroactive application of a smoking ban since the covenant was not included within the deed restrictions at the time of purchase.

Nonetheless, successful smoking bans have been implemented in the past, and associations dedicated to the cause certainly have the option to at least try and convince the residents that this is a positive, healthy step for the condominium as a whole.

Implementing a New Policy

A smoking ban will require an amendment to the condominium bylaws – which will of course mandate the applicable due process procedures. The first step in the process will be to draft an exhaustive anti-smoking policy for inclusion into the bylaws, which can be accomplished with the help of an experienced condominium association lawyer.

A well-drafted policy should address the following with particularity:

 What is included in the definition of “smoking?” Does it include pipes, cigars, or hookahs? Or is the definition limited to cigarettes only?
 Are there exceptions for rooftop owners or rooftop social gatherings?
 How does the ban apply in common areas, including outdoor pools or seating areas?
 How will the policy be advertised? Will the board require funding to ensure ambiguous signage is posted?
 What are the penalties for violating the policy? What if the violator is a guest?

From there, the condo association must arrange for the proper passage of an amendment as set forth in the bylaws – which will generally require notification of the proposed change and an opportunity for all unit owners to vote on the change.

In order for the building-wide ban to take effect, the amendment must be passed with at least the minimum percentage required of votes set forth in the bylaws, followed by the official recordation of the Amendment in order to ensure future owners are properly notified of the policies.

Contact a Reputable New Jersey and New York Condo Association Lawyer Today!

Smoking bans can be a highly-controversial notion, and may even lead to litigation between the association and discontented residents. If your association is interested in pursuing this option, we encourage you to contact our office right away for guidance and clarification on the best way to approach this issue: New York - (212) 374-9790; East Brunswick - (732) 514-6601; Randolph, New Jersey - (973) 366-1188.

 

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