Q: I live in a condo building in New York City that is next to an elementary school. I understand that city and state smoking laws require a 100-foot smoke-free perimeter around school entrances. This would include the sidewalk in front of my building for at least 25 feet in both directions from our entrance. A board member and their spouse, in spite of complaints from multiple residents and the no-smoking signs posted by the city health department, regularly smoke directly in front of our entry. The smoke drifts into the lobby when the doors are open. What can we do?
A: It’s true that state law prohibits smoking and vaping within 100 feet of entrances, exits and outdoor areas at elementary and secondary schools.
However, the law makes an exemption for residential buildings, said Vonetta Dudley, director of NYC Smoke-Free at Public Health Solutions, a nonprofit organization. So the question of where the smoking is taking place could be important: Is it on the public sidewalk, or on private property?
It sounds like you or another resident have called in complaints to 311, as you have a “no smoking” sign from the city Health Department. It’s worth calling again and enlisting neighbors to do so when they suspect that a smoker is in violation of the law. The Health Department can conduct an inspection and send warning letters to businesses and residences. Multiple reports of violations at the same location can result in fines or other penalties.
Your building can also adopt a policy to prohibit smoking in its outdoor spaces, if it hasn’t done so already. If the building has three or more units, it must have a smoking policy that governs indoor and outdoor spaces. Are these smokers violating it? If so, you should alert your board, which could impose fines. If not, you and your neighbors can urge the board to change the policy.
City law prohibits smoking in indoor common areas of buildings, though it’s not clear if a secondhand smoke case can be made in your situation. But there are other avenues. The smoking could create a violation of the housing maintenance code if the smoke interferes with the peaceful living of residents, or it could create a nuisance case, both of which could be brought in State Supreme Court, said Adam Leitman Bailey, a real estate attorney. Start by checking the board’s policies and writing a letter to the board about the drifting smoke.
“Court will work, but it’s expensive,” Mr. Bailey said. “Even when buildings can afford it, why waste your money when there are other methods that are less expensive?”
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