New Jersey, along with many other states, has adopted a Smoke-Free Air Act (the “Act”) that bans smoking tobacco or electronic cigarettes in the workplace and in indoor public places. Most people are aware that this ban extends to restaurants and stores, but the definition of “indoor public place” also includes an “apartment building lobby or other public area in an otherwise private building.” (N.J.S.A. 26:3D-57). Most agree that this definition includes common areas in condominium associations and cooperatives, but banning smoking in common areas is not where the challenge of creating a smoke-free community lies.

Even though a board may ban smoking in common areas, such rules do nothing to stop secondhand smoke in units from filtering into a non-smoker’s unit. This can become a critical quality of life and health issue for the non-smoker next door. According to the Centers for Disease Control and Prevention (CDC), “There is no risk-free level of exposure to secondhand smoke.”[i] The CDC goes on to note that research has shown that exposure to secondhand smoke increases the risk of heart disease, lung cancer, Sudden Infant Death Syndrome (SIDS) and numerous other health risks, especially for children. In other words, secondhand smoke is more than just a nuisance.

The only way to completely eliminate secondhand smoke from homeowners’ living spaces in a condominium or cooperative association is to ban smoking within the units themselves.

Banning Smoking Within Units.

Although, there are no published cases in New Jersey on the enforceability of banning smoking within condominium or cooperative units, case law around the country suggests that the trend is toward upholding these types of smoking restrictions. However, since few boards have the power to establish these rules on their own, the most effective way to enact a rule that bans smoking within units is to amend the association’s bylaws in a condo association or the proprietary lease in a cooperative.

Since the amendment process requires a membership vote, there is an additional benefit – greater acceptance by homeowners, even those that did not vote for the amendment. When a person buys into a condominium or cooperative association, they know – or should know – that the membership is empowered to change the rules. For most people, a change made through a vote of the membership is easier to accept than the vote of a few board members.

Enforcement of Smoking Bans

The biggest obstacle to creating a smoke-free community is enforcing a smoking ban. While voluntary compliance would be a nice fairytale ending to the implementation of such a rule, it is unlikely. Also, boards should remember that the real goal in passing a smoking ban is not to run people’s lives and turn their homes into boot camps. The goal is to protect residents and owners who are concerned about the health effects of secondhand smoke. Focusing on this “goal” is important, as it should guide an association’s enforcement efforts and help them to steer clear of witch hunts for smokers.

Before issuing a violation notice for smoking, there needs to be an eyewitness or “nosewitness” to the smoking. This person should be required to file a complaint that is submitted to the association’s ADR process. If ADR and fines do not result in compliance, an association may choose to sue a smoker.

Although lawsuits are often time consuming and expensive, a case to enforce a smoking ban will likely be a good candidate for a relatively quick summary judgment motion, unless the defendant alleges that s/he does not smoke in their unit.

The best way to enforce any rule is to encourage voluntary compliance. Providing convenient locations for smokers outside of residential building(s) is one option that can help encourage compliance and reduce litter from discarded cigarette butts. These locations could range from a simple smoker’s stand, to actual covered areas away from doors and windows of residential buildings. Designating certain areas for smoking also shows the membership that the association is concerned about all members’ ability to use and enjoy their homes, as long as it does not endanger the health, safety or welfare of other owners or residents.