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Is It Time To Prohibit Smoking? Within Condominium or Cooperative Apartment Units

 There is little or no question that secondhand smoke is a carcinogen which poses  a serious cancer risk and can cause other health problems to persons who are  exposed to it. Indeed the 2010 U.S. Surgeon General’s report states unequivocally that “The debate is over, the science is clear, there is no safe level of exposure to  second hand smoke.” Moreover, HUD has expressly encouraged all HUD funded and subsidized properties  to adopt smoke free policies.  

 Over six years ago, the New Jersey Legislature enacted the “New Jersey Smoke Free Air Act” which prohibits smoking in indoor public places, which includes apartment  building lobbies or other public areas in an otherwise private building;  however, this Act does not apply to individual apartment units. Moreover, the Act supersedes any other statute, municipal ordinance and rules or  regulations adopted pursuant to law concerning smoking in an indoor public  place, subject to limited exceptions. However, it does not expressly preempt private restrictions or rules and  regulations of community associations.  

 The Time is Now

 In view of the foregoing, perhaps the time has come for every condominium and  cooperative board to address the problems caused by second hand smoke seeping  from individual apartments into and permeating other units and common areas.  

 While there may be one or more physical remedies for this problem such as (i)  the installation of smoke eaters in the smoker’s apartment, (ii) the upgrading of the common ventilating systems, (iii) the  sealing of fugitive air pathways in the walls of the building, etc., it may be  more practical and economical to consider the elimination of a second hand  smoke problem by enforcement of private nuisance restrictions in the governing  documents and/or the amendment of same to expressly prohibit smoking in  individual units (perhaps with a grandfather clause for existing smokers in  order to obtain their vote).  

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