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).