Building Smoking Policies New York City’s Local Law 147:
The new New York City’s Local Law 147 requires all residential buildings with three or more units, including rental buildings, cooperatives and condominiums, to adopt a written smoking policy - no later than August 28, 2018.
Disclosure Requirements Regarding Building Smoking Policies Pursuant to Local Law 147:
The New York State Department of Law (“DOL”) publishes this memorandum as a guidance document
Pursuant to State Administrative Procedure Act § 102(14).
1. INTRODUCTION
On August 28, 2017, New York City Mayor Bill De Blasio signed Local Law 147,1 which goes into effect on August 28, 2018. Local Law 147 amends the Administrative Code of the City of New York (“NYC Administrative Code”) to require that all class A multiple dwellings—i.e., buildings with three or more residential dwelling units—adopt a written smoking policy for the building that is disclosed to all residents and incorporated into all leases, purchase agreements, and building governing documents. Local Law 147 does not dictate the contents of a building’s smoking policy.
As such, Local Law 147 affects most condominiums and cooperative apartment corporations (“cooperatives”) located in New York City. This guidance document clarifies how Local Law 147 affects DOL disclosure requirements for sponsors of condominiums and cooperatives located in New York City with three or more residential dwelling units or apartments.2 Solely for the purposes of this guidance document, the terms condominium” and “cooperative” shall refer only to condominiums and cooperatives located in New York City with three or more residential dwelling units or apartments.
2. LOCAL LAW 147
Pursuant to Local Law 147, the owner(s) of each building in New York City with three or more residential dwelling units must establish a written smoking policy for the building no later than August 28, 2018. In the context of condominiums or cooperatives, Local Law 147 defines “owner” as the board of managers or board of directors, respectively. NYC Administrative Code § 17-506.1. The building’s smoking policy must address all indoor locations of the premises, including common areas and dwelling units, as well as all outdoor areas of the premises, including common courtyards, rooftops, balconies and patios and any outdoor areas connected to the dwelling units. The building’s smoking policy must apply to all its tenants,3 shareholders, and/or unit owners and their invitees as well as other persons on the premises. NYC Administrative Code § 17-506.1(a)(2). A copy of the building’s smoking policy must be posted in a prominent location and/or provided to all tenants, shareholders, and/or unit owners. The building’s smoking policy also must be incorporated into any agreement to rent or purchase a dwelling unit, including a dwelling unit in a condominium or shares in a cooperative. Finally, the building’s smoking policy must be incorporated into the bylaws or rules of the condominium or cooperative. NYC Administrative Code §§ 17-506.1(b)(2)-(5). Failure by owners to adopt and disclose the building’s smoking policy could result in civil penalties assessed by one of several New York City agencies. In addition, failure of any tenant-shareholder, condominium unit owner, or tenant who rents or leases a dwelling unit to another person to disclose the building’s smoking policy could result in civil penalties. NYC Administrative Code § 17-508(e).
3. CURRENT RESIDENTIAL SMOKING LAW IN NEW YORK CITY
The current law governing smoking in class A multiple dwellings in New York City is the Smoke-Free Air Act (“SFAA”). As of the date of this guidance document, SFAA prohibits smoking or using electronic cigarettes in common indoor areas of buildings with three or more residential dwelling units. SFAA does not prohibit smoking in private units or apartments or other private residences (except in areas where child day care centers or health care facilities operate and are open or employees are working). Owners of residential buildings are responsible for all violations reported concerning the SFAA and may incur penalties if they fail to comply with SFAA. NYC Administrative Code § 17-505.
Local Law 147 does not change the requirements of SFAA. Thus, a building cannot adopt a smoking policy permitting smoking in indoor common areas, lest the owners be in violation of SFAA.
4. DOL DISCLOSURE REQUIREMENTS REGARDING THE SMOKING POLICY An offering plan must afford potential purchasers an “adequate basis upon which to found their judgment and shall not omit any material fact.” New York General Business Law (“GBL”) § 352- e(1)(b). To provide prospective purchasers and contract vendees with “complete, current, and accurate” information regarding their purchase and be in compliance with Local Law 147, sponsors of condominiums and/or cooperatives must disclose the building’s smoking policy in the offering plan or an amendment thereto, as applicable. 13 NYCRR Parts 18.1(b)(1); 20.1(b)(1); 21.1(b)(1); and 23.1(b)(1). The DOL will deem most changes to a condominium or cooperative’s existing written smoking policy, or the adoption of a new smoking policy where there was no previously disclosed written smoking policy, to be a change in fact or circumstances that is sufficiently material to necessitate an amendment to an offering plan in which the updated or new smoking policy is disclosed. See 13 NYCRR Parts 18.5(a)(1), (2); 20.5(a)(1), (2); 21.5(a)(3), (4); and 23.5(a)(1), (2). The smoking policy disclosure in the offering plan and/or amendment must address all indoor locations of the premises, including common areas and dwelling units, as well as all outdoor areas of the premises, including common courtyards, rooftops, balconies and patios and any outdoor areas connected to the dwelling units.4 The disclosure must be included in the Special Risks and Rights and Obligations of Unit Owners sections of the offering plan. Additionally, the building’s smoking policy must be incorporated into the interim lease (if applicable), purchase agreement, and bylaws or rules that are included in Part II of the offering plan pursuant to DOL regulations.
5. PROCEDURE FOR DISCLOSURE OF THE SMOKING POLICY IN OFERING PLANS AND AMENDMENTS Effective August 29, 2018, the DOL will require sponsors of the following categories of condominium and cooperative offering plans to adhere to the specific procedures for disclosing the building’s smoking policy described herein……….
6. CHANGES TO THE SMOKING POLICY As discussed in section 4 of this guidance document, most changes to a condominium or cooperative’s existing written smoking policy, or the adoption of a new smoking policy where there was no previously disclosed written smoking policy, are changes in fact or circumstances that are sufficiently material to necessitate an amendment to an offering plan in which the updated or new smoking policy is disclosed. See 13 NYCRR Parts 18.5(a)(1), (2); 20.5(a)(1), (2); 21.5(a)(3), (4); and 23.5(a)(1), (2). Furthermore, a material and adverse change to a condominium or cooperative’s existing smoking policy, or the adoption of a new smoking policy where there was no previously disclosed written smoking policy, may trigger a right of rescission for contract vendees. See 13 NYCRR Parts 18.5(a)(5); 20.5(a)(5); 21.5(a)(5); and 23.5(a)(5). However, the DOL will not require sponsors to offer contract vendees a right of rescission due to a change in the smoking policy in the following scenarios: The condominium or cooperative did not have a previously disclosed written smoking policy, but
· the newly adopted smoking policy substantially mirrors SFAA (i.e., smoking is prohibited in all common areas, but not prohibited in most individual residences); The condominium or cooperative’s current smoking policy was disclosed to the contract vendee
· prior to executing the purchase agreement; The condominium or cooperative had a previously disclosed written smoking policy and such
· smoking policy has changed, but the change is not material and adverse.
All other material and adverse changes to a condominium or cooperative’s smoking policy while a contract vendee’s contract is still executory will require the sponsor to provide all such contract vendees with a right of rescission and a reasonable period of time that is not less than fifteen (15) days after the date of presentation to exercise the right of rescission. See 13 NYCRR Parts 18.5(a)(5); 20.5(a)(5); 21.5(a)(5); and 23.5(a)(5).
Although Local Law 147 does not require purchase agreements signed prior to August 29, 2018 to disclose the building’s smoking policy, the building’s smoking policy created pursuant to Local Law 147 will be binding on purchasers who signed purchase agreements prior to August 29, 2018. Therefore, the enactment of a material and adverse change to a building’s smoking policy, or the adoption of a new smoking policy pursuant to Local Law 147 where there was no previously disclosed written smoking policy, may trigger a right of rescission for any contract vendee who executed a purchase agreement prior to August 29, 2018 if such purchase agreement remains executory and the contract vendee did not receive written notice of the building’s smoking policy prior to executing the purchase agreement.
7. FAILURE TO DISCLOSE OR ADEQUATELY DISCLOSE THE SMOKING POLICY OR CHANGES TO THE SMOKING POLICY The DOL reserves the right to reject offering plans and amendments thereto that fail to comply with this guidance document and all other applicable laws and regulations. Additionally, the Attorney General has the authority under Article 23-A of the GBL to investigate and strictly enforce violations of the statutes and regulations governing disclosure requirements. Nothing contained in this guidance document shall be construed to be a waiver of or a limitation on the Attorney General’s authority to take enforcement action pursuant to Article 23-A of the GBL and other applicable provisions of law, except as expressly stated herein.
To amend the administrative code of the city of New York, in relation to disclosure of smoking policies for class A multiple dwellings Be it enacted by the Council as follows:
Section 1. Section 17-502 of the administrative code of the city of New York is amended by adding six new subdivisions tt, uu, vv, ww, xx, and yy to read as follows: tt. “Class A multiple dwelling” means a class A multiple dwelling as such term is defined in paragraph eight of subdivision a of section 27-2004. uu. “Smoking policy” means a written declaration that states in a clear and conspicuous fashion where smoking is permitted or prohibited on the premises of a class A multiple dwelling. vv. “Owner of a class A multiple dwelling” means the following:
(i) In the case of a building with one or more rental dwelling units, other than rental dwelling units in a condominium or a cooperative apartment corporation, the owner of record.
(ii) In the case of a condominium, including a rental dwelling unit in a condominium, the board of managers.
(iii) In the case of a cooperative apartment corporation, including a rental dwelling unit in a cooperative apartment corporation, the board of directors. 2 ww. “Condominium unit owner” means the person or persons owning a dwelling unit in a condominium building. xx. “Tenant” means a tenant, tenant-shareholder of a cooperative apartment corporation, condominium unit owner, subtenant, lessee, sublessee or other person entitled to the possession or to the use or occupancy of a dwelling unit, when the term “tenant” is used in reference to a dwelling unit in a class A multiple dwelling. yy. “Tenant-shareholder” means the person who owns stock of a cooperative apartment corporation.
§ 2. Title 17 of the administrative code of the city of New York is amended by adding a new section 17-506.1 to read as follows: § 17-506.1 Obligation of owners of class A multiple dwellings to adopt and disclose a smoking policy. a. Adoption of smoking policy.
1. The owner of a class A multiple dwelling shall adopt a smoking policy.
2. The smoking policy shall address all indoor locations of the class A multiple dwelling, including common areas and dwelling units, and all outdoor areas of the premises, including common courtyards, rooftops, balconies, and patios, and any outdoor areas connected to dwelling units.
3. The smoking policy shall apply to tenants, including invitees of tenants, and any other person on the premises.
4. The smoking policy or any material changes thereto shall not be binding on a tenant renting or leasing a dwelling unit during the term of the lease, sublease, or other rental agreement in effect 3 at the time of the adoption of such smoking policy or of any material changes thereto, unless otherwise provided in such lease, sublease, or other rental agreement.
5. The smoking policy or any material changes thereto shall not be binding on any tenant in occupancy of a rent controlled or rent stabilized dwelling unit prior to the adoption of the initial smoking policy required by this section or on any family member who succeeds to the rights of such tenant, as required by subdivision 4 of section 14 of the public housing law. b. Disclosure of smoking policy.
1. Upon adoption of a smoking policy, the owner of a class A multiple dwelling shall provide a copy of the building’s smoking policy to all tenants or post, in a prominent location within such dwelling, a copy of the building’s smoking policy.
2. Except as provided in paragraph 3 of this subdivision, the owner of a class A multiple dwelling shall incorporate the building’s smoking policy into any agreement to rent or lease a dwelling unit in such building.
3. In a condominium or cooperative apartment corporation, the condominium unit owner or tenant-shareholder of a cooperative apartment corporation shall incorporate the building’s smoking policy into any agreement to rent or purchase the dwelling unit or shares in the cooperative apartment corporation.
4. In a condominium, the board of managers shall incorporate the building’s smoking policy into the condominium bylaws or rules. 5. In a cooperative apartment corporation, the board of directors shall incorporate the building’s smoking policy into the bylaws or rules of the cooperative apartment corporation. 6. A tenant who is renting or leasing a dwelling unit shall incorporate the building’s smoking policy into any agreement to rent or lease the dwelling unit to a subtenant or sublessee.
4 7. Annual disclosure of the smoking policy. On an annual basis, the owner of a class A multiple dwelling shall provide a copy of the building’s smoking policy to all tenants or post, in a prominent location within such dwelling, a copy of the building’s smoking policy. c. Notification of a material change to smoking policy. The owner of a class A multiple dwelling shall provide notification in writing to all tenants of any material change to the smoking policy or post, in a prominent location within such dwelling, any material change to the smoking policy. d. Document retention. The owner of a class A multiple dwelling shall make available for inspection by the department copies of the following:
1. the disclosure required by paragraph 1 of subdivision b of this section, or the annual disclosure required by paragraph 7 of subdivision b of this section, for the current year; and
2. each notification of a material change made within the past year pursuant to subdivision c of this section. § 3. Section 17-508 of the administrative code of the city of New York is amended by adding new subdivisions d-1 and d-2 to read as follows: d-1.
It shall be unlawful for any owner of a class A multiple dwelling to fail to: 1. adopt a smoking policy as required by subdivision a of section 17-506.1; 2. disclose such policy as required by subdivision b of such section; 3. provide notification of a material change to such policy as required by subdivision c of such section; or 4. make available copies of such policy as required by subdivision d of such section. 5 d-2. It shall be unlawful for any tenant-shareholder, condominium unit owner, or tenant who rents or leases a dwelling unit to another person to fail to disclose a smoking policy as required by paragraph 3 or 6 of subdivision b of section 17-506.1. § 4. Subdivisions e, f, and i of section 17-508 of the administrative code of the city of New York, subdivisions e and f as amended by local law number 152 for the year 2013, and subdivision i as amended by local law number 11 for the year 2011, are amended to read as follows: e. Every person who violates subdivisions a or b of this section shall, for a first violation thereof, be liable for a civil penalty of not less than two hundred dollars nor more than four hundred dollars; for a second violation, both of which were committed within a period of twelve months, be liable for a civil penalty of not less than five hundred dollars nor more than one thousand dollars; and for a third or subsequent violation, all of which were committed within a period of twelve months, be liable for a civil penalty of not less than one thousand dollars nor more than two thousand dollars. Every person who violates subdivision d of this section shall be liable for a civil penalty of one hundred dollars for each violation, except that every person who violates subdivision d of this section by smoking, or using an electronic cigarette, in a pedestrian plaza as prohibited by paragraph seven of subdivision c of section 17-503 or in a park or other property under the jurisdiction of the department of parks and recreation as prohibited by paragraph three of subdivision d of section 17-503 shall be liable for a civil penalty of fifty dollars for each violation. Every owner of a class A multiple dwelling who violates subdivision d-1 of this section, and every tenant-shareholder, condominium unit owner and tenant who violates subdivision d-2 of this section, shall be liable for a civil penalty of one hundred dollars for each violation, provided that a violation of paragraph two, three or four of subdivision d-1 shall be considered a single violation 6 regardless of whether such owner failed to disclose a smoking policy, to provide notification of adoption of such policy or a material change to such policy, or to make available copies of such policy to more than one person. f. A proceeding to recover any civil penalty authorized pursuant to the provisions of subdivision e of this section shall be commenced by the service of a notice of violation which shall be returnable to the [administrative tribunal established by the board of health] office of administrative trials and hearings, acting pursuant to section 558 and subdivision 2 of section 1048 of the charter, except that a proceeding to recover a civil penalty authorized pursuant to subdivision e for violation of subdivision d by smoking, or using an electronic cigarette, in a pedestrian plaza or in a park or other property under the jurisdiction of the department of parks and recreation, as prohibited by paragraph seven of subdivision c and by paragraph three of subdivision d of section 17-503 respectively, shall be commenced by the service of a notice of violation which shall be returnable to the environmental control board. The [board of health's administrative tribunal and the environmental control board] office of administrative trials and hearings, acting pursuant to section 558 and subdivision 2 of section 1048 of the charter, or acting pursuant to section 1049-a of the charter, shall have the power to impose the civil penalties prescribed by subdivision e of this section. i. In any proceeding before the [administrative tribunal established by the board of health or the environmental control board,] office of administrative trials and hearings, acting pursuant to subdivision g of this section, if [the tribunal] such office finds that the department or other agency issuing the notice of violation has failed to prove the violation charged, it shall notify the 7 department or other agency issuing the notice of violation, and the order requiring the respondent to correct the condition constituting the violation shall be deemed to be revoked. § 5. Section 17-513.2 of the administrative code of the city of New York, as amended by local law number 42 for the year 2016, is amended to read as follows: §17-513.2 Construction. a. The provisions of this chapter shall not be interpreted or construed to permit smoking, using electronic cigarettes, or using smokeless tobacco where it is prohibited or otherwise restricted by other applicable laws, rules or regulations. b. Class A multiple dwelling smoking policy requirement. The civil penalty provided in subdivision e of section 17-508 shall be the sole remedy for violation of subdivision d-1 or d-2 of such section. § 6. This local law takes effect 365 days after it becomes law.