Bill Morris in Board Operations  For Habitat Magazine

“A number of our cooperative and condominium clients have asked whether they may ban the smoking of marijuana in their buildings, either because they find it bothersome or because they are concerned about the adverse health effects associated with second-hand smoke.” — Legal Alert from the law firm Smith Gambrell Russell.

The first thing co-op and condo boards need to remember is that the Smoke-Free Air Act of 1995 banned smoking in most public places in New York City, including the common areas of multifamily dwellings, such as lobbies, laundry rooms, stairwells, hallways and elevators. So smoking weed in common areas is out.

Local Law 147, adopted in 2017, required owners of multifamily buildings to create a smoking policy and share it with current and future residents — though it stopped short of requiring owners to ban smoking. In the past six years, many co-op and condo boards have amended their governing documents to ban smoking anywhere on the premises, including inside apartments.

But does the recently legalized smoking of marijuana fall under such bans? What if a resident is under doctor’s orders to use medical marijuana? What if the marijuana smoker is a Rastafarian who claims that smoking is a religious ritual? Would banning such people from smoking marijuana in their homes be cause for discrimination complaints?

“Most of the smoking bans our office has drafted are pretty broad,” says Lisa Smith, a partner at Smith Gambrell Russell. “They include the smoking of any substance, including cigarettes, e-cigarettes, cigars, pipes and marijuana. The ban is not saying you can’t practice your religion. It’s just saying smoke cannot emanate from your apartment.”

As for medical marijuana, Smith says: “People have said they need to smoke marijuana to treat a medical condition, such as glaucoma. The point is that they can ingest it in other ways without smoking it — in pill form, drops, edibles. It’s possible to get all sorts of products, from cupcakes to lemonade to candy, with different levels of THC.”

When advising her co-op and condo board clients who are considering instituting a  smoking ban, Smith tries to avoid halfway measures, such as grandfather clauses or allowing smoking on terraces. “A smoking ban has to be all or nothing,” she says. “Otherwise it’s hard to enforce. And you have to be vigilant. In my building, which is nonsmoking, management puts out regular reminders. Lately kids have been smoking marijuana in the stairwells.”

Any smoking ban must be established through an amendment to the governing documents, not merely a house rule. As Smith Gambrell Russell’s Legal Alert states: “Like the use of tobacco, the smoking of marijuana inside apartments…, regardless of whether it can be demonstrated that it leaks into public areas, may be banned by amendment to a cooperative’s proprietary lease or a condominium’s bylaws.”

Some boards don’t stop there. Smith was recently made aware of a fire-fearing condo board that banned the burning of candles and incense inside apartments — and hit violators with a $100 fine. One unit-owner complained that some residents continued to burn candles for Shabbat while she was not allowed to burn incense, a ritual of her Eastern religion. “Just because it’s your religion doesn’t mean that you get to annoy other people,” Smith told The New York Times earlier this year. “You don’t get to do it to the detriment of others.”

But, she adds, that condo board left itself open to a serious legal challenge. “If the board is not going after the people burning candles for Shabbat but bans the burning of incense, they’re treating unit-owners differently. They could get sued for discrimination. That rule banning candles and incense was a crazy rule.”