Q&A: Dealing With a Neighbor’s Unwanted Smoking

Q. I live on first floor apartment in a co-op building. Next to the building is a bakery and the owner and his employees smoke all the time in front of my windows .The smoke is coming in my house (I have to paint one of the wall got dark from cigarettes). I spoke with the owner and his answer was that he is entitled to smoke because he lives in the same co-op with me! The board never answer to my complaints. What will happen if I call 311? 

                       —Frustrated and Fed-Up

A. “A 311 operator will file a complaint with the Department of Health and Mental Hygiene (“Department of Health”),” says attorney Matthew Maline of the New York City-based firm Barry Mallin & Associates, P.C. “The Department of Health has broad powers to abate a nuisance, defined as “whatever is dangerous to human life or detrimental to health.” (NYC Admin Code 17-142) It can fine not only the person or entity directly causing the nuisance, but also all “interested” parties.

 “Second-hand smoke is a serious health hazard and is considered a nuisance. In 2006, the U.S. Attorney General issued a report concluding that second hand smoke is almost as dangerous as smoking itself (www.surgeongeneral.gov/library/secondhandsmoke/report/executivesummary.pdf). Although not prohibiting smoking on all outdoor sidewalks, the New York City Smoke-Free Air Act, passed in 2002, prohibits smoking in almost all indoor places and several particular outdoor places.

“The Department of Health takes anonymous 311 complaints seriously. In 2008, tipped off by an anonymous 311 complaint, the Department of Health fined a Queens resident for feeding too many pigeons in his back yard. (www.gothamist.com/2008/03/20/city_fines_man.php, and www.nytimes.com/2008/12/19/nyregion/19pigeon.html). This shows nearly any activity that can have adverse health consequences for neighbors can lead to a nuisance violation.

 “The questioner should call 311 and report the situation. He or she should be ready to provide the address of the bakery and the dates and times people smoke outside. Although anonymous complaints are sometimes effective, it would probably be best in this situation if the Department of Health can inspect the conditions inside the apartment.”

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