SUMMARY:
The “Enforcement of No Smoking Policy” adopted by The Philadelphian Owners Association Board on 8/30/23 is profoundly flawed.
The motion creates an instructive roadmap whereby a smoker can deny access each evening while smoking and avoid all fines simply by granting access the following morning after the unit is free of smoke and the cigarette butts are discarded.
It also creates a financial incentive to thwart the inspection because opening the door to a smoky apartment is met with a $500 fine whereas refusing access till the next day when the smoke has cleared gets a ZERO dollar fine, or at worst, a $25 fine if access is granted 25 hours after the offense.
The motion can easily be modified to achieve two objectives: 1) identify the source of what the Board has described as a fire hazard and health hazard, and 2) fine persistent smokers into compliance when refusing real-time access during the smoking investigation.
The solution is to delete motion sections A1, A2, B1 and replace it with the following:
“To identify the source of fire/health hazards, The Philadelphian Owners Association staff may need brief access units in real-time as smoke is detected. Each access refusal, starting with the 4th refusal, MAY be subject to a $500 fine.”
The object of the motion is NOT to set the fine level so low that in the super-unlikely event the matter ends up in court, the judge won’t reduce the fine. Rather, it is to serve as a deterrent to ensure compliance with the no-smoking policy.
In one particular case, a smoker was caught 3 times and paid $2,500 in fines because the smoker opened the door. Had the smoker leveraged the policy adopted by The Philadelphian Owners Association Board, the smoker could have deferred access 24 hours until the smoke had cleared and avoided any fines!
If I were her landlord, I would instruct her NEVER to open the door for the POA.
What kind of policy creates that kind of incentive?
DETAILS:
- Note the proposed phrase: “MAY be subject to a $500 fine” contains extremely flexible language which enables management to apply discretion and common sense to its application.
- Fines starting after 3 refusals achieves the apparent objective of the “3 days” written into the initial version without creating the problems described below. Staff would simply leave written notice at the door for each refusal. Three refusals / three days. Notice problem solved! It also gives innocent residents 3 passes if the inspection occurs at an inconvenient time.
ADDITIONAL PROBLEMS WITH THE MOTION AS WRITTEN:
- Section A1 of the motion states: if an occupant “is suspected of smoking”. When a complaint is initially received, there is no suspect; there is simply a range of nearby units that need to be inspected. Because of weather-stripping around the door, smoke cannot always be identified from the hallway. A smoker could cite the motion as passed motion to claim there is no “probable cause” to inspect the unit because smoke cannot be smelled from the hallway.
- The use of “AND” for two conditions in the definition of “refusal” makes no sense:
“failure to respond within three (3) days of any written request for entry into a Unit by the Association; and two direct refusals by the Unit Owner or Tenant to grant the Association access to the Unit.”:
The following examples do not meet the definition above:
- Resident allows inspection 2 days after initially requested, but then responds five times with: “go aways – I’m not opening the door”.
- Resident smoke every evening and always allows access the next morning after the smoke has cleared.
CONCLUSION:
The Philadelphian Owners Association Board’s primary duty is to protect the safety of its 1,200 residents. Of course, it also has an obligation to protect the legal and financial well being of the Association.
The Amended & Restated Smoking Resolution of The Philadelphia Owners Association (2015 & 2018) have correctly declared smoking to be a fire risk. According to data from the United States Fire Administration (USFA), cigarettes are the leading cause of fatal fires in the United States.
Failure to swiftly and competently address known fire hazards jeopardizes resident safety and creates an unnecessary liability for the Association, much greater than a smoker suing for getting fined too much.
