Can My Building Ban Incense Even if It’s a Religious Ritual?
Q: My Manhattan condo board recently added prohibitions against candles and incense to its no-smoking policy, to reduce odors and fire risk, with fines starting at $100. I practice an Asian religion that incorporates incense in its rituals. When I asked the board for an exemption, I was denied. But I use a high-quality incense, with a subtle odor, and it burns for less than 15 minutes. The restriction feels particularly unfair because I know other residents burn candles for Shabbat. Burning incense is an important part of my religious practice, and the restriction seems unequal and discriminatory. Am I entitled to a religious exemption?
A: Your condo board’s no-smoking policy might be intended to prevent a fire, but it doesn’t make a lot of sense. Are candlelight dinners forbidden? What about birthday candles? Can residents not light a candle during a power outage? Where do the restrictions stop? The list of potential hazards is long, and a board could twist itself into a pretzel writing rules that anticipate each one.
“People overload their sockets at Christmastime. They leave their gas stove on, they put a dish towel next to it. How much are you going to ban?” said Lisa A. Smith, a Manhattan real estate lawyer. “At what point do people just have to be responsible? They have self-interest and self-preservation — they don’t want to burn all their stuff down.”
Your neighbors might be burning Shabbat candles because they never asked the board for permission, and if the candles do not have a strong odor, no one knows. If you light your incense and the board penalizes you on the grounds that you’ve violated this new policy, point out that the rule is not being applied equally among all owners. If they do not relent, then you may have a discrimination claim against them that you could file with the New York City Human Rights Commission, Ms. Smith said.
But, here’s the wrinkle: Incense often has a strong odor that can seep into hallways and through vents to other apartments. And most condo bylaws have a provision prohibiting objectionable odors, separate of any smoking policy. So, if your neighbors complain about the smell or smoke, the board could ask you to stop burning it, pointing to the bylaws. While you are entitled to practice your religion in your apartment, you cannot disturb your neighbors.
“Just because it’s your religion doesn’t mean that you get to annoy other people,” Ms. Smith said. “You don’t get to do it to the detriment of others.”
So if you’re going to light your incense, place a damp towel under the door, open the windows, and maybe run a fan so as not to risk bothering your neighbors and evoking the ire of the board.
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