Introduction:  The Smoke-free trend has swept into multi-unit housing in recent years as landlords, condominium owners and housing authorities have discovered the numerous health and financial benefits of smoke-free multi-unit housing.

The rising popularity of smoke-free policies for subsidized or affordable units has led to the need for research into the legal and procedural aspects of adopting and implementing such policies.

Background and Facts:

• According to HUD statistics, more than ½ (54%) of public housing residents are either children or elderly residents over age 62. These populations are especially vulnerable to the effects of secondhand smoke.
• Additionally, according to date from Boston’s 2005 Respiratory Health of Public Housing Residents survey, a disproportionate number of smokers live in public versus private housing, as well as a higher percentage of adults with asthma.
• The special vulnerability of a substantial number of residents of low income housing makes the case for smoke-free housing even more compelling.

Cost Saving Measures:

While not a good public health policy measure, it also benefits the bottom line of a housing development.

Cigarette smoking is the lead cause of fires in multi-unit buildings.

There are also significant savings on cleaning costs and building maintenance for non-smoking developments. Data collected in 2009 from housing authorities and subsidized housing facilities in New England indicated that the cost of rehabilitating a unit was more than double for a light smoker ($1,810) vs. a non-smoker ($560).  While the costs of rehabilitating the unit of a heavy smoker was nearly $3,000 or more.

Last, improved air quality reduces the load on heating and air conditioning equipment thus reducing operating costs.

The Rights of Smokers:

One of the biggest reasons why many apartment complexes have not adopted non-smoking policies is because of a mistaken belief that restricting a resident’s ability to smoke violates the law.

·      There is no “Right to Smoke”

·      The U.S. and State Constitutions do not protect smokers as a protected class-numerous State and Federal Courts have consistently ruled this way as well.

·      The Court in Axelord v. Fagan for example, even went as far as stating: “There is no more a fundamental right to smoke cigarettes than there is to shoot up heroin or snort cocaine or run a red light.”

·      In fact, complexes can actually reduce their legal liability by restricting or banning smoking.

How to Implement Changes to Ban Smoking:

A September 15, 2010 memo sent by David H. Stevens, Assistant Secretary for Housing-Federal Housing Commissioner sets up the procedure for implementing smoke-free housing policy.  The highlights of the letter include:

·      Owners and Management Agents choosing to implement a smoke-free housing policy must update their House Rules and Policies and Procedures, as applicable, to incorporate the changes.

·      The policies must be in accordance with state and local laws.

·      The policies must address smoking in, units, common areas, playground areas, areas near any windows or doors and any areas outside the units.

·      The policies must designate specific smoking areas and identify them with clear signage, unless the owners and/or management agents designate the development as totally smoke-free.

The following must be considered, as policies must also not discriminate against individuals who do smoke:

·      The policies must NOT deny occupancy to an individual who smokes.

·      You cannot ask at the time of application or the time of recertification whether or not an individual smokes or if any member of their family smokes.  However, you must inform applicants at the time of application that the building is smoke-free.

·      You cannot maintain smoking vs non-smoking waiting lists.

·      You cannot require occupants to move out of the property or transfer to another property if they are smokers.

You are not required to “grandfather” in tenants who currently smoke, however you are able to do so.  Such policies must be clearly defined.

Update to the 2010 HUD Memo on Smoke-Free Housing Policies:

In October, 2012 HUD sent an update to the 2010 memo by David H. Stevens, Assistant Secretary for Housing-Federal Housing Commissioner.  The updated memo was a reiteration of the previous memo and stated that HUD was still encouraging Landlords to adopt smoke-free policies for their developments. 

However, the 2012 memo did deal with grandfathering as well as designated non-smoking areas.  The memo stated that Landlords are NOT required to grandfather current tenants into the smoke-free house rule but that they may do so.  HUD simply recommends that the policies be clearly defined such as whether the grandfathered tenants are allowed to smoke in their units.  The memo also states that Landlords may establish smoke-free areas.  This may be done in the form of a smoke-free floor, wing, building or even just a unit. 

New Admissions:

·      You must simply provide new admissions with copies of the House Rules that have the smoking policy in them.

Existing Tenants:

·  The amendments to the House Rules must be provided to existing tenants 30 days prior to implementation. You should forward a copy of the revised House Rules to them to implement this.  Note, for tenants who have not yet completed their initial lease term, you must provide them with a 60 day notice prior to the end of the lease term of the change in House Rules.

Penalties for Violations of the Policy:

Repeated violations of the non-smoking policy may be considered material noncompliance with the lease and may result in termination of the tenancy.