How to Adopt Smoke-Free Policies at Your Assisted Site

Since 2009, HUD has strongly encouraged public housing agencies to adopt smoke-free buildings to protect the health of residents, and recently HUD has urged owners of federally assisted multifamily properties to go smoke-free. And you may be considering banning smoking at your site—or in parts of it—to save money and attract responsible residents.

That’s because smoking at apartment sites causes many problems. According to National Fire Protection Association statistics, in 2007, over 140,000 fires were started by cigarettes, cigars, and pipes in the U.S., causing $530 million in property damage. And 25 percent of people killed in smoking-related fires are not the actual smokers, with many being children of the smokers, neighbors, or friends.

Another problem is increased property maintenance costs from cleaning and painting stained walls and ceilings and repairing burn marks left by smoking. Less damage from instituting smoke-free housing policies means less expense to get a unit ready for a new resident.

We’ll tell you about two options for implementing a no-smoking policy at your site. The first option bans smoking at an entire building at the site, including within units in that building. To help you if you choose to do this, we’ve included a Model Lease Clause you can show your attorney and ask HUD to approve. It bans smoking in an entire building, including within units and within 50 feet of the building. The second option bans smoking in common areas of the site only. To help you if you choose to do this, we’ve included a Model House Rule you can add to your site’s house rules.

Legal Issues Related to Smoke-Free Policies

It’s completely legal to go smoke-free, and all smoke-free policies don’t have to look alike. Although HUD is becoming more active in promoting smoke-free policies for the properties it subsidizes, there are currently no federal laws or regulations requiring sites to remain smoking permitted or become smoke free. Also, HUD doesn’t have any regulations that mandate the “grandfathering” of current residents who smoke.

It’s also important to note that smoke-free policies are not discriminatory and can’t be the basis of discrimination claims. The activity of smoking isn’t a protected activity, smokers aren’t a specially protected category of people, and nicotine addiction isn’t a disability. The Constitution and federal and state laws provide some protection to select activities that are considered a fundamental privacy right. But courts have ruled that smoking isn’t a fundamental privacy right, so government and private entities may regulate the activity.

Although policies that control the activity of smoking can be implemented at your site, in federally subsidized properties, rental decisions cannot be made based on an individual’s status as a smoker. A notice HUD issued in October 2012 to encourage the adoption of “Optional Smoke-Free Housing Policies” contained the following guidelines regarding inquiries about a resident’s smoking status:

The owner/agent (O/A) must not have policies that:

• Deny occupancy to any individual who smokes or to any individual who does not smoke who is otherwise eligible for admission.
• Allow the O/A to ask at the time of application or move-in whether the applicant or any members of the applicant’s household smoke. However, if the O/A has established a smoke-free building as of a certain date, the O/A must inform applicants after that date that the building is a totally smoke-free building. The O/A must not maintain smoking or non-smoking specific waiting lists for the property.
• Allow the O/A to ask at the time of recertification whether the tenant or any members of the tenant’s household smoke.
• Require existing tenants, as of the date of the implementation of the smoke-free housing policies, to move out of the property or to transfer from their unit to another unit.

Option #1: Ban Smoking Throughout Entire Building, Including in Units

It isn’t easy to ban smoking throughout an entire building, including within residents’ units. That’s because, to make it stick, you must add a clause to residents’ leases. If implementing a smoke-free policy, remember that your residents must receive adequate notice (30 days or more) of a lease change and that HUD and/or your local housing authority must approve of any changes to the model lease.

Here are three steps you should take if you decide to ban smoking throughout an entire building at your site, including within units and in common areas:

Step #1: Decide which buildings to make smoke-free. If you have several buildings at your site, you can reserve one or more of them for nonsmokers. Before deciding which buildings to make smoke-free, survey your residents on their smoking habits. If there are many smokers in a particular building and few in another, you may opt to make the building with fewer smokers smoke-free.

To get smokers in assisted units to move out of the building that you’re making smoke-free, you’ll have to wait until their leases expire and offer them new HUD-approved leases that ban smoking. Some will agree to sign these new leases—others will decide to move out.

If you have market-rate units at your site, you can offer smokers in these units incentives, such as a short-term rent discount to move immediately to the part of the site where you allow smoking (but this won’t work for your assisted units). But if a market-rate smoker doesn’t accept your offer, or you have no vacant units in the area where you allow smoking, you’ll have to wait until the lease expires before adding a lease clause that bans smoking throughout that building. If the resident doesn’t want to sign the new lease with the ban on smoking, the resident will have to move out.

If your site has only one building, you may be able to reserve an entire wing for nonsmokers if that wing is separate from the rest of the building. But don’t set aside individual units or parts of buildings that aren’t separate from the rest. Smoke from a smoker’s unit will intrude on the nonsmoking neighbors.

Step #2: Use lease clause to ban smoking site-wide. Our Model Lease Clause: Use Lease Clause to Ban Smoking Site-Wide assumes that you’re banning smoking in a particular building. If you choose to ban smoking at the entire site or in certain parts of buildings, your attorney can adapt the clause accordingly. Your clause, like ours, should do three things:

     > Prohibit smoking in or near the building. The leases in some smoke-free buildings say that residents can’t smoke in their units, anywhere else in the building, or within 50 feet of it. That can help solve the problem of smokers congregating right outside the doors or leaning out their windows. But you may need to adapt this ban if your site doesn’t own all the property within 50 feet of the smoke-free building.

     > Make residents responsible for ensuring that their family members, guests, and invitees also comply with the rule. Just as you hold residents responsible for the misbehavior of their families, guests, and invitees, you can hold residents responsible for their smoking, too.

     > Warn residents that their neighbors may smoke until their leases expire. When you first start to implement a no-smoking policy, smokers who already live in your smoke-free buildings will be able to continue to smoke until their leases expire (or if HUD requires, until they move out). You don’t want residents who signed no-smoking leases to complain about it, claiming that you promised them a smoke-free environment. So say in the lease clause that there may be smoking in the building for up to a year and that you’re not responsible for stopping it until the individual smokers’ leases expire.

Step #3: Enforce no-smoking policy. You may have a hard time finding out whether residents or guests are smoking in smoke-free areas and an even harder time proving who did it. But it’s important to take steps to enforce your policy. You should make sure that infractions that occur are enforced consistently in every case, uniformly against all parties that violate the policy, and in a timely manner soon after the violation occurs. This will help ensure that the courts will uphold the policy. When you’ve determined who’s violating the policy, send that person a letter, like our first Model Letter: Send Letter to Residents Who Violate No-Smoking Policy (For Violations of Lease Clause).

Option #2: Ban Smoking in Common Areas Only

New house rules are relatively easy to adopt because you don’t need HUD approval to adopt them. And house rules are enforceable. Violations of house rules are lease violations and grounds for eviction, although courts usually require more than one warning before they’ll be willing to evict residents for violating house rules.

In Figure 6-6 of the HUD Handbook 4350.3, not allowing smoking in the common areas of the building is specifically highlighted as a reasonable house rule. Here’s an example of a house rule banning smoking in all common areas of the site. Be sure to show this rule to your attorney and give residents 30 days’ notice before using it at your site.

Model House Rule

Residents may not smoke anywhere in common areas inside XYZ Apartments’ buildings or within 50 feet of an XYZ building. Common areas include hallways, lobbies, stairs, elevators, laundry rooms, community rooms, and cafeterias. Failure to comply with this rule is a lease violation and may result in termination of your lease.

To enforce your house rule and ensure a solid ground for evicting offending residents, give offenders written warnings. You can send polite but firm letters requesting compliance with the house rule. For an example of a written warning, see our second Model Letter (For Violations of House Rules).

EDITOR'S NOTE: If you live in a state that allows for the use of medical marijuana, you may be wondering if you have to allow renters to smoke marijuana even when the building has a smoke-free policy. Marijuana is still classified federally as a Schedule 1 controlled substance, so its possession and use remains a federal crime. HUD’s position on medical marijuana can be summarized as follows:

• Prospective residents who are known current users of medical marijuana cannot be accepted as residents in subsidized properties;
• Requests for reasonable accommodations allowing an individual to use medical marijuana cannot be approved; and
• The housing authority or owner/agent of a subsidized property has discretion on a case-by-case basis on whether to pursue an eviction action against a current resident who is using medical marijuana. Therefore, managers do not have to allow renters to smoke marijuana in their units, even if the renter claims medical reasons.