How to Ensure Fair Housing Compliance When Considering a Smoke-Free Policy

In late 2016, HUD issued a final rule requiring public housing agencies (PHAs) to implement a smoke-free policy. The rule requires each public housing agency to implement a smoke-free policy banning the use of prohibited tobacco products in all restricted areas by Aug. 3, 2018. According to the rule, restricted areas include all public housing living units; indoor common areas in public housing; public housing agency administrative office buildings; and all outdoor areas up to 25 feet from the public housing and administrative office buildings. In addition, PHAs may, but are not required to, further restrict smoking to outdoor dedicated smoking areas outside the restricted areas, create additional restricted areas in which smoking is prohibited (for example, near playgrounds), or make their entire grounds smoke-free.

Though the rule applies only to public housing, it’s important for all assisted sites to be aware of HUD’s smoke-free housing rule. Often with rules like this, HUD starts with public housing and then later expands to owners and operators of privately owned HUD-subsidized housing. We’ll discuss what you can and can’t do about smoking at your site under fair housing law. Then we’ll suggest five rules to help you prevent potential fair housing problems with respect to smoking policies.

Legal Background

There is no “right” to smoke in a rental home, and smokers are not a protected sub-class under antidiscrimination laws, according to HUD. Responding to objections that its smoke-free public housing rule was an invasion of civil rights, HUD said that there is no constitutional right to smoke. Courts have upheld smoke-free policies as long as they are rationally related to a legitimate government purpose. Chief among them is protecting people from secondhand smoke, but other legitimate reasons include improving resident health and safety, reducing fire hazards, maintaining clean and sanitary conditions, and reducing non-smoker complaints and threats of litigation.

But that doesn’t mean that it’s okay to discriminate against smokers. HUD said its smoke-free rule was not intended to bar smokers from public housing, or to require anyone who smokes to stop. In finalizing this policy, HUD said that the rule doesn’t prohibit individual public housing residents from smoking, and that prospective and current residents are free to smoke in allowable areas outside of public housing facilities and other restricted areas.

At sites that don’t regulate smoking, the most common fair housing complaints are from residents with disability-related problems with exposure to secondhand smoke. Fair housing law bans discrimination based on disability, including refusal to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford a person with a disability an equal opportunity to use and enjoy his home.

To be entitled to a reasonable accommodation, the request must be made by or on behalf of an individual with a disability—that is, an individual with a physical or mental impairment that substantially limits one or more major life activities. In general, those provisions apply to residents with serious health problems that make them susceptible to the effects of secondhand smoke—not to nonsmokers who are simply annoyed by secondhand smoke. It may be obvious—if, for example, the resident uses oxygen for breathing problems—but it may not, since the law is broad enough to cover a variety of impairments, including heart and lung conditions, that may not be obvious or apparent.

FIVE RULES TO ENSURE FAIR HOUSING COMPLIANCE

WHEN CONSIDERING A SMOKE-FREE POLICY

Rule #1: Check All Applicable Laws

When considering whether and where to regulate smoking at your site, it’s important to check all applicable laws based on the nature of your site and where it’s located.

HUD’s rule for public housing bars smoking anywhere indoors and outdoors within 25 feet of the public housing facilities. The rule applies only to public housing—to date, there are no federal requirements to adopt smoke-free policies in federally assisted sites.

Meanwhile, several states have laws and policies that prohibit smoking in private units of multi-unit housing communities that receive state tax credits, according to the American Nonsmokers’ Rights Foundation (ANRF). Examples include Delaware, Hawaii, Maine, Montana, New Hampshire, North Carolina, and Washington.

Currently, there are no state laws requiring market-rate communities to adopt smoke-free policies. In California, which is leading the trend toward smoke-free housing, there have been a couple of efforts to pass state legislation to ban smoking in multifamily housing, but so far they’ve been unsuccessful, says attorney Lynn Dover, a partner at Kimball, Tirey & St. John LLP.

Nevertheless, Dover says that California probably has more local no-smoking laws than anywhere else. The details vary, but these local ordinances may ban smoking outright—or restrict smoking in common areas or certain portions of the property at multifamily housing sites.

At last count, the ANRF says that at least 25 cities and counties in California require 100 percent smoke-free housing. These laws typically apply to both privately owned and publicly owned multi-unit communities and do not permit current residents to be grandfathered in so they can continue to smoke in the building. Another 25 restrict smoking: Though they don’t prohibit smoking in all units in all multi-unit housing, they restrict smoking in private units of some specified types of buildings. Some require certain buildings to be 100 percent smoke free, while others apply only to new buildings or newly leased units.

Rule #2: Adopt and Disclose Smoking-Related Policies

If you are an assisted site and are considering implementing a smoke-free policy, you’ll need a formal policy with all the details about your site’s policy on smoking. Without a policy, people will be able to smoke where they want, so you’ll need the policy to make sure everyone understands whether—or where—smoking is permitted at your site.

And, if you currently have a policy, you should review it to make sure it says what you want, says Dover. For one thing, the policy should be clear about whether your site bans smoking anywhere on the property, including inside units and accessory areas, such as balconies or patios. In the alternative, the policy should spell it out if smoking is forbidden only in certain locations, such as common areas or amenities, or allowed only in certain locations, such as designated smoking areas.

It’s also important for the policy to be specific about what it covers. One option is to follow HUD’s lead by adopting the same restrictions as the public housing rule, which bans cigarettes, cigars, and pipes—even waterpipes (also known as hookahs). Or you can go further to ban the use of e-cigarettes (known formally as Electronic Nicotine Delivery Systems or informally as vaping). Though HUD declined to expand the public housing rule to ban e-cigarettes, Dover says that you should consider whether you want your smoking ban to cover e-cigarettes along with other tobacco products.

If your site decides to implement a smoking ban, you should be aware that it’s not something you can put into effect overnight. The National Housing Law Project recommends that residents be informed of the smoke-free policy and sign a new lease as far in advance of its implementation as possible (up to one year). This allows ample time for residents to take advantage of available cessation services, request a reasonable accommodation, and/or prepare for any changes to daily routines that the ban will require.

You can require all new residents to sign a lease that includes smoking restrictions, but you can’t impose the same restrictions on your current residents. For these residents, you may have to include lease addenda on a rolling basis as they hit their annual recertification dates. However, with enough communication, residents will have plenty of notice about the new policy.

For an example of sample lease language, see our Model Lease Addendum: Use Addendum to Ban Smoking at Your Site, below.

Rule #3: Take Complaints About Secondhand Smoke Seriously

Whatever your policy about whether and where smoking is allowed at your site, it’s important to address complaints about secondhand smoke, particularly from residents with disability-related problems with exposure to secondhand smoke. It may be about smoke drifting outside from an adjoining neighbor’s patio or balcony, or it may be smoke infiltrating into a resident’s unit from neighbors smoking inside their units. Either way, the resident may demand that you order the neighbor to stop smoking or to move him to another unit.

Dover, who sees this a lot, says there’s been an uptick in reasonable accommodation requests related to complaints about secondhand smoke over the past few years. Follow your standard policies and procedures to determine whether the resident has a disability that makes her susceptible to the effects of secondhand smoke. In general, an individual is entitled to a reasonable accommodation or modification when there is a clearly identifiable disability-related need for the requested accommodation or modification. Merely being annoyed by secondhand smoke doesn’t give the resident any special rights under fair housing law.

Unless the resident has an impairment that’s obvious or apparent, you don’t have to take her word for it, Dover says. You’re entitled to request verification from a credible source, such as a health care provider, that she qualifies as an individual with a disability under the FHA—that is, she has a physical or mental impairment that substantially limits one or more major life activities. Such determination must be made on a case-by-case basis, depending on the nature of the resident’s impairment and the severity of her reaction to secondhand smoke.

Rule #4: Consider Options to Resolve Accommodation Requests

If you determine that the resident has a disability-related problem with exposure to secondhand smoke, then the next hurdle is deciding what to do about her accommodation request. How you’ll handle it will depend on the nature of her complaint—and whether her accommodation request is reasonable.

In general, fair housing law doesn’t require sites to grant an accommodation request unless it’s reasonable—that is, it doesn’t impose an undue or financial and administrative burden on the site or would fundamentally alter the nature of the site’s operations. Though sites may reject unreasonable requests, HUD says that they should do so only after engaging in an “interactive process” to discuss whether there is a reasonable alternative that would effectively address the resident’s disability-related needs without excessively burdening the site.

Whether a resident’s request is unreasonable will depend on your site’s policy on smoking—and what she wants. Unless the neighbor is violating the lease, these cases can be difficult to resolve, Dover says. If your site doesn’t restrict smoking, then it’s probably unreasonable to grant a request to make the entire property smoke-free. The same goes for complaints about neighboring smokers: Since the neighbor isn’t doing anything wrong by smoking cigarettes, it would be unreasonable to grant a request to order the neighbor to stop smoking or to require him to transfer to another unit.

Though you’re limited in what you can do, you should engage in the interactive process to come up with a reasonable alternative that would meet the resident’s disability-related need to limit her exposure to secondhand smoke. Put simply, you should talk to the resident, offer some suggestions, and listen to her preferences. Dover offers some options:

You may offer to have maintenance come to her unit to determine what can be done to improve air quality, though that may not be effective. Research shows that secondhand smoke will intrude into other units even when there is mechanical ventilation or air cleaners are installed, according to HUD. Or you may be able to offer the person complaining about secondhand smoke a transfer to an empty unit, though this may not prevent the problem from recurring unless the neighbors in adjoining units agree to sign a smoke-free lease addendum to their leases.

Remember that documentation is crucial in difficult cases like these because of the risk of a fair housing claim from a resident dissatisfied with your response to his accommodation request. Be prepared to defend your actions by documenting the process, including all your efforts to find a workable solution that would effectively meet his disability-related problems with secondhand smoke exposure.

Rule #5: Consider Smokers’ Accommodation Requests

If your site adopts a smoke-free policy, there’s another type of fair housing complaint you could face—one from smokers. Though the smoking itself is not considered a disability, you could receive requests for a reasonable accommodation from residents who have disability-related difficulties with complying with your smoking restrictions.

The issue came up in public comments HUD received about its smoke-free public housing rule. Some objected that an indoor smoking ban was unfair to persons with disabilities who cannot easily travel outside their units, particularly if they live alone and can’t leave without help. Others commented that it was not right to force the elderly or persons with disabilities outside in bad weather, putting their health at risk. Some commented that people use smoking to deal with medical issues; prohibiting indoor smoking would force them to forgo the use of nicotine to combat their pain.

Others focused on the effects the smoking ban would have on those with mental health issues who may rely on smoking to help deal with those issues. Some stated that residents in acute stages of post-traumatic stress syndrome need to smoke to calm down but can’t leave their apartment. Some stated that smoking helps people calm down and relieve stress, and this rule would increase their burden.

In response, HUD said it was aware of national surveys suggesting that persons with disabilities tend to smoke at a higher rate than persons without a disability, but that the public housing agency had flexibility under the rule to address difficulties encountered by residents.

One option off the table is allowing residents with disabilities to continue to smoke within restricted areas. If a particular resident was especially burdened by the smoke-free policy, HUD said that the site could consider moving that resident to a first-floor unit or closer to an exit door to provide easier access to smoking outside of his unit. Another option would be to provide designated smoking areas with an accessible walkway, cover, lighting, and seating.

HUD said it wasn’t aware of any medical conditions for which smoking is considered a legitimate, proven treatment. If a resident needed nicotine treatment to quit smoking, HUD said that it can be delivered orally or through dermal applications. As for smokers with behavioral health conditions, such as mental or substance abuse disorders, HUD pointed to research showing that they would actually benefit from quitting smoking.

Aside from disability-related complaints, there is another way that communities could trigger liability under fair housing law: inconsistent enforcement of smoking policies based on race, national origin, or other characteristic protected under federal, state, and local law. It would be a violation of fair housing law to rely on no-smoking policies as a way to exclude members of a protected class or to enforce smoking restrictions more stringently against applicants, residents, or their guests based on a protected characteristic.

Insider Source

Lynn N. Dover, Esq.: Partner, Law Offices of Kimball, Tirey & St. John LLP, 7676 Hazard Center Dr., Ste. 900, San Diego, CA 92108; (619) 234-1690; lynn.dover@kts-law.com.