HUD Provides Guidance to PHAs on Implementing Smoke-Free Public Housing Rule

HUD recently published Notice PIH-2017-03, which provides guidance to public housing agencies (PHAs) regarding the implementation and enforcement of smoke-free policies as required by HUD’s final rule prohibiting smoking in public housing. The effective date of the rule is Feb. 3, 2017, and PHAs will have 18 months to implement their smoke-free policies.

According to the rule, PHAs must design and implement a policy barring the use of prohibited tobacco products in all public housing units, interior common areas, and outdoor areas within 25 feet of public housing and administrative office buildings (collectively referred to as “restricted areas”). Prohibited tobacco products are defined as items that involve the ignition and burning of tobacco leaves, such as cigarettes, cigars, pipes, and water pipes (also known as hookahs). Interior common areas include but are not limited to hallways, rental and administrative offices, community centers, day care centers, laundry centers, and similar structures.

Communication of Policy

The guidance encourages PHAs to work with resident councils, provide residents with information on cessation assistance, post notices, and distribute information to residents about the smoke-free policy. The notice says early engagement with residents in policy development, implementation, and enforcement are less likely to result in evictions.

The guidance recommends PHAs to post signs that reference the new smoke-free policy. These signs must be accessible to all residents and visitors (including persons with disabilities), and must be posted in multiple languages consistent with the HUD’s current guidance on Limited English Proficiency. PHAs are also encouraged to use various communication methods such as letters, flyers, and seminars to share this information.

Lease Amendments

According to the notice, PHAs are required to amend individual resident leases to incorporate the smoke-free policies. All residents must sign the lease amendment as a condition of their continuing occupancy. Specifically, the amendments must incorporate the requirement that residents in public housing, members of a resident’s household, resident’s guest, or other person under the resident’s control must not engage in any smoking of specified prohibited tobacco products (including any electronic nicotine delivery system products) in restricted areas, or in other outdoor areas that the PHA has designated as smoke-free.

The PHA must notify a resident of a written revision to an existing lease at least 60 days before the lease revision is to take place, and give residents a reasonable amount of time for the resident to accept the revision. Additionally, PHAs may provide a specific date that the policy will take effect. Lease amendments may be processed anytime during the 18-month required time frame and lease amendments should note the availability and location of any designated smoking areas (DSAs).

PHAs will have flexibility as to how the lease amendment process occurs doing the 18-month implementation period after the rule’s effective date.

Designated Smoking Areas

Although the rule doesn’t require designated smoking areas (DSAs), PHAs may provide them outside of restricted areas and may include partially enclosed structures. DSAs should include suitable wellness and safety features, such as appropriate seating and shade, and must be accessible for persons with disabilities. This may include a flat or paved pathway, ramp, and adequate lighting.

If DSAs are provided, the notice encourages PHAs to include DSA funding in future capital needs planning. PHAs without sufficient space may work with their local municipalities to identify nearby public areas where residents may smoke safely. If available, PHAs may provide smoking residents the option to move to an alternate site with greater access to outdoor smoking.

E-cigarettes or Electronic Nicotine Delivery Systems (ENDS)

The use of ENDS in public housing is not prohibited. However, the notice points out that research on ENDS is emerging and evidence has revealed that the aerosol exhaled by ENDS users contains nicotine and potentially harmful ingredients but generally at much lower levels than tobacco smoke.

PHAs have the flexibility to prohibit ENDS in their individual smoke-free policies as they deem appropriate. For example, PHAs may prohibit ENDS in all developments and common areas or PHAs may allow the use of ENDS, within the unit, but prohibit ENDS in common areas or campus-wide. The notice reminds PHAs that residents should always be considered prior to adopting stricter smoke-free policies than required by the rule.

Enforcement

The notice provides considerable guidance regarding the required PHA enforcement and monitoring of their smoke-free policies. When enforcing a lease, the guidance states that PHAs must provide residents with due process and allow residents to exercise their right to an informal settlement process and a formal hearing. The notice declares that PHAs may not evict someone for a single incident of smoking. Rather, the notice encourages PHAs to adopt a graduated enforcement approach that includes escalating warnings with documentation to the tenant file. Under this approach PHAs would take specific, progressive monitoring and enforcement actions, while educating tenants and providing smoking cessation resources or referrals, prior to pursuing tenant eviction for smoke-free policy violations. A graduated enforcement framework may include the following:

• Lease amendment by the PHA that identifies the actions that constitute a policy “violation;”
• Agreement between the PHA and Resident Council that quantifies the number of documented, verified violations that warrant enforcement action;
• Pursuit by the PHA of one or more monitoring and enforcement actions in combination or in sequence that allows the tenant time to address the violation;
• Documentation of noncompliance if there are repeated violations, persistent non-responsiveness, or noncompliance with disciplinary actions. The PHA plan should note how many violations of the smoke-free policy would constitute a violation of the lease; and
• Eviction proceedings initiated by the PHA, though tenancy termination and eviction should be pursued only as a last resort.