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Secondhand Smoke SeepageA Law Synopsis by the Tobacco Control Legal Consortium April 2010 Law. Heallth. Justice. Introduction Key Points In recent years, the smoke-free Public housing authorities and private owners trend has swept into multi -unit of affordable multi -unit housing may prohibit housing as landlords, condominium smoking in individual units. A smoke-free policy owners and housing authorities adopted by a public housing authority or an have discovered the health and owner of U.S. Department of Housing and Urban financial benefits of smoke-free Development {HUD} -assisted housing may apply multi -unit housing. Public housing to .smokers who already live in the building in authorities and owners of multi -unit addition to new residents as long as they are given subsidized housing have been on the "legally adequate" notice. leading edge of this trend.. In 2008, the National Multi -Unit Housing HUD has strongly encouraged public housing Council (NMHC), which represents authorities to adopt smoke-free policies to protect larger apartment fams in the United the health of residents,Who are often more States, stated that the smoke-free vulnerable to secondhand smoke than those of trend "is actually more common higher;income. in public housing than privately owned housing at this point."' As an Smoking is not a disability under federal or .state example, at the beginning of January law. In fact, ,prohibiting smoking can protect 2005, seventeen housing authorities against lawsuits by tenants with certain disabilities in six states had smoke -flee policies that are exacerbated by exposure to secondhand for some or all of their buildings. smoke. By February 2010, this number Public housing authorities may change their house had soared to 141 local housing rules or leases to make 'individual units smoke - authorities in twenty states? free. Those authorities that prefer to incorporate a The rising popularity of smoke- smoke-free policy into a lease may want to consult free policies for subsidized or with theix regional HUD office to confirm that such affordable housing units has led to a change is considered "reasonable." Project -based the need for research into the legal section 8 housing may adopt asmoke-free policy and procedural aspects of adopting by changing their house rules; owners must receive and implementing such policies: approval from HUD to change their leases. In the "Subsidized" and "affordable" are past, HUD has denied requests to change a lease to terms that generally refer to housing incorporate a smoke-free policy, but HUD's views that receives government funding to may be changing. Providers of voucher -based assist those with lower incomes who housing may choose to adopt a smoke-free policy are unable to pay the property's full through a rules change or by changing the lease, as rent. Different programs establish long as all tenants are treated equally. different income levels to qualify 1 for a government housing subsidy. In addition to income -based requirements, some government programs target certain segments of the population. For example, Section 202 is a U.S. Department of Housing and Urban Development (HUD) -assisted housing program for low-income seniors and Section 811 is HUD -assisted housing for those who have a disability and are low income. While many government programs provide affordable housing, this synopsis is limited to the three most colrnnon forms of such housing, which are: (1) public housing developments; (2) project - based section 8 housing; and (3) voucher -based section 8 housing. Public housing developments are owned and managed by local city or county housing authorities. If the local housing authority receives federal subsidies, then it must follow certain regulations of HUD. Under the section 8 project -based housing program, a private multi- unit housing development receives federal HUD funding to defray a portion of tenants' rent and the subsidy remains with the property. Under the section 8 voucher program, HUD provides the eligible tenant with a voucher to offset rent at a private multi -unit development. Because the subsidy stays with the tenant, not the property, the tenant may use the voucher at a different location. Much of the information in this synopsis may apply to other kinds of affordable housing, but procedures for enacting and implementing a smoke-free policy may differ. Section I documents the urgent need for smoke- free housing for those who have lower incomes, and the health and monetary benefits of providing smoke-free housing. Section H makes it clear that it is legal to prohibit smoking in public housing and HUD -assisted residential units, debunks the mistaken belief that smoking is a disability and .discusses why allowing smoking could lead to lawsuits against the housing authority. Finally, Section III outlines the procedure that public housing authorities and HUD -assisted owners roust follow to enact smoke-free policies legally and provides recommendations on how to enforce such policies. Section l - The Case for Affordable Smoke -Free Housing The movement toward smoke-free affordable housing is accelerating in the wake of a HUD notice ("HUD Notice"), issued on July 17, 2009, strongly encouraging public housing authorities to adopt smoke-free policies in their multiunit housing units.' In June of 2009, HUD's Office of Healthy Homes and Lead Hazard Control released a strategic plan targeting, azmong other measures, the elimination of secondhand smoke in homes "to protect the health of children and other sensitive populations in low-income households.114 Concurrently with the release of the Healthy Homes Strategic Plan, the .U.S. Surgeon General had released "The Surgeon General's Call to Action to Promote Healthy Homes," which called for the elimination of secondhand smoke to protect residents from health hazards in the home.' This affirmed the Surgeon General's earlier conclusions, in 2006, that "there is no risk-free level of exposure to secondhand smoke" and that "[s]eparating smokers from nonsmokers, cleaning the air, and ventilating buildings cannot eliminate exposures of nonsmokers to second-hand smoke."' The report also concluded that exposure to secondhand smoke raises the risk of heart disease by at least one quarter (25 to 30 percent).' Residents of Affordable Housing are Especially Vulnerable to Secondhand Smoke According to the HUD Notice, more than half of public housing residents (54 percent) are either children or elderly residents over age sixty-two.' These populations "are especially vulnerable to the effects of [secondhand smoke]."' For children, secondhand smoke increases the likelihood that they will develop bronchitis, pneumonia, asthma, poorer lung function and other breath ng problems, as well as ear infections." For the elderly, every major cause of death in their population — cancer, heart disease, and stroke — is associated with smoking and secondhand smoke, thus causing them "in particular [to] bear a disproportionate burden of the negative effects of smoking and secondhand smoke."] The HUD Notice also mentioned that in addition to the young and the elderly, there are "a considerable number of [public housing] residents with chronic diseases such as asthma and cardiovascular disease who are particularly vulnerable to the effects of [secondhand smoke]."" A 2009 research study noted as well that low-income and underserved racial and etlmic minorities, who live disproportionately in public or subsidized housing, suffer more from "tobacco -related morbidity and mortality, [and] have an increased incidence of heart disease as well as asthma and cancer."33 Additionally, according to data 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.14 The special vulnerability of a. substantial number of residents of low income housing makes the case for smoke-free housing even more compelling. The Market for Smoke -Free Affordable Housing A majority of low income individuals do not smoke, creating a demand for smoke-free units that the market currently is not meeting. Nearly three quarters (72 percent) of Americans with incomes -.under $20,000 a. year are non-smokers.'$ Smoking :rates are low in those groups disproportionately represented in low-income housing: more than 90 percent of persons age sixty-five and older do not �F smoke; more than 75 percent of African Americans do not smoke; and 85 percent of Hispanics are non-smokers." A 2009 survey of tenants in the four -county Portland, Oregon metropolitan area revealed that non-smoking tenants greatly outnumbered -smoking tenants, and nearly half (46 percent) of all tenants were not comfortable renting an apartrnent acent to smokers. According to the study, "the number of applicants who will avoid smoking - permitted units is almost 4 times greater than the number of applicants who will avoid no -smoking units.""' The study concluded: As to the enduring perception that lower income renters are substantially different fiomm higher income renters on this type of question, the current data confirms what we have seen in past research as well: It simply is not true. While it is true that lower income renters are somewhat more likely to be smokers themselves, this does not translate into a greater tolerance to live next door to indoor smokers." In keeping with this, a recent survey of residents of public housing in Boston found that nearly half (49 percent) of tenants were experiencing secondhand smoke incursion and nearly three quarters of all tenants agreed that exposure to secondhand smoke is hannful.19 Secondhand Smoke.Transfer in Affordable Housing A recent Harvard School of Public Health study suggested that greater exposure to secondhand smoke in low-income housing is likely due to higher smoking rates, smaller units, poor venti-lation, and infiltration between units.26 The Harvard study, which examined forty-nine low-income multi -unit residences, detected nicotine in 89 percent of non- smoking homes studied. 21 3 The study concluded that secondhand smoke "may infiltrate into homes through windows, doors, shared air spaces, holes, and ventilation systems if cigarettes are smoked outside or in neighbouring residences." zz Research demonstrates that up to 65 percent of air can be exchanged between units.23 The recent HUD Notice cited the problem of secondhand smoke seepage as a reason to adopt a smoke -flee policy in public housing. According to the Notice, "[b]ecause [secondhand smoke] can migrate between units in multifamily Housing, causing respiratory illness, heart disease, cancer, and other adverse health effects in neighboring families, the Department is encouraging PHAs to adopt non-smoking policies.1114 Further, the Notice stated that its issuance "will enhance the effectiveness of [HUD's] efforts to provide increased public health protection for residents of public housing." The 2006 Surgeon General's report discussed the infiltration of secondhand smoke in multi -unit housing and supported the adoption of smoke-free policies 26 The report warned against reliance on air purifiers, which are often touted as a "solution" to involuntary smoke exposure.27 While air purifiers may reduce smoke odor, they are not designed to remove the toxic particles from tobacco smoke." The American Society of Heating, Refrigeration and Air -Conditioning Engineers (ASHRAE), which sets the standard far indoor air quality, has concluded that no ventilation system or air purifier is capable of eliminating secondhand smoke. Consequently, ASHRAE does not recommend a ventilation standard for buildings that permit smoking. According to ASHRAE, "[a]t present, the only means of effectively eliminating [the] health risk associated with indoor exposure is to ban smoking activity."21 Adjusting ventilation, sealing gaps, and other remedial treatments may reduce but not eliminate secondhand smoke exposure.31 As public awareness of the health risks of secondhand smoke increases, owners and managers who continue to allow smoking can expect to spend more time refereeing disputes and engaging in remediation efforts. "Property a anagers say complaints about secondhand smoke in apartment communities are on the rise," according to the National Multi -Unit Housing Council (NMHC). The Council notes, "A majority of renters ,would actually prefer to rent an apaitinent in a smoke-free community. In addition, about half say that they have moved or would move because of secondhand smoke."3' The National Center for Healthy Housing has reported that secondhand smoke complaints and requests for unit transfers drop following the implementation of a smoke-free policy.3'- Smoke-Free Policies Save Money While adopting smoke-free policies is good public health policy, it also benefits the bottom line, which is .particularly critical in an economic downturn. Preventing fires from cigarettes is yet another good example of a public health measure that . saves money. Cigarette smoking is a leading cause of fires in multi -unit buildings — and fires fiom smoking kill more people than any other kind of fire. According to statistics from the U.S. Fire Administration (USFA), smoking was responsible for more than a quarter (26 percent) of fatal fires in multi -unit building fires in the latest year in which statistics are available.33 The USFA reports that older residents are at especially high risk for dying in a smoking-related house fire .14 The National Multi -Unit Housing Council notes that restricting smoking in apartment units can help owners reduce the "extremely costly risk of sustaining a fire." Additionally, the Council notes that "smoke-free policies, whicli reduce a firm's risk of fire damage and human injury, may also reduce property insurance premiums, although no statistics are readily available to indicate what kind of premium advantage firms with smoking bans enjoy."" Landlords and public housing authorities who go smoke-free can also save money on cleaning costs and building maintenance, stretching building budgets. For example, 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 ($1,510) vs. a non-smoker ($560). Even more dramatic, the cost of rehabilitating the unit of a heavy smoker was five times greater, or nearly $3,000 more, than the cost of rehabilitating a non-smoker's unit.36 According to NMHC, "Souse estimates suggest that cleaning walls, carpets, appliances and fixtures exposed to smoke can add $400 to $3,000 to unit turnover costs, depending on the length of residency and how much the resident smoked in the unit.1137 In addition, banning smoking reduces the load on heating and air-conditioning equipment, lowering operating costs. According to an article in the Occupational Health and Safety Journal, "[t]he option of banning smoking from facilities brings the benefits of less need for dilution air; less cleaning, less maintenance on air handling equipment, and lower operating costs for the HVAC system."" HUD, in its 2009 notice, recommended a non- smoking policy as a lower-cost means of achieving good indoor air quality (IAQ). According to the HUD Notice, achieving good IAQ requires minimizing indoor air pollutants. Because "ETS [environmental tobacco smoke] is known to be an indoor air pollutant ... it would be difficult for a PHA [public housing authority] to achieve good IAQ [indoor air quality] in its buildings if residents are allowed to smoke, especially indoors." The notice farther stated that a non-smoking policy was an "excellent approach" for those PHAs seeking to improve their IAQ without the costs of renovation.39 Other possible savings from smoke-free policies are: • In several states (such as Maine, California and New Hampshire), developers of low- income housing are able to earn tax credits for providing smoke-free housing4° • Smoke-free policies can help a building earn "Green Building" program credits through program such as the U.S. Green Building Council's Leadership in Energy and Environmental Design (LEED) program. 41 Section ll — Prohibiting Smoking in Public Housing and HUD - Assisted Housing Units HUD Encourages the Adoption of Smoke - Free Policies HUD has indicated that subsidized and public housing providers are free under federal law to prohibit smoking in residential units as long as the policies comply with applicable state and local laws.42 There are no federal or state laws or cases that prohibit HUD -assisted property owners and PHAs from offering smoke-free rentals43 and there are no constitutional protections for smokers.44 The Chief Counsel in HUD's Detroit office concluded in a 2003 letter that private owners of HUD -assisted housing may prohibit smoking as long as they are in compliance with any state law on smoking. The letter stated that "the right to smoke or not to smoke is not a right that is protected under the Civil Rights Act of 1964 or any other HUD -enforced civil rights authori-ties. . .."4S In August 2007, the Chief Counsel of HUD's Minneapolis field office wrote a letter confirming that with respect to multi -residential properties assisted by HUD "there is no HUD policy, by statute, regulation, handbook or otherwise that restricts landlords from adopting a prohibition of smoking in common_ areas or in individual units."46 A similar letter, written in January 2007 by the Field Office Director of HUD's Detroit 'office, noted that in Michigan "several housing authorities and private landlords and management companies have voluntarily adopted smoke-free policies for their HUD -assisted developments." The letter stated that there is no HUD policy specifically restricting smoking in HUD -assisted housing.47 A 1996 HUD opinion permitted Nebraska's Kearney Housing Authority to ban smoking in its public housing development. That same year, a HUD opinion permitted the Fort- Pierce 5 Housing Authority in Florida to ban smoking in its public housing.4' HUD has also agreed to a non-smoking policy in two cases brought under the Fair Housing Act. In 1998, HUD approved a conciliation agreement providing smoke-free housing in a private HUD -assisted building for a tenant with respiratory difficulties who was exposed to smoke from a neighboring apartment.49 In 2002, the Seattle Housing Authority entered into a consent decree providing a smoke-free unit for a tenant who had a respiratory condition after the Department of Justice brought suit. In response to the lawsuit, the housing authority made one building at a high-rise complex smoke-free and phased in a non-smoking policy in the other two buildings at the complex.5° Most recently, in its 2009 Notice, HUD has made it clear that it not only permits smoke-free policies but now actively encourages public housing authorities to adopt them.51 Smoking is Not a Disability under Federal or State Laws Constitutional Law The National Multi -Unit Housing Council has noted that "one of the biggest reasons many apartment firms have been hesitant to adopt smoke-free policies is a mistaken belief that restricting a resident's ability to smoke on the property or within [his or her] apartment could violate the law." However, the council noted in its attorney -written memorandum, "There is no `right to smoke' and smokers are not a protected class under fair housing laws. In fact, firms can actually reduce their legal liability by restricting or bamung smoking. 1152 State and federal courts have consistently ruled that smoking is not a protected activity under the U.S. Constitution or state constitutions, and smokers are not a protected class.53 The court in Axelrod v Fagan stated bluntly, "[t]here is no more a fundamental right to smoke cigarettes than there is to shoot up or snort heroin or cocaine or run a red light."" Statutory Law Several pieces of federal legislation protect the rights of the disabled. The federal Fair Housing Act (FHA) prohibits housing discrimination based on disability (in addition to race, color, religion, sex, family status and national origin).55 Other anti -discrimination laws, including Section 504 of the Rehabilitation Act56 and Title 11 of the Americans with Disabilities Act (ADA),57 as well as various state laws, prohibit discrimination based on disability. However, none of these laws protect smokers. For example, in Brashear a Simms, a federal court dismissed as "frivolous" a state prisoner's claim that a smoking ban in Maryland's prisons violated his rights as a smoker under the ADA. The court stated: [C]ommon sense compels the conclusion that smoking ... is not a "disability" within the meaning of the ADA. Congress could not possibly have intended the absurd result of including smoking within the definition of "disability," which would render somewhere between 25 percent and 30 percent of the American public disabled under federal law because they smoke." A state court expressed this same concern in a ruling against a smoker who alleged a violation of state disability laws as well as the ADA. The Court of Appeals of Michigan ruled that an employee who was fired after smoking on company property was not protected under the state's civil rights act or the ADA.59 The court said that classifying smoking as a disability would thwart the purposes of the state's Handicappers' Civil Rights Act (HCRA). "Plaintiff's claimed `handicap' is shared by countless other individuals in the workplace and in society as a whole," the court stated.60 It concluded. that to "automatically label this condition as one that substantially impairs a major life activity is inconsistent with the HCRA and would do a gross disservice to the truly handicapped. 1161 While that case's holding applies only to Michigan disability laws, no court has found that state disability laws protect smokers. A law review article examining the issue of secondhand smoke in multi -unit residential housing noted that while smoking behavior can change frequently, state anti -discrimination laws were intended to protect only immutable characteristics. According to the author, "the reality is that more than 30 million Americans have quit and thousands more start smoking every day. "6' - Liability for Failure to Provide Smoke - Free Housing While smokers cannot avail themselves of any legal protection under federal and state disability laws because sin.oking is not considered a disability, non-smokers exposed to smoke in multi -unit housing can access those same laws under certain limited circumstances. The National Multi -Unit Housing Council has warned its members that "courts have held that an apartment resident with severe breathing difficulty that is exacerbated by secondhand smoke may actually be entitled to a reasonable accommodation under the Fair Housing Act." It went on to note: In contrast to conventional wisdom, apartment owners may be held more legally liable by allowing smoking than by restricting it. Residents have become more Imowledgeable about the risks of secondhand smoke and savvier about pursuing legal options to protect their health. State courts have ruled against apartment owners and have ordered significant rent reductions and other penalties under the nuisance, warranty of habitability, and quiet enjoyment theories of law.63 However, simply showing an adverse health reaction to secondhand tobacco smoke is insufficient could include things such as breathing, walking or performing manual tasks. A person who merely finds secondhand smoke annoying would likely not obtain FHAprotection.GS Some state disability laws define "disability" differently than the FHA, but standards under various state laws for showing a disability affected by secondhand smoke exposure appear equally high.66 If a non-smoker has a medical condition severe enough to be considered a disability under state or federal law, then he or she is entitled to a "reasonable accommodation" to protect against secondhand smoke as long as the accommodation does not impose an "undue hardship" on the housing provider.G7 Such an accommodation could include developing or enforcing a smoke- free policy, either in the building or in the units surrounding the affected non-smoker, repairs to reduce secondhand smoke infiltration, or a transfer to a unit away from the secondhand smoke. The non-smoker may seek to have smoking banned from building common areas if secondhand smoke is seeping into his or her unit from those areas .68 Which actions are considered a "reasonable accommodation" and which might be considered an "undue hardship" (and thus not required) are determined on a case-by-case basis. Section 111- Adopting a Smoke - Free Policy for Affordable Housing The decision to adopt a smoke-free policy for affordable housing does not end the process. Public housing authorities and each type of HUD - assisted housing have different requirements for giving notice to tenants of the change and there are different rules on whether the change needs to be made through the lease or through a change in tenant rules. As the chief counsel of the HUD regional office in Minneapolis explained: proof of a "disability" under the Fair Housing Act HUD ... funds a substantial variety of (FHA). To use the FHA, the affected person must housing programs ... each with its own prove the adverse health reaction substantially set of rales as to residency and occupancy. limits one or more major life activities64 — which None, however, prohibit establishment of a smoke-free environment. The differences might be as to whether the establishment can be through the lease, a lease addendum, or a house rule. Section 2021811 projects, for example, don't permit modification of the model lease, but a smoke-free policy could be established through the house roles." Public Housing Authority (PHA) A public housing authority can adopt a smoke- free policy through house rules70 or through a change in the lease. House rules must be posted in a conspicuous manner and incorporated by reference in the lease.71 Before making a rule change, public housing authorities must provide residents with a 30 -day notice and the opportunity to present written comments." A public housing authority can implement a policy change through a lease addendum if the provision is considered "reasonable."73 While in the past HUD officials responsible for interpretation of HUD's PHA regulations have said that HUD would be unlikely to support a. smoke-free amendment to a lease,74 the 2009 HUD notice states: "PHAs are encouraged to revise their lease agreements to include the non-smoking provisions."" The HUD notice is a "recommendation" to local housing authorities, and not a directive, so if the PHA would prefer to make the change in its house rules, it is permissible. The advantage of having a smoke-free provision in the lease rather than a house rule is that, if challenged, by a non-compliant tenant, the provision is more likely to withstand judicial scrutiny. A lease provision provides a tenant with clear and conspicuous notice of any smoking ban. Before adopting a lease change, which is effective only at the end of a lease term, the public housing authority needs to give tenants at least sixty days of notice prior to the end of the term.76 Due to the advantages of a smoke-free lease provision versus a rule change, advocates may decide to move forward with a lease addendum or may want to ask for an opinion on a lease addendum from their HUD regional office. A smoke-free lease provision is clearly permissible for the twenty-nuae housing authorities participating in a HUD pilot project for low-income housing." Congress in 1996 created the "Moving to Work" program to allow a limited number of public housing authorities to design and test innovative local housing strategies for low-income families. Housing authorities under the Moving to Work program are exempt from existing HUD public housing regulations, and consequently have the discretion to add a smoke-free provision to their leases.'' Since 2001, the Seattle housing authority has offered a smoke-free lease at its Tri -Court public housing development under this program.79 Project -Based Section 8 Housing in general, private multi -unit housing projects that accept federal subsidies tied to the property (i.e., project -based Section 8 housing) must use a HUD -approved lease80 and must receive HUD approval to make any changes in the lease." HUD may approve changes to keep the lease in compliance with state or local law or to conform to "property management practices generally used in the project's market area."82 Although not a HUD requirement,&3 a 2003 letter from the Chief Counsel of HUD's Detroit field office makes it clear that project owners may adopt nonsmoking policies through a change in the house rules. The letter states: "[P]roject owners may devise reasonable no smoking rules at their properties that express legitimate concerns for the safety of the residents and condition of individual units and buildings as a whole. As long as no -smoking policies meet the normal house rules criteria, HUD approval is not required." The letter goes on to note that if owners want to make the non-smoking policy a condition of the lease, "HUD approval is required to the extent that the owner is bound to utilize HUD's model lease."84 The language in the 2009 HUD Notice recommending that public housing authorities make the change in their lease provisions, bodes well for project owners seeking HUD approval for such lease changes. Voucher -Based Section 8 Housing Private developments that accept vouchers can adopt a smoke-free policy either through a lease addendum or through house rules. However, if the change is made through a change to the owner's standard lease fonn, it must apply to all residents and not just to federally assisted tenants. 11 There are no particular notice procedures required under the voucher program other than the state and local notice requirements that apply to all landlords. Grandfathering of Existing Tenants The 2009 HUD notice stated that public housing authorities have exercised considerable discretion in implementing their smoke-free policies. According to the notice, "[s]ome PHAs have established smoke-free buildings. Some PHAs have continued to allow current residents who smoke to continue to do so, but only in designated areas and only until lease renewal or a date established by the PHA. Some PHAs are prohibiting smoking for new residents."S6 It is apparent from this notice, and other HUD letters, that it is permissible to enact a smoke-free policy that applies both to current as well as new residents of a PHA or HUD assisted -housing, including current smokers. PHAs and HUD - assisted housing providers are not required to permanently "grandfather" or exempt existing tenants, although they must provide "legally adequate" notice of any impending change. For example, the recent letter from the Chief Counsel of the Minneapolis HUD office affirmed that there was no HUD policy requiring HUD -assisted properties to grandfather existing tenants, but that state and local law must be followed, which would include any notice provisions." A 2004 letter from the regional director of the Seattle HUD office, which was based on research by HUD legal staff, noted that HUD did not require the permanent grandfathering of any tenant in HUD -assisted housing. The letter stated that it is permissible to require existing tenants to stop smoking in their units as long as they are given sufficient notice.BB The Chief Counsel of the HUD Detroit field office in her 2003 letter stated that owners of HUD - assisted housing must "take caution to grandfather in those smoking residents currently residing at the complex."89 She later clarified that the tern "grandfather" as used in her letter does not mean a permanent exemption for existing smokers. She said that the landlord could either wait until the annual review or expiration of the smoker's lease, or, in the case of a long-term lease, until after the provision of legally adequate notice. She said that it was reasonable to require tenants with long-term leases to move or cease smoking, as long as the smoker received reasonably adequate advance uotice.9° It should be noted that leases in a public housing project technically do not "expire" under HUD regulations. All public housing leases are for one-year terms, and are renewable annually "in perpetuity" as long as the tenant is in compliance with certain key lease provisions. Although the leases are renewable annually, they may be in public and HUD -assisted housing, but it also modified at any time by written agreement." protects against lawsuits from tenants exposed to Implementing a. smoke-free policy after the lease's expiration or after providing legally adequate notice wakes sense due to the length of time it would take for a building to become completely smoke-free if the owner had to wait for each tenant to move or die. Waiting for such a prolonged period defeats the purpose of a smoke-free policy, as individual units are not truly smoke-free until the entire building is smoke-free. Residents who suffer from exposure to secondhand smoke should not have to wait for every smoking tenant to leave or die in order to get relief from their symptoms. From a practical standpoint, it is easier to make the change to smoke-free at the time of lease review or renewal or after providing legally adequate notice because it reduces the amount of time that differing rules will apply to tenants. For example, in the case discussed in Section II involving a HUD -approved conciliation agreement providing smoke-free housing for a tenant with respiratory difficulties, existing smokers were permitted to smoke in their apartments for as long as they stayed in the apartment building 9' According to the building's manager, this approach has caused some enforcement dim culties. The manager reported that some new tenants were confused as to why they were required to comply with the smoke-free policy when existing tenants were permitted to smoke. Iin a few instances management or tenants believed that a new tenant was slMoling in violation of the ban but were unable to prove it. Overall, however, , the manager reported that tenant response to the new smoke-free policy is positive. 93 Conclusion We owe our elderly, our children, and those with chronic illness a safe shelter that does not include secondhand tobacco smoke. When we adopt a smoke-free policy, we have a rare opportunity to do what is right while saving money and preventing lawsuits. It is not only legal to prohibit smoking 10 secondhand smoke. The change to smoke-free status in multi -unit affordable housing can take place at the time of lease renewal or after legally adequate notice. Public housing directors from the twenty-nine Moving to Work program sites are urged to make the change as part of the public housing lease rather than though house rules. Housing directors and project -based Section 8 housing providers can adopt the change through house rules and possibly through a change in the lease. Providers of voucher—based Section 8 housing can either mare a rules change or change the lease, as long as subsidized and non -subsidized tenants are treated equally. Affordable housing providers are urged to join the growing smoke-free movement within the multi- unit housing market. Smoke-free housing should not be a right reserved only for the rich. About the Author Susan Schoemuarklin is a Consulting Attorney for the Smoke-free Environinents Law Proj cet. Acknowledgements The author would like to thank Sara Guardino of the Public Health Advocacy Institute, Jim Bergman of the Smoke-Frce Environments Law Project, Warren Ortland at the Public Health Law Center, and Kerry Cork at the Tobacco Control Legal Consortium and Public Health Lau? Center for reviewing this synopsis.