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HRA - Smoke Free Buildings
Public Health Law Center AT WILLIAM MITCHELL COLLEGE OF LAW Warren Ortland, J.D. Staff Attorney 875 Summit Avenue St. Paul, Minnesota 55105 Tel: 651.290.7539 Fax: 651.290.7515 warren.ortiand@wmitchell.edu wvvw.publichealthlawcenter.org Cassandra liue Smoke Free Carlson, -. L -.. Program Coordinator Hennepin County A 2395 University Avenue West, Suite 310 Saint Paul, Minnesota 55114 email: ccs@ansrmn.org phone: 651.646.3005 x315 fax: 651.646.0142 live Smoke Free c ��f October 12, 2010 RE: Secondhand Smoke Seeping into Multi -Unit Affordable Housing Dear Board Member: Attitudes about smoke-free housing are changing more and more as environments become smoke-free and public housing is leading the way. Often renters presume that apartments are smoke-free when they are looking for a new place live. It is not until they are settled and the scent of cleaning solutions disappear that the lingering odor of cigarette smoke begins to seeps out of the woodwork and walls leaving an apartment reeking of smoke. At that point the tenant has a choice to complain to the property manager or sit quietly and not renew their lease. The dangers of secondhand smoke are no longer speculation. Secondhand smoke is dangerous at any level and travels throughout a building regardless of sealing and ventilation. That is why, last year, the U.S. Housing & Urban Development (HUD) issued a notice to housing authorities strongly encouraging them to implement a smoke-free building policy. Currently, thirty-five housing authorities in Minnesota have a smoke-free policy, nine of which adopted a policy since the HUD Notice protecting an additional 1,710 low income families in their homes. An apartment is one building divided into many units, so there are many spaces between walls, floors, and ceilings, as well as gaps around pipes, electrical conduits, and other structural devices. Air and secondhand smoke travels through these openings and into other units. Sealing is not enough to eliminate the air transfer problem when tested by the Center for Energy & Environment (CEE). It was CEE's conclusion that eliminating smoking is the only way to completely eliminate secondhand smoke transfer and to protect residents from the dangers of secondhand smoke.' Equal Access to Quality Air Both smokers and nonsmokers live in public housing. Public Housing is about seeking housing equity for vulnerable and marginalized populations. Access to decent housing is an essential component of a person's physical and mental health. Everyone should have access to quality -air in their home. Housing that imposes sickness and disease in not acceptable. Tenants in affordable housing have the least amount of choice in housing and mobility to choose market rate smoke- free housing. Highly vulnerable populations who live in public housing are exposed to more secondhand smoke than those living in single family homes. The HUD Notice stresses that exposure especially affects the health of the elderly, the young and those with chronic illnesses such as respiratory infections, asthma, cardiovascular disease and cancer. Nationally, residents between the ages of 0-17 and those over 62 comprise 54% of public housing tenants. Reports from the Centers for Disease Control and Prevention document that children and adults in poor families were more likely to have asthma .Z We need to create policies that protect those residents who are involuntarily taking in secondhand smoke and who are more vulnerable to its health consequences. Why are we compromising the health of those approximately 76%-80% low-income residents in Minnesota who do not smoke?3 The number of nonsmokers who need access to subsidized housing greatly outnumbers the availability of smoke-free public housing options. Being able to live in a smoke-free home should not be an amenity reserved for the affluent. No Right To Smoke It is completely within the State and Federal law for a landlord to prohibit smoke on the property. The Minnesota Freedom to Breathe Act of 2007 prohibits smoking to take place in "common areas" of apartment buildings which includes offices, hallways, laundry rooms, etc.4 The landlord, however, can go beyond this minimum requirement by restricting smoking in individual units, entrances, outdoor pools, playgrounds, and the entire property.4 There is no constitutional "right to smoke". The U.S. Constitution does not extend special protection to smokers.s Smoking is not considered a disability under federal or state law. In fact, prohibiting smoking can protect against lawsuits by tenants with certain disabilities that are exacerbated by exposure to secondhand smoke.6 To be clear, a no -smoking policy does not prevent people who smoke from renting accommodations, does not mean tenants will be evicted because they are smokers, and does not force people to quit smoking. Let Us Help You Live Smoke Free, the smoke-free multi -housing initiative, provides free materials and assistance to all landlords and housing authorities in transitioning to a 100% smoke-free building. Live Smoke Free is funded by a grant from the Minnesota Department of Health and Hennepin County Human Services & Public Health Department to assist Hennepin County housing providers in adopting smoke-free policies. We can help your housing authority at any stage of the policy adoption and enforcement process, through presentations, provision of materials, and legal resources. At last after many years I am so grateful we are a smoke free building. Live Smoke Free has been a wonderful resource for information, building signs, and major support as we proceeded with this venture. It's also great to know we can call you at any time for support. Thank you for all you do to keep our air and buildings free of SMOKE! --Kathy Boesen, HRA Managing Director, Plymouth Towne Square If we can be of any assistance in helping your housing authority implement a smoke-free policy for some or all of your multi -unit residences, please let us know. Sincerely, Cassandra Carlson Stepan, MA Program Coordinator - Hennepin County Live Smoke Free Program (651) 646-3005 ext. 315 ccs@ansrmn.org 'Reduction of Environmental Tobacco Smoke Transfer in Minnesota Multifamily Buildings Using Air Sealing and Ventilation Treatment. Center for Energy & Environment. November 2004 z Pleis 1R, Lucas JW. Summary health statistics for U.S. adults: National Health Interview Survey, 2007. NATIONAL CENTER FOR HEALTH STATISTICS. Vital Health Stat 10(240). 2009. 3 Creating a Healthier Minnesota: Progress in Reducing Tobacco Use. Minneapolis, MN: ClearWay Minnesotan', Blue Cross and Blue Shield of Minnesota, and Minnesota Department of Health; September 2008. ° Minnesota Department of Health Fact Sheet: Freedom to Breathe A summary ofthe Freedom to Breathe Provisions in the Minnesota Clean Indoor Air Act. Minnesota Department of Health. July 2007 nSamantha K. Graff. There is No Constitutional Right to Smoke: 2008. A Law Synopsis by the Tobacco Control Legal Consortium. March 2008. 6 Susan Schoenmarklin. Secondhand Smoke Seepage into Multi -Unit Affordable Housing. A Law Synopsis by the Tobacco Control Legal Consortium. April 2010. A Program of the Association for Nonsmokers —Minnesota k; .M11VNSCD2'e1.S" 2395 University Ave W Ste 310, St. Paul, MN 55114`;'—,.�.E����p Phone 651.mnsm 05 Fax 6 l.�j`Lcl ���`a VISION41N ng.org.0142r,tnt www.mnsmokefreehousing.org tlr''p 73erter Sr<rxe ffl-11h This work was made possible through funding from the Statewide Health hf INNkSOTA SHIP Improvement Program SHIP of the Minnesota Department of Health. For more information, visit http://www.health.state.mn.uslhealthreform/SHIP Liue Smoke Free C � r � c r Today's Date: October 6, 2010 Phase one: Thinking About a Policv ✓ Present potential policy and background information to HRA Board ✓ Conduct a tenant survey & review results—July 2010 ✓ Present to residents the facts about secondhand smoke exposure in multi -unit housing and provide a forum to voice concerns about a potential policy — September 29, 2010 ✓ Re -survey those who attend the tenant presentation —September 29, 2010 o Present survey results and policy recommendations to HRA Board —October 12, 2010 Phase Two: Adopting a Policv o Set a "Smoke -Free Date". This means decide when you would like the building to be completely smoke free and work backward set out steps. o Take inventory of all lease renewals to begin setting up a timeline to meet your Smoke -Free date. o Decide policy details and include this in lease addendum o State policy start date. o Which areas of the property will be covered? o How will the policy be enforced? o Will there be an incentive for residents to sign the smoke-free policy early? o Notify residents of the upcoming policy change through a letter, flyers, and newsletter inserts o Provide a 30 -day opportunity for tenants to review the policy and make written comments on any changes to lease before adoption by HRA. o Give 60 day written notice in advance of effective date o Initiate all new leases with the smoke free policy Phase Three: Implementing a Policy o Implement the smoke-free policy for current residents as lease renewals come up or if tenants sign smoke-free lease addendum early. o May terminate the tenancy if tenant fails to accept lease revision as long as proper notice and time period for acceptance (60 days) is provided. o Also, HRA may terminate tenancy for serious or repeated violation of material terms of the lease. o Send a reminder announcement to residents a few days prior to the policy's implementation. o Take an inventory of your property to determine where signs are needed o Order signs and schedule maintenance to install signs. o Start developing a press release about your new policy (Cassandra has a mock up) o Get approval from City to submit a press release o Post signs in and around the building to remind residents and guests o Coordinate with Cassandra in hosting a smoke-free celebration when all units are finally smoke-free (compliments of Live Smoke Free) o Advertise your smoke-free status in all advertising, City website, and our free online directory. Proposed Timeline: December 1St Notify the residents that the Board approved a smoke-free policy and now is the time for them to review the proposed policy details and provide written comments. January 1" Provide residents written 60 day (in your case.6 months) notice of policy change and an opportunity to sign addendum early if renewal is not up yet. April 1St Policy Start Date for all new residents and early addendum signers. Only those residents who were grandfathered in until lease renewal period are allowed to smoke in their units. June 1St Every lease renewal will need to include a smoke-free addendum. If you have any questions or changes regarding this proposed timeline, please contact Cassandra Stepan at Live Smoke Free. Live Smoke Free Association for Nonsmokers — Minnesota 2395 University Ave W Ste 310 Saint Paul, MN 55114 Phone: 651.646.3005 Fax: 651.646.0142 Email: ccs@ansrmn.org Web: www.mnsmokefreehousing.or -T -rMINNESOTAS SIN rp V /ic;.r, caur.J"1ff:dr: This work was made possible through funding from the Minnesota Statewide Health Improvement Program (SHIP) of the Minnesota Department of Health. Liue Smoke Free wwr+,mhymakefreshauslap,erg, Smoke -Free Policy for Hopkins Housing & Redevelopment Authority To insure that quality of air and the safety of residents in Dow Towers, the Hopkins Housing & Authority has declared that the building located at 22 Fifth Avenue S is a smoke-free building. Smoking is not permitted in any area of the building including apartments [except for residents with temporary exemptions from this policy, as described below]. Smoking is only permitted in specifically designated areas, if any, outside of the building. Adopted: June 1, 2011 Live Smoke Free A Program of the Association for Nonsmokers—Minnesota 2395 University Avenue West, Suite 310 1 St. Paul, MN 55114-1512 Phone: 651-646-3005 1 Fax: 651-646-0142 1 Web site: www mnsmokefreehousing.org This work was made possible through funding from the Minnesota Statewide Health Improvement Program (SHIP) of the Minnesota Department of Health. MINNESOTA'S I SION SHIP rl Szateevrile/-lealrbImprovement Ps•qrn Tetter State o% He-ellb Smoke -Free Housing Policy Hopkins Housing & Development Authority (HRA) October 1, 2010 Page 2 I. Smoking is not permitted anywhere in the building, including apartments, in accordance with the following guideline. Effective on [June 1, 2011], all current residents, all employees, all guests, and all new residents of Dow Towers after this date will be prohibited from smoking anywhere in the building, including in apartment units. [Any current resident as of [June 1, 2011] who smokes must sign and date two (2) copies of the temporary smoking exemption form allowing them to smoke in their apartment. One copy should be returned to the Housing Authority office for placement in resident's file. This exemption will continue only until the date of the resident's lease renewal, at which time the smoke-free policy will also apply to the resident.] 2. [This section applies if exemption policy is provided.] Any resident with an approved exemption must not smoke in any unit other than their own. Any resident with an approved exemption must not allow anyone not on their lease to smoke in their unit at anytime; this includes guests and other residents. 3. Any deviation from the smoke-free policy by any tenant, a member of their household, or their guest will be considered a lease violation. Three (3) violations will result in eviction. 4. "No Smoking" signs will be posted outside and inside the building. 5. Smoking outside the building is limited to the following area(s), if any: [at the picnic tables near Sth Street] 6. If a resident smells tobacco smoke in anyplace in the building, they are to report this to the office as soon as possible. Management will seek the source of the smoke and take appropriate action. 7. [This section applies if exemption policy is provided.] For the health and safety of the Hopkins Housing & Redevelopment Authority employees and their representatives, no resident shall have any type of tobacco or related product burning at such time as any employee or representative of the Hopkins Housing & Redevelopment Authority enters and remains in your apartment unit. If any resident refuses to put out the burning tobacco or related product prior to the employee or representative entering the apartment, or if the resident lights a tobacco or related product while an employee or representative remains in the apartment, the employee or representative shall vacate your apartment immediately and shall not return until such time as there is no longer any tobacco or related product burning. This may result in a delay of services in your apartment. Smoke -Free Housing Policy Hopkins Housing & Development Authority (HRA) October 1, 2010 Page 3 8. New residents will be given two (2) copies of the smoke-free policy. After review, the tenant will sign both copies and return one to the Hopkins Housing & Redevelopment Authority's office. The copy will be in the resident's file. 9. Upon adoption of this policy, all residents presently living in Dow Towers will be given two copies of the policy. After review, the resident will sign both copies and return one to the Hopkins Housing & Redevelopment Authority's office for placement in the resident's file. RESIDENT CERTIFICATION I have read and understand the above smoke-free policy and I agree to comply fully with the provisions of the policy. I understand that failure to comply may constitute reason for termination of my lease. Resident Signature: Apartment Number: Date: 0 Hopkins Housing & Redevelopment Authority TEMPORARY SMOKING EXEMPTION FORM Resident Name: Apartment Number: As a current resident of Dow Towers and a smoker, I am requesting a temporary exemption from the Dow Towers smoke-free policy adopted on [June 1, 2011]. 1 understand that my exemption will only apply to me and not to my guests. I also realize that my exemption will only allow me to smoke in my own apartment or in designated smoking areas outside the building, if any. Further, I understand that should I move to another apartment in the building, or should I leave Dow Towers as a resident and then return as a new resident at a later time, my exemption will be permanently lost. Further, I understand that this exemption is temporary and will expire on the date of my lease renewal, at which time I will be required to adhere to the smoke-free policy adopted on [June 1, 2011]. Resident Signature: Date: [HRA Representative Signature]: Date: U.S. Department of Housing and Urban Development Office of Public and Indian Housing Office of Healthy Homes and Lead Hazard Control SPECIAL ATTENTION OF: NOTICE: PIH -2009- 21 (HA) Regional Directors; State and Area Issued: July 17, 2009 Coordinators; Public Housing Hub Directors; Program Center Coordinators; 2010 Troubled Agency Recovery Center Directors; Special Applications Center Director; Public Housing Agencies; Resident Management Corporations; Healthy Homes Representatives Subject: Non -Smoking Policies in Public Housing Expires: July 31, Cross Reference: 24 CFR 903.7(b)(3) 24 CFR 903.7(e)(1) 1. Purpose. This notice strongly encourages Public Housing Authorities (PHAs) to implement non-smoking policies in some or all of their public housing units. According to the American Lung Association, cigarette smoking is the number one cause of preventable disease in the United States. The elderly and young populations, as well as people with chronic illnesses, are especially vulnerable to the adverse effects of smoking. This concern was recently addressed by the Family Smoking Prevention and Tobacco Control Act, P.L. 111-31, signed by the President on June 22, 2009. Because Environmental Tobacco Smoke (ETS) 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. By reducing the public health risks associated with tobacco use, this notice will enhance the effectiveness of the Department's efforts to provide increased public health protection for residents of public housing. Smoking is also an important source of fires and fire -related deaths and injuries. Currently, there is in Departmental guidance on smoking in public housing. 2. Applicability. This notice applies to Public Housing. 3. Background. Secondhand smoke, which is also known as environmental tobacco smoke (ETS), is the smoke that comes from the burning end of a cigarette, pipe or cigar, and the smoke exhaled from the lungs of smokers. ETS is involuntarily inhaled by nonsmokers, and can cause or worsen adverse health effects, including cancer, respiratory infections and asthma. The 2006 Surgeon General's report on secondhand smoke identifies hundreds of chemicals in it that are known to be toxic. The report (The Health Consequences of Involuntary Exposure to Secondhand Smoke) is located at www.cdc.gov/tob Lcco/d ita statistics/sgr/index.htin Secondhand smoke causes almost 50,000 deaths in adult non smokers in the United States each year, including approximately 3,400 from lung cancer and another 22,000 to 69,000 from heart disease. Secondhand smoke exposure causes disease and premature death in children and adults who do not smoke according to the U.S. Environmental Protection Agency (EPA) www.e-pa.gov/smokefree/healthe 'ects.htrnl. There are over 1.2 million residents who reside in public housing. Residents between the ages of 0-17 represent 39 percent of public housing residents. Elderly residents over the age of 62 represent 15 percent of public housing residents. That accounts for at least 54 percent of public housing residents that could be at increased risk to the adverse effects of cigarette smoking. There are also a considerable number of residents with chronic diseases such as asthma and cardiovascular disease who are particularly vulnerable to the effects of ETS. Secondhand smoke lingers in the air hours after cigarettes have been extinguished and can migrate between units in multifamily buildings. Based on data from the U.S. Fire Administration (USIA) of the Department of Homeland Security, there were an estimated 18,700 smoking -material fires in homes in 2006. These fires caused 700 civilian deaths (other than firefighters'), and 1,320 civilian injuries, and $496 million indirect property damage www.nfpa.org/assets/files/PDF/OS.Smoking.pd In multifamily buildings, smoking is the leading cause of fire deaths: 26 percent of fire deaths in 2005 www.usfa.dhs.gov/downloads/lodf/i)ublications/Residential Structure and Building Fires pdf. 4. Policy Discretion PHAs are permitted and strongly encouraged to implement a nor -smoking policy at their discretion, subject to state and local law. Some 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. According to a state -funded anti-smoking group, the Smoke -Free Environment Law Project of the Center for Social Gerontology, there are over 112 PHAs and housing commissions across the country that have implemented non- smoking policies. PHAs should consult with their resident boards before adopting non-smoking policies at their projects. 5. P_. PHAs opting to implement a non-smoking policy should update their PHA plans. According to 24 CFR 903.7(e), their plan must include their statement of operation and management and the rules and standards that will apply to their projects when the PHA implements their nor -smoking policy. PHAs are encouraged to revise their lease agreements to include the nor -smoking provisions. If PHAs institute nor -smoking polices, they should ensure that there is consistent application among all projects and buildings in their housing inventory in which non-smoking policies are being implemented. 6. Indoor Air Quality (IAQ). According to the U.S. Green Building Council (USGBC), toxin - free building materials used in green buildings help combat indoor air pollution. Good IAQ includes minimizing indoor pollutants. As discussed above, ETS is known to be an indoor air pollutant; as a result it would be difficult for a PHA to achieve good IAQ in its buildings if residents are allowed to smoke, especially indoors. During construction or renovation of projects, PHAs should consider actions such as installing direct vent combustion equipment and fireplaces; providing for optimal, controlled, filtered ventilation and air sealing between living areas and garage or mechanical areas, and the use of paints and other materials that emit no or low levels of volatile chemicals (volatile organic compounds or VOCs). Since 65 percent of the public housing inventory was built prior to 1970, it would be hard for a PHA to implement retrofits that could improve IAQ significantly, unless renovation was scheduled. Also, if a PHA does conduct renovations to improve IAQ without also implementing a nor -smoking policy, the IAQ benefits of the renovation would not be fully realized. A non-smoking policy is an excellent approach for those PHAs that are trying to achieve improved IAQ without the retrofit costs. N, 7. Maintenance. It is well known that turnover costs are increased when apartments are vacated by smokers. Additional paint to cover smoke stains, cleaning of the ducts, replacing stained window blinds, or replacing carpets that have been damaged by cigarettes can increase the cost to make a unit occupant ready. View the Sanford Maine Housing Authority case study at http ://www. smokefreefonne. org/landlord.php?p age=S ave+Money%2C%3 Cbr%3ES ave+Your+B uilding. 8. Smoking Cessation National Support. Because tobacco smoking is an addictive behavior, PHAs that implement non-smoking policies should provide residents with information on local smoking cessation resources and programs. Local and state health departments are sources of information on smoking cessation; see the American Lung Association's (ALA's) Web page on State Tobacco Cessation Coverage www.lun usg a2.org/cessation2 for information on cessation programs, both public and private, in all States and the District of Columbia. The National Cancer Institute's Smoking Quit Line can be called toll-free at 877 -44U -QUIT (877-448-7848). Hearing- or speech -challenged individuals may access this number through TTY by calling the toll-free Federal Relay Service at 800-877-8339. PHAs that implement non. policies should similarly be persistent in their efforts to support smoking cessation programs for residents, adapting their efforts as needed to local conditions. 9. Further Information. For further information related to this notice, please contact Dina Elani, Director, Office of Public Housing Management and Occupancy Division at (202) 402-2071. /s/ /s/ Sandra B. Henriquez Jon L. 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Laws cited are current as of January 2010. The Tobacco Control Legal Consortium provides legal information and education about tobacco and health, but does not provide legal representation. Readers with questions about the application of the law to specific facts are encouraged to consult legal counsel familiar with the laws of their jurisdictions. Suggested citation: Susan'Schoenmarklin, Tobacco Control Legal Consortium, Secondhand Smoke Seepage into Multi -Unit Affordable Housing (2010). In recent years, the smoke-free trend has swept into multi -unit Public housing authorities and private owners housing as landlords, condominium of affordable multi -unit housing may prohibit owners and housing authorities smoking in individual units. Asmoke-free policy have discovered the health and adopted by a public housing authority or an financial benefits of smoke-free owner of U.S. Department of Housing and Urban multi -unit housing. Public housing Development (HUD) -assisted housing may apply authorities and owners of multi -unit to smokers who already live in the building in subsidized housing have been on the addition to new residents as long as they are given leading edge of this trend. In 2008, "legally adequate" notice. 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 firms 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-free 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 their 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 a smoke-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 common 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 II 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 must follow to enact smoke-free policies legally and provides recommendations on how to enforce such policies. 2 Section I - 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 multi -unit housing units.' In June of 2009, HUD's Office of Healthy Homes and Lead Hazard Control released a strategic plan targeting, among 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.116 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 breathing problems, as well as ear infections.10 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."11 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]."12 A 2009 research study noted as well that low-income and underserved racial and ethnic 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."13 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. 11 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 smoke; more than 75 percent ofAfrican Americans do not smoke; and 85 percent of Hispanics are non-smokers.16 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 apartment adjacent 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 from 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 harmful.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.20 The Harvard study, which examined forty-nine low-income multi -unit residences, detected nicotine in 89 percent of non- smoking homes'studied.21 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." 22 Research demonstrates that up to 65 percent of air can be exchanged between units." The recent HUD Notice cited the problem of secondhand smoke seepage as a reason to adopt a smoke-free 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.1124 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.zs 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?' While air purifiers may reduce smoke odor, they are not designed to remove the toxic particles from tobacco smoke.28 The American Society of Heating, Refrigeration and Air -Conditioning Engineers (ASHRAE), which sets the standard for 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, "[alt ,present, the only means of effectively eliminating [the] health risk associated with indoor exposure is to ban smoking activity."29 Adjusting ventilation, sealing gaps, and other remedial treatments may reduce but not eliminate secondhand smoke exposure.30 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 4 in remediation efforts. "Property managers 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 apartment in a smoke-free community. In addition, about half say that they have moved or would move because of secondhand smoke."31 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.32 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 from smoking kill more people than any other kind of fire. According to statistics from the U.S. Fire Administration (USIA), 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 USIA reports that older residents are at especially high risk for dying in a smoking-related house fire." 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, which 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 ($1,810) 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. 16 According to NMHC, "Some 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. 1138 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 `BTS [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 further 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 housing." Smoke-free policies can help a building earn "Green Building" program credits through programs such as the U.S. Green Building Council's Leadership in Energy and Environmental Design (LEED) program.al- Section II — 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. . ..»45 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 Housing Authority in Florida to ban smoking in its public housing.48 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.50 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 banning smoking."" 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. 1114 - 6 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 II 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 v. 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. 58 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 ofAppeals 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."61 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."" Liability for Failure to Provide Smoke - Free Housing While smokers cannot avail themselves of any legal protection under federal and state disability laws because smoking 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 knowledgeable 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." However, simply showing an adverse health reaction to secondhand tobacco smoke is insufficient proof of a "disability" under the Fair Housing Act (FHA). To use the FHA, the affected person must prove the adverse health reaction substantially limits one or more major life activities64 — which could include things such as breathing, walking or performing manual tasks. A person who merely finds secondhand smoke annoying would likely not obtain FHAprotection.65 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.67 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 III - 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: HUD ... funds a substantial variety of housing programs ... each with its own set of rules as to residency and occupancy. 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 202/811 projects, for example, don't permit modification of the model lease, but a smoke-free policy could be established through the house rules.69 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." Before making a rule change, public housing authorities must provide residents with a 30 -day notice and the opportunity to present written comments.72 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."75 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. s A smoke-free lease provision is clearly permissible for the twenty-nine 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 .1112 Although not a HUD requirement,83 a 2003 letter from the Chief Counsel of HUD's Detroit field office makes it clear that project owners may adopt non-smoking 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.1184 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 form, it must apply to all residents and not just to federally assisted tenants.$' 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."86 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 affinned 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.88 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 term "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 notice.90 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 A the leases are renewable annually, they may be modified at any time by written agreement -91 Implementing a smoke-free policy after the lease's expiration or after providing legally adequate notice makes 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.92 According to the building's manager, this approach has caused some enforcement difficulties. 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. In a few instances management or tenants believed that a new tenant was smoking 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." 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 in public and HUD -assisted housing, but it also protects against lawsuits from tenants exposed to 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 through 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 make 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 v not be a right reserved only for the rich. About the Author Susan Schoenmarklin is a Consulting Attorney for the Smoke-free Environments Law Project. Acknowledgements The author would like to thank Sara Guardino of the Public Health Advocacy Institute, Jim Bergman of the Smoke -Free Environments Law Project, Warren Ortland at the Public Health Law Center, and Kerry Cork at the Tobacco Control Legal Consortium and Public Health Law Center for reviewing this synopsis. Endnotes 1 Nat'l Multi -Unit Housing Council (NMHC), Property Mgmt., Update: No Smoking Policies in Apartments (Feb. 2008) at 1, available at http://www.tcsg.org/sfelp/S-F_NMHC.pdf. 2 Smoke -Free Environments Law Project, Housing Authorities/Commissions which have adopted smoke-free policies, available at hftp://www.tcsg.org/sfelp/SFHousingAuthorities.pdf. 3 U.S. Dep't of Housing & Urban Dev., Non -Smoking Policies in Public Housing, Notice: PIH -2009-21 (HA) (July 17, 2009), available at http://www.hud.gov/offices/pih/publications/notices/09/pih2009-2l.pdf. 4 U.S. Dep't of Housing & Urban Dev., Leading Our Nation to Healthier Homes: The Healthy Homes Strategic Plan (2009) at 7, available at http://www.hud.gov/utilities/interce pt.cfm?/offices/lead/library/hhi/DraftHHStratPlan_9.10.08.pdf. 5 U.S. Dep't of Health & Human Services, The Surgeon General's Call to Action to Promote Healthy Homes (2009), available at http://www.surgeongenera1.gov/topics/healthyhomes/caIItoactiontopromotehealthyhomes.pdf. 6 U.S. DEPT OF HEALTH & HUMAN SERVICES, The Health Consequences of Involuntary Exposure to Tobacco Smoke: Report of the Surgeon General 11 (2006), available at http://www.surgeongeneral.gov/library/secondhandsmoke/ndex.html. 7 Id. at 531. 8 HUD Notice, supra note 3, at 2. 9 Id. at 1. 10 Joseph DiFranza et al., Prenatal and Postnatal Environmental Tobacco Smoke Exposure and Children's Health, 113 PEDIATRICS (4 Supp.) 1007-15 (2004). 11 HUD Plan, supra note 4, at 4948. 12 HUD Notice, supra note 3, at 2. 13 Tiffany Kraev, Gary Adamkiewicz, S. Katherine Hammond et al., Indoor Concentrations of Nicotine in Low-income, Multi -Unit Housing: Associations with Smoking Behaviours and Housing Characteristics, 18 TOBACCO CONTROL 438 (2009) available at hftp://tobaccocontrol.bmi.com/content/18/6/438.full.pdf. 14 Amy Helburn, Asthma Regional Council of New England, Health Resources in Action, A Case for Smoke-free Housing, at 6 (2007), available at http://www.hria.org/uploads/reports/HRIA-Smoke_Free_Housing_2007.pdf. 15 U.S. Dep't of Health & Human Servs., Centers for Disease Control and Prevention, National Center for Health Statistics, Vital and Health Statistics, Summary Health Statistics for U.S. Adults: National Health Interview Survey, 2006, Series 10, Number 235 Table XV p. 135 (Dec. 2007). 16 See U.S. Dep't of Health and Human Servs., Centers for Disease Control and Prevention, Cigarette Smoking Among Adults and Trends in Smoking Cessation — United States, 2008, 58 MORBIDITY AND MORTALITY WEEKLY REPORT 44,1227-32 (Table) (2009). 17 Smoke -Free Rental Housing in the Portland Metropolitan Area, 2009 Benchmark Research Summary Report, at 14 (2009), available at http://smokefreeoregon.com/housing/whats_new/2009percent20Benchmarkpercent20Portland- Vanco uverperc ent20Renterpercent2OSurvey. pdf. 18 Id. 19 Helburn, supra note 14, at 25. 20 Kraev, supra note 13, at 438, 21 Id. at 442. 22 Id. at 443. 23 National Center for Healthy Housing, Reasons to Explore Smoke -Free Housing, at 2 (2009), available at hftp://www.nchh. org/Portals/0/Contents/Greenpercent20Factsheet_Smokefree. pdf. 24 HUD Notice, supra note 3, at 1. 25 Id. 26 2006 Surgeon General's Report, supra note 6, at 632-33. 27 Id. at i. 28 National Center for Healthy Housing, supra note 23, at 2. 29 Am. Society of Heating, Refrigerating and Air -Conditioning Engineers, Inc., Environmental Tobacco Smoke Position Document, at 1 (2008), available at http://www.ashrae.org/docLib/2O090120_POS_ETS.pdf. 30 Susan Schoenmarklin, Tobacco Control Legal Consortium, Infiltration of Secondhand Smoke into Condominiums, Apart- ments and Other Multi -Unit Dwellings: 2009 (2009), at 4. available at hftp://tcIconline.org/documents/lnfiltration.pdf. This publication also contains a more detailed discussion of remedial treatments. 11 31 NMHC Update, supra note 1, at 2. 32 National Center for Healthy Housing, supra note 23, at 1. 33 Dept of Homeland Security, U.S. Fire Administration, Residential Structure and Building Fires (2008), available at www. usfa.dhs.gov/downloads/pdf/publications/Residdntial—Structure_and_Building_Fires.pdf. 34 Dep't of Homeland Security, U.S. Fire Administration, National Fire Data CanterCenter, Fire and the Older Adult 1 (2006), available at www.usfa.dhs.gov/downloads/pdf/publications/fa-300.pdf. 35 NHMC Update, supra note 1, at 2. 36 National Center for Healthy Housing, supra note 23, at 2. 37 NMHC Update, supra note 1, at 2. bacco Smoke, 67 OCCUPATIONAL HEALTH &SAFETY 12, 22 (1998). 38 Jeff Burton, Controlling Environmental To 39 HUD Notice, supra note 3, at 2. 40 National Center for Healthy Housing, supra note 23, at 2. 41 Id. 42 See NMHC Update, supra note 1, at 1. Cont43 See David Ezra, Ge Your Ashes out of M Livinhis g drew therolainng C°onclusionbacco mwith respeoke in ct to l ail providers of rental 54 RurGERs L. REv. housing. 44 See Samantha K. Graff, Tobacco Control Legal Consortium, There is No Constitutional Right to Smoke: 2008, 5 (2d ed. 2008), available at http://tciconline.org/documents/constitutional-right.pdf. 45 Letter from Sheila Walker, Chief Counsel, U.S. Dep't of Housing & Urban Dev., Detroit Field Office to James Bergman, J.D., Co -Director, Center for Social Gerontology, Inc., at 2 (July 18, 2003), available at http://www•mismokefreeapartment. org/hudletter.pdf. 46 Letter from Stephen Gronewold, Chief Counsel, U.S1Nill'amoMHousing College of Law, Minneapolis Field Office to Warren Law, at 1 (Aug. 1, 2007), available of Ortland, Staff Attorney, Public Health Law Center, http://www•alamn.org/smokefreehousing/Minneapolis_HUD_Letterl .pdf. 47 Letter from Lana J. Vacha, Director, U.S. Dep't of Housing & Urban Dev., Detroit Field Office to Roy Struble (Jan. 31, 2007), available at http://www.smokefreeforme.org/documents/hudletter.pdf. Project� alysis of the uthorities and Section 8 Multi -Unit 48 See Smoke -Free Environments Lawat Policies m Their Res'dentialhUnits,oat p. 2,lavvaing illable t http //www.tcsg.org/sfelp/ Housing Owners to Adop _public Selection/Assignment According g2pofcn re Kearney, NebraskalHousing iit n1 to Smoking Preference CmpatbilitY with Tenant Regulatons,, HUD Opon ((Jue 27,1996)Ire City of Fort Pierce, Florida Housing Authority, HUD Opinion (July 9, 1996). 49 See id. at 8, citing In re HU and Kirk 1-0005 370x8 (199g).ment Corp. and Park Towers Apartments, HUD Case No. 05 97-0010 8, 504, Case No 50 U.S. v. Seattle Housing Authority, Col -1133L (W.D. Wa., 2002) (consent decree). 51 HUD Notice, supra note 3, at 2. 52 NMHC Update, supra note 1, at 1. 53 Graff, supra note 44, at 5. 54 Fagan v. Axelrod, 550 N.Y.S.2d 552, 559 (N.Y. Sup. Ct.1990). 55 Fair Housing Act, 42 U.S.C. §§ 3601-3631 (2007). 56 29 U.S.C. § 794. 57 42 U.S.C. §§ 12101-12213 (2008). 58 Brashear v. Simms, 138 F. Supp. 2d 693 (D. Md. 2001). 59 Stevens v. Inland Waters, Inc., 559 N.W. 2d 61 (Mich. App. 1996). The Michigan Supreme Court upheld the lower court decision in Stevens v. Inland Waters, Inc., 568 N.W. 2d 682 (Table) (Mich. 1997). Holdings in employment cases may be used as guidance in housing cases. Pfaff v. U.S. HUD, 88 F. 3d 739, 745 n. 1 (9th Cir. 1996). 60 Stevens, 559 N.W.2d at at 65. 61 Id. 62 Ezra, supra note 43, at 181. taild 63 NMHC Update, supra (note n .F multi -unit housing, acluding gloss ble opt onsof efor a useo ( ommodat on, readers should consult protect a non-smoker g the fact sheet How Disability Laws Can Help Tenants Suffering from Drifting Tobacco Smoke, available on the Technical 12 Assistance Legal Center website at http://www.phIpnet.org/tobacco-control/products/disabilitylawsdriftingsmoke. Additionally, The Federal Fair Housing Act and the Protection of Persons Who are Disabled by Secondhand Smoke in Most Private and Public Housing, available on the website of the Smoke -Free Environments Law Project at http://www. tcsg.org/sfelp/fha_01.pdf, gives a step-by-step guide on the procedure for making an FHA claim. For recommendations on reducing secondhand smoke transfer, see Canada Mortgage and Housing Corp., Solving Odour Transfer Problems in Your Apartment (Dec. 2006), available at http://www.cmhc-schl.gc.ca/en/co/reho/reho_002.cfm. The Tobacco Control Legal Consortium law synopsis Infiltration of Secondhand Smoke into Condominiums, Apartments and Other Multi -Unit Dwellings: 2009 provides information on remedies for secondhand smoke exposure available through the courts under various common law theories and a listing of successful cases (see Schoenmarklin, supra note 30.). 64 42 U.S.0 § 3602(h). 65 See Schoenmarklin, supra note 30, at 9. 66 A 2003 Massachusetts case is instructive. Analyzing a Massachusetts civil rights law modeled after the ADA, the state's Superior (trial) Court ruled that a plaintiff who claimed fatigue and itchy eyes when exposed to secondhand smoke did not qualify for protection from secondhand smoke as a disabled person. See Donnelley v. Cohasset Housing Authority, No. 0100933, 2003WL 21246199 at *10-11 (Mass. Super. 2003). While not controlling outside of Massachusetts, this ruling exemplifies the high standard plaintiffs may need to meet to show that their sensitivity to secondhand smoke substantially limits a major life activity. 67 Joint Statement of the Dep't of Housing & Urban Dev. and the Dep't of Justice: Reasonable Accommodations Under The Fair Housing Act, at 7 (2004), available at www.hud.gov/offices/fheo/library/huddojstatement.pdf. 68 Residents who qualify as "disabled" under the FHA would be entitled to "reasonable accommodations" in the public areas of the complex, under Title III of the ADA, which protects the disabled in "public accommodations." See Garza v. Raft, 1999 WL 33882969, at "3 (N.D. Cal. 1999) (holding that the FHA applies to common areas of residential complexes). But see Birke v. Oakwood Worldwide, 169 Cal.App.4th 1540, 1553 (Cal.App. 2 Dist. 2009) (holding that apartment and condominium residents, regardless of whether they qualify as "disabled," do not have a cause of action for ADA violations because private residential facilities do not constitute "public accommodations" covered by the Act). 69 Gronewold Letter, supra note 46, at 1. 70 Walker Letter, supra note 45, at 2. 71 Office of Public and Indian Housing, U.S. Dept of Housing & Urban Dev., Public Housing Occupancy Guidebook, Part 5 - Chapter 17 General Public Housing Lease Requirements, at 190, 205 (2003), available at http://www.hud.gov/offices/ pih/programs/ph/rhiip/phguidebook.cfm. 72 Id. at 190: 73 Id. at 189-90. 74 Smoke -Free Environments Law Project, Analysis, supra note 48, citing May 25, 2005 conversation with Harlan Stewart, HUD Office of Public Housing, Seattle. 75 HUD Notice, supra note 3, at 2. 76 U.S. Dep't of Housing & Urban Dev., HUD Occupancy Handbook, p. 6-26 (2007), available at http://www.hud.gov/ office s/adm/hudclips/handbooks/hsgh/4350.3/43503c6HSGH.pdf. 77 The twenty-nine housing authorities participating in the program are: Alaska; Atlanta, GA; Baltimore, MD; Boston, MA; Cambridge, MA; Chicago, IL; Charlotte, NC; Delaware; D.C.; Keene, NH; King County, WA; Lawrence -Douglas County, KS; Lincoln, NE; Louisville, KY; Massachusetts; Minneapolis; New Haven, CT; Oakland, CA; Philadelphia, PA; Pittsburg, PA; Portage, OH; Portland, OR; San Antonio; San Bernardino, CA; San Diego; San Mateo, CA; county counties of Santa Clara and San Jose, CA; Seattle, WA; Tulare, CA; and Vancouver, WA. The list of current Moving to Work states can be found at: http://www.hud,gov/offices/pih/programs/ph/mtw/contact-list.pdf. 78 Moving to Work is a federal program that was authorized under the Omnibus Consolidated Recissions and Appropriations Act of 1996 (Public Law 104-134, 110 Stat 1321), April 26, 1996. See U.S. Department of Housing and Urban Development, Moving to Work (MTW) Background and Purpose, available at http://www.hud.gov/offices/pih/programs/ ph/mtw/background. cfm. 79 Seattle Housing Authority Memorandum to Board of Commissioners in Re Resolution No. 4600, at p. 2 (May 21, 2001). 80 HUD Occupancy Handbook, supra note 76, at 6-4. 81 Id. at 6-27. 82 Id. 83 Vacha Letter, supra note 47 (although "several housing authorities and private landlords [in Michigan] have voluntarily adopted smoke-free policies for their HUD -assisted developments," such policies were "[plresumably ... a result of concerted efforts by residents" and not a HUD requirement.) 13 84 Walker Letter, supra note 45, at 2. 85 Office of Public & Indian Housing, U.S. Dept of Housing & Urban Dev., Voucher Program Guidebook, Housing Choice, Chapter 8: Housing Search and Leasing, 8-21 (2001), available at http://www.hud.gov/offices/adm/hudclips/ guidebooks/7420.1OG/7420g08GUID.pdf ("if the owner uses a standard lease form for rental to unassisted tenants, that lease form is used for the assisted unit as well'). 86 HUD Notice, supra note 3, at 2. 87 Gronewold Letter, supra note 46, at 1. 88 Smoke -Free Environments Law Project, Analysis, supra note 48, at 7, citing October 13, 2004 letter from John Meyers, HUD Regional Director, Seattle office. 89 Walker Letter, supra note 45, at 2. 90 Smoke -Free Environments Law Project, Analysis, supra note 48, at 7, citing personal conversation with Sheila Walker, May 20, 2005. 91 24 CFR Part 966.4 (a)(3). 92 Smoke -Free Environments Law Project, Analysis, supra note 48, at 8, citing In re HUD and Kirk and Guilford Management Corp. and Park Towers Apartments, HUD Case No. 05-97-0010-8, 504, Case No. 05-97-11-0005-370 (1998). 93 Id. at 8-9, citing Smoke -Free Air for Everyone (S.A.F.E.), Smoke -Free Affordable Housing Compliance Survey, March 2004. 14 About the Tobacco Control Legal Consortium The Tobacco Control Legal Consortium is a network of legal programs supporting tobacco control policy change throughout the United States. Drawing on the expertise of its collaborating legal centers, the Consortium works to assist communities with urgent legal needs and to increase the legal resources available to the tobacco control movement. The Consortium's coordinating office, located at William Mitchell College of Law in St. Paul, Minnesota, fields requests for legal technical assistance and coordinates the delivery of services by the collaborating legal resource centers. Our legal technical assistance includes help with legislative drafting; legal research, analysis and strategy; training and presentations; preparation of friend -of -the -court legal briefs; and litigation support. Tobacco Control #>> Legal Consortium 875 Summit Avenue • St. Paul, Minnesota 55105 www.tciconline.org • tobaccolaw@wmitchell.edu • 651.290.7506 Smoke -Free Apartments: Liue Smoke Free Healthier Buildings, Happier Tenants, A Smart Investment. Free Resources To Make Your Building Smoke Free Consultations for Landlords. Legal Resources & Information Tenant Survey to Gauge Interest Sample Lease Addendum & Tenant Notification Letters Smoke Free Signage Online Directory Listing Strategies for Advertising Lwww.mnsmokefreehousing-org] MINNESOTA S !iISION Better Stc62e Of Health st.,a...... le E<e" SHIP This work was made possible through funding from the Statewide Health Improvement Program (SHIP) of the Minnesota Department of Health. Liue Smoke Free j�moe Secondhand Smoke is Dangerous • In 2005, 581 Minnesota infants and adults died from exposure to secondhand smoke. (BlueCross BlueShield of Minnesota) • Secondhand smoke can cause emphysema, asthma, pneumonia, lung cancer, chronic bronchitis, and heart disease. (U.S. Centers for Disease Control) • According to the U.S. Surgeon General, there is no risk-free level of secondhand smoke. (2006 Surgeon General's Report) The Market for Smoke -Free Housing A study by Wilder Research and Live Smoke Free (2009): • Over 30% percent of Twin Cities renters report that smoke gets into their unit at least a few times a month. • Nearly 50% of those experiencing smoke say it bothers them "a lot" and 33% say it is so bothersome that they have thought of moving to avoid the smoke. • Over 50% of renters are "extremely" or "very" interested in living in a smoke-free building. • Many renters would pay more rent and make other sacrifices such as walking farther to a bus stop or driving farther to work if they could live in a smoke-free building. The Benefits of Smoke -Free Multi -Housing • Reduced costs: Cleaning costs are lower when units don't have the smell of smoke, cigarette burns, or smoking residue. • Fewer fire risks: Smoking-related fires are deadly and costly. Smoke-free policies eliminate the source of smoking-related fires. • Smoke-free policies are legal: A building owner/manager can legally make a rental building—including individual units or the entire property -100% smoke free. The Live Smoke Free program promotes smoke- free policies for apartment buildings. Currently, tenants seeking smoke-free multi -unit housing largely outnumber the amount of smoke-free units available. In order to increase the number of smoke-free buildings in the Twin Cities, Live Smoke Free educates building owners, managers, local policy makers, tenants, and housing industry professionals about the benefits of smoke-free buildings. Live Smoke Free assists building owners and managers with creating and promoting a smoke-free policy for their property. The program also assists tenants in finding solutions to secondhand smoke problems. Tenants can learn how to talk to their landlord about creating a smoke-free policy for the building. Live Smoke Free is a program of the Association for Nonsmokers—Minnesota that focuses on the Twin Cities metro area with grant funding from the Statewide Health Improvement Program (SHIP) of the Minnesota Department of Health. Contact Live Smoke Free: 2395 University Ave West, Suite 310 St. Paul, MN 55114-1512 Phone: 651.646.3005 Fax: 651.646.0142 Web: www.mnsmokefreehousing.org Funded by the Statewide Health Improvement Program MINNESOTsS S V�9I©N � SHIP Statewide Heakh In:pravonerstBetsey Stase of Health Member of the Minnesota Member of the Minnesota Chapter of Multi -Housing Association M-�A NAHRO