Can Project-Based Section 8 HUD Communities Adopt No-Smoking Policies?

 

This fact sheet is provided as a public service and is not intended as legal advice.

Please consult an attorney before implementing a no-smoking policy.

 

Q. Can a no-smoking policy be implemented in a HUD-subsidized Section 8 property?

 

A.  HUD “strongly encourages Public Housing Authorities (PHAs) to implement smoke-free policies in some or all of their public housing units.”  Notice in notice H2010-21 covers multifamily, Section 8, and rural housing coordinators.  PIH-2012-25 covers the directors and coordinators of public housing.

 

The Colorado Clean Indoor Air Act allows landlords to make any part of their property non-smoking in section 25-14-206 (1) and prohibits smoking (including marijuana) in all indoor common areas in section 25-14-204 (p & u).

 

Q. Have other project-based Section 8 properties in Colorado adopted no-smoking policies?

 

A. More than 2,500 multiunit residential buildings in Colorado of various types have instituted no-smoking policies covering their entire buildings.  This includes more than 100 Section 8 properties and Public Housing Authorities.  A statewide list of properties with no-smoking rules is maintained by GASP of Colorado at mysmokefreehousing.com.

 

Q. What is required by HUD to incorporate a no-smoking policy in multifamily, rural, and Section 8 communities? 

 

A. HUD notice H2010-21 issued September 15, 2010 says:

 

O/As choosing to implement a smoke-free housing policy must update their House Rules and Policies and Procedures, as applicable, to incorporate the smoke-free housing requirements. O/As are encouraged to establish smoke-free policies that pertain specifically to their building and grounds including any common areas, entryways, openings to the building (e.g. windows), and/or playground areas.  In carrying out any smoke-free housing policy, O/As must comply with all applicable fair housing and civil rights requirements in 24 CFR 5.105, including, but not limited to, the Fair Housing Act; Title VI of the Civil Rights Act of 1964; Section 504 of the Rehabilitation Act of 1973; Title II of the American Disabilities Act; Section 109 of the Housing and Community Development Act of 1974.

 

For implementation

 

O/As must implement any new smoking-related House Rules in accordance with HUD Handbook 4350.3 REV-1, Occupancy Requirements of Subsidized Multifamily Housing Programs, paragraphs 6-9 and 6-12.

A. New admissions. O/As are required by existing HUD policies to provide the House Rules to all new tenants.

B. Existing tenants. O/As must notify existing tenants, who have completed their initial lease term, of the modifications to the House Rules 30 days prior to implementation. Notification is accomplished by forwarding a copy of the revised House Rules to existing tenants. For those tenants who have not yet completed their initial lease term, the owner must provide the tenant with 60 days notice, prior to the end of their lease term, of the change in the House Rules.

 

Requirements for implementing smoke-free housing rules

 

O/As who choose to establish smoke-free housing policies may establish policies that allow smoking in individual units but prohibits smoking in all common areas or policies to create a totally smoke-free property.

A. The O/A’s policies must:

 

1. Be in accordance with state and local laws.

 

2. Address smoking in a tenant’s unit, common areas, and playground areas, areas around any exterior window or door, and areas outside a tenant’s unit.

 

3. Designate specific smoking areas and identify these areas with clear signage unless the O/A establishes a totally smoke-free policy.

 

B. The O/A must not have policies that:

 

1. Deny occupancy to any individual who smokes or to any individual who does not smoke who is otherwise eligible for admission.

2. Allow the O/A to ask at the time of application or move-in whether the applicant or any members of the applicant’s household smoke. However, if the O/A has established a smoke-free building as of a certain date, the O/A must inform applicants after that date that the building is a totally smoke-free building. The O/A must not maintain smoking or nonsmoking specific waiting lists for the property.

 

3. Allow the O/A to ask at the time of recertification, whether the tenant or any members of the tenant’s household smoke.

4. Require existing tenants, as of the date of the implementation of the smoke-free housing policies, to move out of the property or to transfer from their unit to another unit.

 

C. Grandfathering

O/As are not required to grandfather current tenants living at their property; however, they do have the option to do so. Such policies must be clearly defined (e.g. whether current tenants are allowed to smoke in their units).

 

D. Non-smoking wings, buildings, floors, or units

O/As are not restricted from establishing smoke-free wings, buildings, floors, and/or units at their property. When a unit becomes available, regardless of where this unit is located, it must be offered to the first eligible household on the waiting list. Waiting lists must be maintained according to existing procedures found in HUD Handbook 4350.3 REV-1.

 

O/As who have already established smoke-free policies may continue to enforce their current policies so long as the policies do not violate state or local laws or any of the above guidance.

 

Sample Policies and Tips

GASP of Colorado provides a model policy that has been used to implement house rules or an addendum to the lease at mysmokefreehousing.org.  There is also a HUD manager’s tool kit available that may be helpful.

 

Q. Can no-smoking policies be grandfathered in?

 

A. HUD’s policies do not require the grandfathering of any resident. Following legally adequate notice of 60 days, it is recommended that a no-smoking policy be Implemented upon lease renewal or on an established policy-change date instead of waiting for residents to move or die.  Numerous HUD-subsidized properties in Colorado have grandfathered in current residents that smoke in their units from three months to a year, and the rules go into effect upon lease renewal. Prolonged grandfather periods defeat the purpose of a smoke-free policy, as individual units are not truly smoke-free until the entire building is smoke-free.  Some residents may be confused as to why they are required to comply with the smoke-free policy when existing residents are permitted to smoke and so long-term policies may lead to friction and distrust of management.  It may also lead to false advertising s or fair housing act complaints. An attorney should be consulted regarding the best way to provide notices to residents and a timetable for implementation.

 

Q. What are the benefits of a no-smoking policy?

 

A. Property managers have found that no-smoking policies protect their property from damage from excessive wear and tear; the costs of cleaning and repairing carpets, fixtures, and window treatments; and the need for priming and painting walls. These policies also help prevent fires, may lower insurance premiums, and reduce resident and staff exposure to secondhand smoke. No-smoking policies are becoming a big selling point for renters since nearly 83% of all adults in Colorado do not smoke.

 

Q. What steps should be taken before implementing a policy?

 

A. Conduct a resident survey, arrange resident meetings, discuss the extent of the policy, and pick a date.   Visit the “Public and Section 8 Housing” section at www.mysmokefreehousing.org for additional implementation tips, sample surveys, a model lease, and other resources.

 

Q. What agencies can provide assistance in making a property smoke-free?

 

A.  Local tobacco-prevention programs may be able to assist property managers with surveys and implementation steps; provide guidance, assistance, or educational materials; and offer smoking-cessation resources.  For further referrals, contact GASP of Colorado (see bottom of this paper). 

 

Q. Can the policy cover the entire grounds, patios, balconies, or designated areas?

 

A. By state law, the policy may cover the entire grounds. Several apartment communities in Colorado have adopted such policies. If smoking is allowed in outdoor designated areas, it is best to limit it to areas that are at least 15 to 25 feet away from any windows, doors, or units.  Smoking should not be allowed on attached balconies or patios, as tobacco smoke will drift into other units. If smoking is allowed outside, property managers may want to consider starting the policy when the weather is warmer to make it easier for people to go outside and smoke.

 

Q. How can a smoke-free property be promoted?

 

A. Property managers can promote their properties free of charge at www.mysmokefreehousing.com. Residents can search for housing by city or by name. The site has more than 2,500 properties listed.

 

Q. How are no-smoking rules enforced?

 

A.  A variety of strategies can be used to help enforce no-smoking rules, such as:

 

• Use advertising to publicize the property and attract new residents.

 

• Talk to prospective residents about the policy when the property is shown.

 

• Post signs in the building and on the property.  Free signs are available through gaspforair.org and cohealthresources.org.

 

• Put the no-smoking rules in the lease agreement and review it when new residents sign the lease.  The rules should include a clause making residents financially responsible for bringing the unit back to condition if they violate the policy by smoking in their units. Also, inform residents of the system of warnings, fines, and evictions for failing to follow the smoking rule.

 

Visiting the properties regularly and performing inspections.

 

Q. Can people be evicted for not following a no-smoking policy?

 

A. More than 30 housing authorities in Colorado have implemented no-smoking rules in one or more of their communities, and the vast majority have not had to evict any residents.  HUD regulations allow residents to be evicted for violating the terms of a lease as provided in the HUD Handbook 4350.6, Chapter 8.  Eviction may be avoided by talking about the consequences of violating a lease, how violations could become part of the resident’s record, and may possibly affect the resident’s ability to find other HUD-subsidized housing.

 

Q. Don't people have the right to smoke in their own dwellings?

 

A. There is no constitutional right to smoke. Smokers are not a protected class and smoking is not a protected activity.  Proprietors generally have the right to set reasonable rules to protect a property.

 

Q. Is a no-smoking rule discriminatory? 

 

A. The imposition of a no-smoking rule does not constitute unlawful discrimination.  People who smoke do not constitute a protected class for purposes of statutory protection.  Such protections are reserved for inherent characteristics, such as race, gender, religion and disability. A no-smoking rule does not mean a proprietor cannot rent to people who smoke; they just have to go outside, which many smokers already do.  In addition, they may also switch to patches, use nicotine gums, or choose to quit smoking altogether.

 

Q. Can people request a reasonable accommodation allowing them to smoke in their unit?

 

A.  Smoking is an addiction that causes death and disease, but it is not a disability under the Americans with Disabilities Act (ADA).  No federal or state court has ever ruled that smoking is a "disability" under the meaning of the ADA. Smoking is a behavior that can be changed; in other words, a smoker can quit if they choose.  It is more likely that nonsmokers who have medical conditions that are worsened by secondhand smoke will make reasonable accommodation requests through the Americans with Disabilities Act or the Fair Housing Act.

 

Q. What kind of assistance is available to help people who want to quit smoking?

 

A. Contact a local health department for smoking-cessation tools.  Another resource is the Colorado Quit Line at 1-800-QUIT-NOW (800-784-8669) or online at www.coquitline.org.

 

Q.  Is it preferable to use “no-smoking” or “smoke-free”?

 

A. “No-smoking” should be used until the rule is implemented.  Using “smoke-free” while smoking is still allowed inside some units could alienate new residents and lead to false advertising complaints with the Better Business Bureau or Fair Housing Act complaints.

 

Once implemented, the Group to Alleviate Smoking Pollution (GASP of Colorado) recommends saying it is a “no-smoking” rule if the policy covers the units, common areas, balconies, attached porches, and 15-25 feet from all buildings. “Smoke-Free” should be used when the policy covers the entire property. These are the standards GASP requires to obtain a free listing in Colorado’s Guide to Smoke-Free Housing at mysmokefreehousing.com.  GASP’s recommendations for the best policy and coverage are posted here.

           

www.mysmokefreehousing.org

All the smoke-free housing resources you need under one roof.