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

 

A. Property managers have found that no-smoking policies protect their property from damage such as 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 are good health business since they reduce people’s exposure to tobacco smoke. No-smoking policies are becoming a big selling point for renters since nearly 83% of all adults in Colorado do not smoke.

 

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

 

A. Hundreds of multi-unit residential buildings in Colorado of various types are now smoke-free, and the number is increasing monthly. Many of these communities are administered by public housing authorities or are HUD-subsidized Section 8 project-based properties. The current list is posted at www.mysmokefreehousing.com.

 

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

 

A. A legal analysis of federal and state laws, HUD rules, and legal cases found "unequivocally that a ban on smoking for new residents who move into public or Section 8 housing is permissible in all 50 states."[1] In addition, Colorado’s Clean Indoor Air Act allows property owners to make any part of their property non-smoking and requires that all common areas in multi-unit residences be smoke-free. Local laws that are more stringent take precedence.[2]

 

An October 2007 memo from Marcie D. LaPorte, Director, Denver multifamily hub of HUD, states, “Currently, there are no statutory or regulatory provisions governing smoking in Section 8 project-based subsidized properties. Owners of such properties are required to comply with applicable state and local laws, which would include any laws governing cigarette smoking in residential units and in common areas. However, owners may adopt reasonable house rules that are related to the safety and habitability of the building and comfort of the residents. It is at the owner's discretion to determine if a smoke-free policy would be applicable to their property, as long as they adhere to state and local laws.” This statement can also be found in the HUD handbook 4350.3 Rev-1 under the House Rules 6-9, pages 6-19.

 

Q. Can no-smoking policies be grandfathered in?

 

A. HUD’s policies do not require the grandfathering of any resident[3], and local and state laws in Colorado do not appear to address the issue of grandfathering. Numerous HUD-subsidized properties in Colorado have grandfathered in current residents that smoke in their units for up to three months to a year. Most also require all new residents to abide by a no-smoking rule.

 

Following legally adequate notice, 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, according to the Smoke-Free Environments Law Project. Grandfather clauses should never be longer than one year. 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. In addition, some new residents may be confused as to why they are required to comply with the smoke-free policy when existing residents are permitted to smoke. An attorney should be consulted regarding the best way to provide notices to residents and a timetable for implementation.

 

Q. Can smoking units be sealed so that tobacco smoke does not spread to other units?

 

A. Secondhand smoke does not respect boundaries; it seeps through light fixtures, attics, plumbing, and doorways into all areas of a building.[4] Air-quality studies in apartment buildings in Chicago revealed that 60% of the air in apartments comes from other units.[5] If a no-smoking policy is made on a unit-by-unit basis, then the health of residents who are affected by tobacco-smoke seepage into their units will not greatly improve. Those residents should not have to wait for every smoker to leave or die to be able to breathe clean, smoke-free air in their own homes.

 

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. What documents are needed to prepare to incorporate a no-smoking policy?

 

A. There are two basic options for project-based communities. It is recommended that the documents be signed as they will have a better chance of standing up in court and help enforce the policy. The options are:

 

1) HUD approval is not needed to incorporate a no-smoking policy as a house rule unless it is part of an addendum to the lease. The Smoke-Free Environments Law Project (SFELP) provides a model policy that has been used to implement house rules or an addendum to the lease. Under the SFELP house-rule model policy, residents are told that they need to sign the policy. If a resident receives an exemption that allows them to continue smoking until lease renewal, then they also have to sign a form saying they understand it is temporary. The form also indicates that a violation of the policy can be grounds for eviction.

 

2) HUD approval is required when the policy is an addendum to the lease or when the house rules are made part of the addendum to the lease. HUD Denver suggests that house rules be made part of the addendum to the lease. Any sort of addendum to a lease would need to go through the contract administrator at the Colorado Housing and Finance Association (CHFA) and then sent to HUD Denver for approval.  HUD Denver’s process usually takes no longer than 30 days. Lease and house rule regulations are covered in the HUD handbook 4350.3, Chapter 6.

 

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. Photos and property descriptions can also be posted for a small fee. Residents can search for housing by city or by name. The site has hundreds of properties currently listed.

 

Q. How are no-smoking rules enforced?

 

A. According to the National Apartment Association, "Few owners experience backlash from residents after implementing and enforcing a no-smoking policy.” However, a variety of strategies can be used to help enforce no-smoking rules, such as:

 

• Using advertising to attract residents who want to live in a clean air environment.

 

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

 

• Posting signs in the building and on the property. Free signs are available through www.gaspforair.org and www.steppitems.com.

 

• Putting the no-smoking rules in the lease agreement and reviewing 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. Inform the residents that this could cost thousands of dollars. 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 100 housing authorities across the country 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. These rules are provided in the HUD Handbook 4350.6, Chapter 8. According to some housing authorities, eviction may be avoided by informing the resident about the consequences of violating a lease, that 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. A no-smoking rule is not discriminatory. Smoking is a behavior that people are not born with. Many people smoke, so prohibiting smoking does not target any particular group. A no-smoking rule does not mean a proprietor cannot rent to smokers; they just have to take it 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 inside the entire building. 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 a local District Attorney. To be listed in Colorado’s Guide to Smoke-Free Housing at www.mysmokefreehousing.com, the property must be entirely smoke-free inside.

 

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

 

For additional information contact:

© GASP of Colorado (Group to Alleviate Smoking Pollution)

303-444-9799

 

www.mysmokefreehousing.org

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

 

Portions of the text of this paper have been copied or paraphrased based on materials developed by the American Lung Association in Oregon (www.smokefreeoregon.com) and the Smoke-Free Environments Law Project in Michigan (www.tcsg.org/sfelp/home.htm). Tobacco prevention funds were not used by GASP of Colorado to develop this paper. GASP would like to thank the following individuals who volunteered their time to review this document: Chuck Schloz, Operations Manager, Boulder County Housing Authority; Warren Ortland, Staff Attorney, Tobacco Law Center, Minnesota; John Tuchscherer, Housing Programs Manager, Fort Collins Housing Authority; Monica Slamkowski, Community Administrator, Village at the Bluffs (a project-based Section 8 community); Susan Sobkoviak, Program Specialist, Jefferson County Dept. of Health and Environment; Jennifer Kovarik, Boulder County Public Health; and Mollie Newman, professional proofreader.