Clearing the Air: Legal Aspects of Smoke-free Affordable Housing

Debra KelleyAmerican Lung Association of California

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Disclaimer This presentation is not offered or intended

as legal advice. It is created to provide general information only.

It does not address the specific legal requirements affordable housing providers may have to follow should they choose to implement a smoke-free housing policy.

Attendees should seek the advice of their own attorneys to discuss the legal issues that might arise with a smoke-free housing policy

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86% of adults do not smoke70% of low income adults do not smoke93% of seniors do not smoke

California Dept of Health Services Adult Smoking Survey 2005

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10%-30% of tenants in affordable housing have asthma, emphysema or heart disease.

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January 2006, the Air Resources Board declared secondhand smoke to be a toxic air contaminant

Requires additional smoke-free protections to be enactedIncreases owner liability for knowingly exposing tenants

to toxic air contaminant Provides a basis for treating tobacco smoke as a

nuisance Creates a significant change of circumstances that allows

for greater flexibility in changing lease terms

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Smoke-Free Tenants and/or Smoke-Free Rules: Your Choice

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It’s legal to rent only to non-smokers.

It’s legal to make all or part of a rental property smoke-free.

Navigating the Legal MazeIs there a right to smoke?Do smoking restrictions

invade a tenant’s right to privacy?

Is a no-smoking policy discrimination?

How do disability laws apply?

What about enforcement?

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There is No Right to SmokeSmokers are not a “protected class” such as

race or genderJust as employers can hire only non-smokers,

so landlords can rent to only non-smokersNo-smoking policies are the legal equivalent

of other rental restrictions like: “no pets” or “no loud music” rules.

Making apartment buildings, including rental units smoke-free is not discrimination.

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Smoking Restrictions do Not Invade a Tenant’s Right to Privacy

The Supreme Court has recognized a constitutional right to privacy – but it is limited to protecting decisions about family relationships and family planning, such as marrying, having children and educating them

Courts have found that the “right to privacy” does not include smoking – even in one’s own home

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No-Smoking Policies are Not Discriminatory

It is NOT a violation of anti-discrimination laws to prohibit smoking in multi-unit housing

Can’t discriminate based on a person’s race, religion, gender or ethnicity

Smokers are not a specially protected group

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Disability laws may come into play

THEN the tenant may be entitled to a “reasonable accommodation” such as:Prohibiting smoking in common

areasMoving tenant to another unitMaking physical modifications to

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Tenants with a disability have special rights. IF a tenant’s disability is made worse by exposure to secondhand smoke…asthma or severe respiratory problems…

EnforcementPeople who smoke in California are

used to obeying smoke-free rules, and more than 90% do so voluntarily. Signage and clear communication are vital to achieving excellent compliance.

If you create an outdoor designated smoking area, locate it away from areas where tenants or staff congregate or pass by.

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Enforcement Voluntary Smoke-Free PoliciesFederal and state laws already permit apartment owners

to adopt smoke-free policies.“No smoking” policies are reasonable measures to

protect life and property.Provide at least 30 days (60 or 90 days is even better)

advance notice of rule changes. Smoking restrictions should be included in the lease or

house rules, and landlords should enforce violations of the no-smoking policy the same way as a violation of any other rule.

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Enforcement Legislated Smoke-Free PoliciesSmoke-free laws affecting multi-unit housing are

already in place here in San Diego county! More state and local laws are coming, so be prepared.

Include a clause in the lease requiring tenants to obey all applicable laws (standard language is available from the San Diego County Apartment Association ). Then enforce violations of smoke-free laws the same way you enforce violations of other laws.

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Enforcement Legislated Smoke-Free Policies (continued)

If the lease does not include a standard clause about applicable laws, you can ask tenants to comply with a law, but cannot evict them for failing to do so.

Every smoke-free law is different. Contact the jurisdiction if you have any questions about your responsibilities. Or, go to the SmokeFreeSanDiego.org website.

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Affordable Housing

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Finding your way through the legal maze

Tax Credit for Affordable HousingThe California Tax Credit Allocation

Committee assigns points on the tax credit application of affordable housing developers.

For example points are given for: Energy and water conservation, child

care in housing for families, use of “green” building materials.

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Tax Credit for Affordable HousingIn January 2006, the Allocation Committee

added a one-point option to the menu for providing smoke-free sections, buildings or projects.

To get the Tax Credit Point:

Non-smoking sections must consist of at least half (50%) of the units within the building and those units must be next to each other.

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What Can Affordable Housing Landlords Legally Do?Apartment owners are free under federal law to

make buildings totally smoke-free, so long as they “grandfather” current residents who are smokers. HUD Legal Counsel letter of July, 2003

“Grandfathering” means for a reasonable period, such as until lease renewal.

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Adopt New House RulesTo implement a smoke-free policy ~ add “no

smoking provisions to house rules in public housing authority buildings.

As long as no smoking policies meet the normal house rules criteria – reasonable and fairly applied – HUD approval is not required.

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Adopt New Lease LanguageTo make no-smoking policies a

condition of the lease …

HUD approval is required to the extent that the owner is bound to utilize HUD’s model lease.

Source~ HUD Legal Counsel letter of July 2003

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SmokeFreeSanDiego.org23

The website offers (or will soon offer) the following resources for affordable housing owners/managers, regulators, policy-makers and tenants:

Legal IssuesScience LawsImplementation TipsPublic OpinionResourcesHelp for tenants who smoke

SmokeFreeSanDiego.org24