How to Implement and Enforce a Smoke-Free Policy at Your Site

In a proposed rule revealed on Nov. 12, the Department of Housing and Urban Development would require more than 3,100 public housing agencies overseeing 1.2 million units of public housing to go smoke-free within several years. The agencies would have to design policies prohibiting lighted tobacco products in all living units, indoor common areas, administrative offices, and outdoor areas near housing and administrative office buildings. ‘‘We have a responsibility to protect public housing residents from the harmful effects of secondhand smoke, especially the elderly and children who suffer from asthma and other respiratory diseases. This proposed rule will help improve the health of more than 760,000 children and help public housing agencies save $153 million every year in health care, repairs, and preventable fires,’’ stated HUD Secretary Julián Castro.

Several cities have already implemented these policies on their own. In July, the commissioners of Philadelphia’s Housing Authority, where 55 percent of residents were said to favor smoke-free housing, voted unanimously to ban smoking. And housing authorities in Houston and Boston have adopted similar restrictions. In 2012 Boston became the largest U.S. city to ban smoking in its public housing. New York, home to the largest and most complex public housing system, has not.

However, almost concurrent with the HUD announcement, a New York City council member introduced legislation that would forbid New York City residents living in city-subsidized apartments from smoking in their units. For New York City, this is the latest in a series of steps against smoking in the city that began with former Mayor Michael Bloomberg’s initiative to end smoking in bars and restaurants, a ban that went into effect in March 2003. The Bloomberg administration had hoped to go even further in 2012 when it proposed a law that would have forced the owners of residential buildings to develop smoking policies and make them known to prospective buyers and residents. Bloomberg argued that such a statute already had an analog in laws that require owners to alert occupants to lead-paint dangers or a history of bedbugs.

Nevertheless, the law did not pass even though there were compelling reasons to limit smoking in multiple-unit dwellings across the city. A resident survey conducted in 2012 by the New York City Housing Authority found that 24 percent of respondents reported that one household member currently smoked, while 34 percent of households with children reported that asthma had been diagnosed in at least one child at home. Beyond that, although 70 percent said they did not permit smoking at home, over half reported smelling secondhand smoke from a neighbor’s apartment or from the grounds.

In light of all the attention smoke-free policies have been receiving, you might be considering banning smoking at your site to save money and attract responsible residents. We’ll go over the legal implications and benefits of implementing a smoke-free policy at your site. We’ll also cover steps you may take when adopting and enforcing a smoke-free policy.

Smokers Not a Protected Class

Smoking is not a protected activity or right. In all 50 states, an owner may choose to prohibit smoking in individual units as well as in common areas. In fact, owners not only have the right to prohibit smoking, but owners may also be found liable under a variety of legal theories for failure to prohibit smoking when a resident is affected by secondhand smoke.

Over the years, residents have successfully brought claims for secondhand smoke seepage against owners and offending smokers using various common law remedies. Here’s an overview of the legal theories they’ve used.

Breach of the warranty of habitability. In all states, even if owners are not at fault for a problem, they are responsible for ensuring that residential rental properties are fit for human occupancy. The owner in effect makes a “warranty of habitability” to the resident for the life of the lease. Plaintiffs in a secondhand smoke case would argue that the presence of secondhand smoke renders their residence unfit for habitation and constitutes a breach of the lease. The more secondhand smoke exposure affects a resident, the stronger the argument that secondhand smoke is a breach of the warranty of habitability.

Breach of the covenant of quiet enjoyment. Some courts have found that secondhand smoke seepage can constitute a breach of the covenant of quiet enjoyment. The covenant of quiet enjoyment protects a resident from serious intrusions that impair the character or value of the leased premises.

Trespass. Some courts have found that the smoker’s secondhand smoke was “trespassing” on the plaintiff. Trespass is considered to be an improper physical interference with one’s person or property that causes injury to health or property.

However, there is no legal consensus among the states on whether a substance can trespass, and if so, what substances qualify. For example, Alabama courts have found that dust and gas can give rise to trespass, but light and noise cannot. A federal court in New Hampshire questioned whether the spreading of fumes, noise, and light falls within the ordinary meaning of wrongful entry of property under the traditional definition of trespass. Also, state statutes vary in their definitions of “trespass.”

Constructive eviction. An owner’s actions in allowing secondhand smoke seepage to take place could be construed as a “constructive” eviction of a resident. Constructive eviction is defined as an owner’s act of making premises unfit for occupancy, often with the result that the resident is compelled to leave.

Nuisance. Nuisance law may also be applied to the issue of secondhand smoke infiltration. Several courts have ruled that secondhand smoke can constitute a nuisance under common law, which classifies nuisance as anything that substantially interferes with the enjoyment of life or property.

Fair housing. A resident who is sensitive to tobacco smoke could use the federal Fair Housing Act to seek relief from secondhand smoke infiltration. The FHA prohibits discrimination in housing against, among others, persons with disabilities, including persons with severe breathing problems that are exacerbated by secondhand smoke. In addition to the FHA, states have their own antidiscrimination statutes, which may provide additional protections to those experiencing medical difficulties as a result of secondhand smoke seepage.

Simply showing an adverse health reaction to secondhand tobacco smoke is insufficient proof of a “disability” under the FHA. To use the FHA, the affected person must prove the adverse health reaction substantially limits one or more major life activities. To be “substantial,” the impairment must be severe and long term. A substantial impairment could include difficulty breathing or other ailments, such as a cardiovascular disorder, caused or exacerbated by exposure to secondhand smoke. For a person who suffers from such health effects, secondhand tobacco smoke may pose as great a barrier to access to or use of housing as a flight of stairs poses to a person in a wheelchair. A person who merely finds secondhand smoke annoying would probably not obtain protection under the FHA.

If an aggrieved resident successfully proves a disability under the FHA and demonstrates that secondhand smoke exacerbates his disability, the owner must make “reasonable accommodations” in housing to protect the individual from secondhand smoke exposure. Such accommodations 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, in the case of a resident, a transfer to a unit away from the secondhand smoke. The non-smoker may seek to ban smoking in the common areas of the building, if secondhand smoke is seeping from those areas.

Benefits of Building-Wide Ban

The ability to smell what a resident in an adjacent unit is cooking indicates that secondhand smoke could also travel between units. As such, there’s no practical way to prevent secondhand smoke in a building other than by banning smoking within a building. This is confirmed in the 2006 Surgeon General’s Report, The Health Consequences of Involuntary Exposure to Tobacco Smoke, which concluded that there is no risk-free level of exposure to secondhand smoke, and the only way to protect people from the dangers of secondhand smoke is to eliminate the smoke exposure. The report states that eliminating smoking indoors is the only way to fully protect people from the dangers of secondhand smoke because ventilation systems can actually distribute secondhand smoke throughout a building. Conventional air cleaning systems might be able to remove large particles from the air, but they cannot remove the smaller particles and gases found in secondhand smoke.

Other than avoiding lawsuits associated with allowing smoking at your site, there are other benefits with a building-wide smoking ban.

Reduce maintenance costs. It costs a lot more to turn over a smoker’s unit than a nonsmoker’s because smoking can cause extensive damage to apartment units. The smoke can leave sticky particles, residue, and stains on walls, curtains, cabinets, blinds, appliances, and fixtures. Dropped cigarettes and ashes can leave burn damage on tiles, carpets, curtains, countertops, and bathtubs. Smoke odors can remain in carpets, curtains, and walls for a very long time.

Residue, burns, and odors create more work during turnover time, and two to three times higher cleaning costs for owners and managers. For King County Housing Authority in Washington, implementing a smoking ban has resulted in savings of $1,000 to $3,000 to turn over a non-smoking unit compared to a smoker’s unit before the ban was put in place, said Bill Cook, director of Property Management in a presentation given on how they’ve adopted smoke-free policies.

Also, from a marketing standpoint, prospective residents may decide not to rent an apartment if it has been smoked in. Rather than risk feeling ill and having their clothing and furniture absorb the smoke smell, these prospects may decide to look for somewhere else to live.

Reduce risk of fire. Cigarettes left smoldering can cause fires, and cigarette fires cause a significant percentage of fire-related deaths. Cigarettes and other smoking materials are the leading cause of residential fire deaths in the United States. For example, last year, there were more than 26,000 structural fires in New York; among the top five causes of accidental fires investigated by the Fire Department, smoking ranked second. In 2014, a third of the accidental fires investigated by the city related to smoking; the year before, less than a quarter had. Smoke-free policies in apartments reduce the risk of cigarette-related fires, damages, injuries, and deaths by eliminating lighted smoking materials from the interior of the building.

Insurance savings. Make an insurance premium reduction for a smoke-free policy a priority for negotiation with your insurer. Given the risk of property damage associated with allowing smoking at your site, some insurance agencies give a credit or premium reduction to owners if they prohibit smoking in their apartment buildings. You may consider asking your insurance agent if your current policy includes a penalty (explicit or hidden) if you don’t presently have a smoke-free policy in your residents’ leases.

Take Four Steps When Adopting a Smoke-Free Policy

Here are four steps you should take if you decide to ban smoking throughout an entire building at your site, including within units and in common areas.

Step #1: Gather information. To assess or gauge how much pushback there may be among residents to a smoke-free policy, it’s important to conduct a resident meeting or survey. Surveys are also useful tools assess the scope of smoking-related problems that exist at your site. You may find a significant percentage of residents suffer from health problems that are exacerbated by infiltrating smoke. All this information is useful for making the case to residents at large that a smoking ban is a good idea and to have staff support with regard to enforcement when a smoke-free policy is implemented. We’ve developed a Model Form: Distribute Resident Survey to Assess Support for Smoke-Free Policies (link below). With this survey, you’ll gather information about current smoking behaviors in your site’s units, smoking among survey responders, and attitudes toward a smoke-free policy.

With the survey, most likely, you’ll find that a majority of residents support smoke-free policies. The Center for Disease Control and Prevention study based on national survey results estimates that 83 percent of U.S. households have a no smoking policy in their homes, and this has increased significantly over the 10-year period they studied.

When the Duluth Housing and Redevelopment Authority in Minnesota conducted such a survey, it found less resistance to a smoke-free policy than expected. Seventy-eight percent of survey respondents said that they could smell secondhand smoke coming into their unit, that that smoke smell bothered them or made them ill, or that they were worried about health effects of their exposure to secondhand smoke or the exposure of people that they live with. That was a bigger number than was expected, said executive director Rick Ball in a presentation given on adopting smoke-free policies.

Forty-five percent of the respondents said that they or someone they live with suffered from heart disease or a lung condition, such as asthma or emphysema. And 73 percent of the survey respondents preferred a smoke-free building or had no preference.

Step #2: Partner with local health organizations. You should reach out to your local health departments and any other health-related agencies that you have in your area. These organizations can provide many resources to your residents, from providing smoking cessation kits to providing a representative to attend resident meetings and answer health-related questions residents may have. You may find that a number of residents who are smokers feel that they want to quit and have tried on numerous occasions but have not been successful. These residents may need expert guidance.

Partnering with local health groups also emphasizes and helps communicate the fact that your smoke-free policy is targeting smoking behavior or the smoking activity and not the smoker himself. The cessation materials the health groups may provide are to help reduce a smoker’s urge to smoke within the building and to reduce the number of possible violations to the smoke-free policy down the road.

Step #3: Choose implementation method and use smoke-free lease addendum. You can choose to implement your smoke-free policy using the “phase-in” method or the “quit-date” method.

• “Phase-in” method: Begin having new residents who move into the building sign a smoke-free lease addendum or policy immediately. Announce the policy change to current residents and have them sign a smoke-free lease addendum or policy at the time of their lease renewal.
• “Quit-date” method: Decide what date you would like the building to go smoke free. Give your residents notice of the policy change and ask them to sign a smoke-free lease addendum before the policy change. It’s important to note that a resident with an existing lease can refuse to agree to the policy until their lease renews.

Whichever implementation method you choose, be sure to communicate with your residents well in advance about the policy change. Also, you should have the policy in written form. Written policies help managers enforce the smoke-free regulation. It allows all residents and staff to have the same expectations. If a policy is written into a lease addendum and is signed by all residents, site staff will have an easier time handling a violation.

You must incorporate the ban in your lease to implement and properly enforce a ban of smoking at your site. You can’t change the terms of a lease until it expires, but you can attach a lease addendum to your new leases and add one to the leases of renewing residents. Once an implementation method has been chosen, start renewing existing leases and initiate all new leases with a smoke-free lease addendum. We’ve provided Model Lease Language: Use Smoke-Free Lease Addendum to Incorporate No-Smoking Policies into Leases (link below). Your lease addendum, like ours, should do four things:

> Define smoking. You may choose to include e-cigarettes in your policy’s definition of smoking. An e-cigarette is a popular term for any personal vaporizers on the market that deliver a vapor of heated liquid nicotine, which the user inhales. These devices do not contain or burn tobacco and the user does not exhale smoke but rather vapor. Compared to traditional tobacco products, e-cigarettes present a lower risk of secondhand ingestion of certain known carcinogens. However, there may be some risk of ingesting nicotine from secondhand vapor. Also, many of the common law remedies available to residents against infiltrating cigarette smoke may also be available against e-cigarette vapors.

> Prohibit smoking in or near the building. The leases in some smoke-free buildings say that residents can’t smoke in their units, anywhere else in the building, or in common areas or adjoining grounds. That can help solve the problem of smokers congregating right outside the doors or leaning out their windows.

> Make residents responsible for ensuring that their family members, guests, and invitees also comply with the rule. Just as you hold residents responsible for the misbehavior of their families, guests, and invitees, you can hold residents responsible for their smoking, too.

> Warn residents that their neighbors may smoke until their leases expire. When you first start to implement a no-smoking policy, smokers who already live in your smoke-free buildings will be able to continue to smoke until their leases expire (or if HUD requires, until they move out). You don’t want residents who signed no-smoking leases to complain about it, claiming that you promised them a smoke-free environment. So say in the lease clause that there may be smoking in the building for up to a year and that you’re not responsible for stopping it until the individual smokers’ leases expire.

Step #4: Post signs on site. You should post no-smoking signs at entrances and exits, common areas, hallways, and in other conspicuous places on your site to remind residents and guests of the new policy.

Enforcing Your No-Smoking Policy

You may have a hard time finding out whether residents or guests are smoking in smoke-free areas and an even harder time proving who did it. Smoke-free policies are largely self-enforcing, but it’s important to take steps to let your residents know the consequences for violating the policy.

If you absolve yourself of any enforcement, residents will see that they can get away with smoking and will continue to do so. And if you don’t try to enforce the policy, a court may later find that you’ve waived—that is, given up—your right to enforce it. Therefore, enforce the policy consistently among all residents and enforce it as you would any other lease provision.

In Cook’s experience, enforcement became progressively easier after early consistent enforcement efforts. He recommends that you treat smoking like any other lease violation and to be consistent, firm, and fair, just as you would with any other policy. He’s found that residents have become a very good enforcement tool. Some of his residents would talk to each other civilly and say, “You know you’re not supposed to smoke in this building. I don’t want to report you, but please stop doing it.”

For Ball, early in the process residents wanted to test how serious the staff was about their no-smoking policy. And so his staff was admittedly “pretty heavy on those initial first-strike letters as we got started.” But as residents understood that this was, in fact, a policy that they were planning to enforce strictly, he stated that there was a lot more compliance.

When you receive a complaint from a resident about infiltrating smoke, a staff member should walk to the alleged smoker’s unit to find out what’s going on and to talk to the resident. The staff member might actually catch residents smoking in their unit after they’ve opened the door. At which point, you can remind the resident of the policy and make a note of the incident in the resident’s file.

If there’s another complaint, send that person a letter, like our Model Letter: Warn Resident to Stop Smoking at Your Site (link below). This letter tells the resident that he is violating his lease. Your letter, like ours, should do three things:

Remind resident of the signed lease addendum. Remind the resident that it’s a lease violation to smoke in the building. Cite the specific lease clause that bans smoking. Nobody really forgets that she’s not allowed to smoke, but this is the best way to approach that person.

Tell resident that she’s violating lease clause. Tell the resident that you know she’s violating the lease clause banning smoking, and explain the circumstances. Give as many details as possible, including the time and place that the resident was smoking.

Warn resident. Tell the resident that if you catch her smoking again, you’ll take legal action.

If the problem persists, take whatever legal action is appropriate in your area for residents who violate their leases. In some areas it might be a formal warning, and in others it might be a notice to vacate. Either way, it’s important to follow through so residents know you’re serious about keeping your site smoke-free.