Section 8 Voucher Subsidized Housing Units

Transcription

1 A Tool Kit for Implementing No-Smoking Policies in Section 8 Voucher Subsidized Housing Units Prepared by Comprehensive Health Education Foundation (C.H.E.F.) & Pacific Northwest Regional Council of NAHRO (PNRC-NAHRO) October2012

2 No Smoking Policies in Privately Owned Properties with Section 8 Voucher Participants TOOLKIT FOH SECTION 8 LANDLOHUS 1. Cover letter (with website/links page at end). 2. National Center for Healthy Housing s Reasons to Explore Smoke-Free Housing 3. Six Benefits of Going Smoke Free (SmokeFreeWashington.com) 4. HUD Notice H Optional Smoke Free Housing Policy Implementation 5. Infiltration of Secondhand Smoke into Condominiums, Apartments, and Other Multi-Unit Dwellings: 2009, Susan Schoenmarklin, Tobacco Control Legal Consortium 6. There is No Constitutional Right to Smoke, Samantha Graff, Tobacco Control Legal Consortium, Analysis of secondhand smoke in a multi-unit building (chart and explanatory notes) 2 pages 8. Summary of unit renovation costs for smoke-in units 9. Questions to ask yourself as you consider adopting a no smoking policy for your rental properties 10. Tips for no smoking policy implementation & enforcement 11. A Landlord s Guide to No Smoking Policies (Oregon Smoke-Free Housing Project) 12. No smoking signage

3 oil.,.d,..,t i1l. Pacific Northwest Regional Council October 1, 2011 Dear Section 8 Landlord: For the past three years, Comprehensive Health Education Foundation (C.H.E.F.) and PNRC-NAHRO have worked together under a Washington State Department of Health contract to encourage housing authorities to adopt no smoking policies for their public housing and other properties. These units constitute some 23,500 subsidized units occupied by low-income households. As of this date, 28 of the 38 housing authorities in Washington have no smoking policies for all or at least some of their units. Three more are in the process of adopting and implementing no smoking policies at this time. The motivation behind this project is simple. The majority of subsidized housing residents do not smoke. This is also true for Washington State s overall population. Secondhand smoke from residents who do smoke is pervasive, particularly in multiunit properties and cannot be contained in a given unit or area. Secondhand smoke is harmful, even deadly. According to statistics, it kills 50,000 people each year in the United States. The majority of renters want to live in properties free of tobacco smoke. There are, however, more than just public health and safety reasons for no smoking policies. Rental properties and especially multi-unit properties are subject to degradation, damage, and potential fire loss from the residuals of second- and thirdhand (particulate matter that settles on to surfaces) and from tobacco-related fires. Renovation costs are higher, curb appeal is reduced, and fire & liability insurance costs are higher than they would be otherwise. These public health business reasons present a compelling argument for prohibiting smoking in rental properties. Housing authorities also administer a second major type of housing subsidies --- Section 8 tenant-based voucher program in which eligible participants receive a voucher the and then lease privately owned properties in which their tenancy is subsidized through the housing authority. These Section 8 voucher units represent approximately 46,000 units/households in Washington. In these units, however, housing authorities do not make the rules of occupancy. Property owners and managers such as yourself do.

4 Pacific Northwest Regional Council As a part of our ongoing work with the Washington Department of Health, CHEF and PNRC-NAHRO are noxv reaching out to Section 8 landlords who own and manage these 46,000 units to encourage them to consider adopting no smoking policies. We have created a toolkit specifically for Section 8 landlords which we are making available on the C.H.E.F. website at This toolkit contains information about smoking, secondhand smoke and its effects, arid suggestions about how you can go about implementing no smoking policies in your properties. We hope that you will use the toolkit to consider and then implement no smoking policies for your properties whether they are occupied by Section 8 voucher participants or not. Our experience with those organizations who have implemented such policies (both housing authorities and private non-profit housing organizations) has been overwhelmingly positive. Sincerely, Julie Peterson C.H.E.F Ronald L. Oldham PNRC- NJAHRO

5 I Pacific \ortkwest Regional Council Websites and links for more information about smoke-free housing www. chef. org (see Tobacco Prevention Network in left margin) www. cdc gov/healthyhomes/healthy Homes Manual WEB.pdf (blank spaces are underscores)

6 REASONS TO EXPLORE SMOKE-FREE HOUSING This document is for property owners, landlords, and property managers who are interested in exploring a smoke-free policy for their multi-unit buildings. Read on if you are interested in a policy that can help you save money, reduce tenant complaints, improve the health of your tenants and building, and increase your market share. Smoke-free apartment policies are quickly becoming the standard for multi-unit housing in the U.S. A smoke-free policy is simple and straightforward. There is no federal or state law that prohibits a property owner from implementing a smoke-free policy for their buildings or grounds, and instituting a policy does not preclude someone who smokes from living in the building. It simply requires that all tenants abide by the policy while on the property. Going smoke-free in your multiunit buildings is one of the best moves you can make for your tenants and your bottom line. The Smoke-Free Environments Law Project conducted an analysis of F federal and state laws, HUD rules, and legal cases and found unequivocally that a ban on smoking for new tenants who move into public or Section 8 housing is permissible in all 50 states. Reduces Operating Costs Apartment turnover costs can be two to seven times greater when smoking is allowed, compared to the cost of maintaining and turning over a smokefree unit. 100% smoke-free policy. Ask your carrier today! Smoking is a leading cause of residential fire and the number one cause of fire deaths in the U.S. Tenants Prefer Smoke-Free Housing Several statewide surveys demonstrate that as many as 78% of tenants, including smokers, would choose to live in a smoke-free complex. 234 Secondhand smoke complaints and requests for unit transfers drop following the implementation of a smoke-free policy. Nationwide, less than 21% of the general population smokes, 5 so it makes sense that a vast majority of tenants want to live in a smoke-free environment. Tenant Health Improves with Smoke-Free Housing There is no risk-free level of exposure to secondhand smoke 6 and the EPA has identified secondhand smoke as a Class A carcinogen, the most toxic class of chemicals that are known to cause cancer in humans. 7 Secondhand smoke is a leading trigger of asthma attacks and other respiratory problems and a known cause of Sudden Infant Death Syndrome (SIDS). 8 Some insurance companies offer discounts on property casualty insurance for multi-unit owners with a Secondhand smoke is classified as a toxic air contaminant, putting it in the same class of other contaminants )1JH IflU1 L H1[J.i; (:i HJj )L kro)( L j( I! -d L U. fl., tr,, J 7

7 including asbestos, lead, vehicle exhaust, and a host of other chemicals strictly regulated in the U.S. 9 Ventilation systems do not protect families from secondhand smoke. Most air filter systems are designed to remove odors, not the toxic particles from tobacco smoke. According to the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE), At present, the only means of effectively eliminating health risk associated with indoor exposure is to ban smoking. 1 Gain green building credits. Numerous Green Building programs, such as the U.S. Green Building Council s LEED program and the Enterprise Community Partners Green Communities initiative, provide credit in their programs for smokefree properties. Access to state affordable housing tax incentives, Several states (Maine, California and New Hampshire) currently offer tax credit incentives to developers of low-income housing for new housing projects that include a smoke-free policy. HUD strongly encourages public housing authorities to pursue smoke free housing. On July 31, 2009, HUD issued a notice that unequivocally stated the Department s support for non-smoking policies at public housing authorities (PIH [HA]). Research demonstrates that up to 65% of air can be exchanged between units and that smoke travels through tiny cracks, crevices and chasing, involuntarily exposing individuals in adjacent units. Other Policy Benefits Self enforcing. Smoke-free policies are largely selfenforcing. Because tenants expect and tend to prefer a smoke-free environment, they will abide by the policy. Guardian Management, a group managing over 12,000 smoke-free units nationwide, recently released survey results showing that more than three-quarters of their residents are happy with the smokefree policy. 12 There are no federal, state, or local laws that prohibit a landlord, housing authority, or condominium association from adopting a 100% smoke-free policy. You can make your entire property smoke-free, including all apartment units and outdoor spaces. 13 Smoking is not a legal right. Smoke-free policies do not infringe on the legal rights of individuals. 14 Smokers are not a protected class under any state or federal law. 15 Smoke n i is nc a I ii ( c t[ ej ri[ Is t I / iu* free policies are like any other lease provision, such as trash disposal or pet restrictions, and should be implemented and enforced as any other lease policy. Both public and private facilities have the right to adopt smoke-free policies. If you are a public housing authority or owner of a subsidized facility, ensure your tenants receive adequate notice (30 days or more) of lease change and that HUD and/or your local housing authority approve of any changes to the model lease. 67

8 F For New Buildings Start Fresh. The easiest way to implement a smokefree policy is to make buildings 100% smoke-free as you develop them. Include explicit language in your lease that notifies incoming tenants of the policy. You can view sample lease language by visiting Modify leases. When adopting a smoke-free policy, include a lease provision or addendum that outlines the restrictions and penalties under your policy. When new or renewing tenants sign the lease, have them initial that they have read and understand the policy. Advertise as smoke-free. Include smoke-free in all advertisements for your vacant units. Smoke-free k policies are amenities, no different than the inclusion of heat or hot water. Approximately 75% of tenants want to live in a smoke-free environment, and including a notice that your building is smoke-free can attract more attention to your listing. Inform potential tenants. Include information regarding your smoke-free policy on all housing applications to ensure incoming tenants are aware of the rules before they move in to your building. Also, include adequate signage and communication to remind existing tenants, incoming guests, and r For Existing Structures with maintenance workers of the policy. Tenants Build tenant support. When you re not sure how tenants feel about a smoke-free policy and you want their input, a brief survey might be in order. Asking questions such as Has secondhand smoke from another unit ever bothered you? or If available, would you prefer to live in a smoke free environment? can help you determine what type of policy to implement. For sample survey language, visit www. smokefreehousingne.org. Communicate widely. The success of your smoke-free policy will be relative to how well you communicate the policy with your tenants. This does not have to be complicated or overly time-consuming, but doing things like including articles in your tenant newsletter, holding tenant meetings so opinions can be voiced, sending a letter to tenants, providing adequate signage, and supplying information on the harmful effects of secondhand smoke will all help with policy enforcement down the road. Offer support. Many existing developments offer some type of cessation services (quit smoking support) to their tenants. Look to your State or municipal health department, Lung Association, Cancer Society, or local hospital for free cessation support. Though you are not asking people to quit smoking with a smoke-free policy, this type of policy provides incentive and support to those who were considering quitting. Providing tenants with local cessation information is a way to show that you care about their well-being. Give plenty of notice. Notifying residents about your policy well in advance of making it effective isn t only a good idea, it s the law. Neglecting to tell both your new and old residents about your smoking policy is a breach of the duty to provide notice. You may only be required to give 30 days notice per your lease agreement when implementing a smoke-free policy, but it is recommended that you provide at least 90 days advance warning. This extra time will give those who smoke a chance to adjust their lifestyle to the new policy. Your posted notifications should include the wording that will be in your leases or covenants. Providing poorly-worded or incomplete lease provisions in these notices is also considered a breach of duty. Consider your options There are many options to consider with a new policy. Will you prohibit smoking on the entire property grounds, 25 feet from doorways/ entrances/windows or only in the building? If you allow smoking on the grounds, where will those tenants go to smoke? Will you provide a space? 1 efl in r Oiflci t.

9 What about patios and balconies? All questions and more need to be thought through with possibly tenants Leases staff, as well. Follow the rules. administrators, and these With existing buildings, be sure to follow the rules of your lease before adopting new policies. After both parties, lease has been signed a it of both of by cannot be modified without the consent residents who have fixed-term leases will be exempt from the smoke-free policies. the parties. Therefore, Start with new and renewing tenants. When new tenants sign a clear smoke-free provision contract. a lease, include your in All Buildings Implications for workers and guests. Remember, smoke-free policies not only impact residents, but their guests and your employees. When you adopt smoke-free policy, make it clear that a all guests, maintenance workers, and staff are prohibited from smoking as well. For more detailed information about how to implement a smoke-free policy in your new or existing development, including for example sample surveys, notification letters, and lease addenda, visit any of the following websites. Capital District Tobacco Free Coalition Smoke-Free Housing New England vvrv.c. c Ieie:i ;.,j1jr:e. Michigan Smoke-Free Apartments Smoke-Free Housing Coalition of Maine Minnesota Smoke-Free Housing Tobacco Technical Assistance Consortium Smokefree Apartments Registry Technical Assistance Legal Center 1 Schoenmarklin, Susan. Analysis of the Authority of Housing Authorities Housing Owners to Adopt Smoke-Free Policies in Their Residential Units.(Ann Arbor, Ml: Smoke-Free Environments Law Project, May, 2005.) (See felp/public.. housing24eslzpdi) and Section 8 Multiunit Smoke-Free Housing Coalition of Maine Surveys. (Portland, ME: 2007.) Washington State Department of Health, Tobacco Prevention and Control Program Tenant Surveys. (Olympia, WA: 2003,) 4Oregon Smoke Free Housing Project, 2006 Market Surveys. American Lung Association of Oregon. (Tigard, OR: 2006.) United States, Center for Disease Control and Prevention. Prevalence of Current Smoking among Adults Aged 18 Years States, 1997 June (Atlanta: Department of Health and Human Services, 2008.) and Over: United United States, Office of the Surgeon General. The Health Consequences of Involuntary Exposure to Tobacco Smoke. (Atlanta, GA: Department of Health and Human Services, 2006.) United States, Office of Health and Environmental Assessment. Health Effects of Exposure to Secondhand Smoke. (Washington, DC: Environmental Protection Agency, 1992.) 8United States, Office of the Surgeon General. The Health Consequences of Involuntary Exposure to Tobacco Smoke. (Atlanta, GA: Department of Health and Human Services, 2006.) California Environmental Protection Agency. Environmental Tobacco Smoke: A Toxic Air Contaminant. (Sacramento, CA: California Air Resource Board, 2006.) 0 Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE). Environmental Tobacco Smoke Position Document. (Atlanta: June 30, 2005.) Center for Energy and Environment. Reduction ofenvironmental Tobacco Smoke Transfer in Minnesota Multifamily Buildings Using Air Sealing (Minneapolis, MN: 2004.) 12 Oregon and Ventilation Treatments. Public Health, Guardian Management. Guardian Management, LLCTenant Survey Reveals Majority of Residents Pleased with No Smoking Policy (Portland, OR: November 18,2008.) Schoenmarklin. Technical Assistance Legal Center, There No Constitutional Right to Smoke. Public Health Institute (Oakland, CA: 2005.) 0lbid. Public Housing Occupancy Guidebook, HUD, Part 5, Chapter Public Housing Occupancy Guidebook. HUD, Part 5, Chapter 17.3., 0,, ,, S 1, 4,,

10 Six Benefits of Going Smoke4ree uauc HEALTH IIULTWER WSlflNGTON Reason #1: Market demand According to the Healthy Community Fnvironments Survey 12007], Washington renters have a strong preference for smoke-free housing About 8o percent of rentem prefer to live in smoke-free housng More than 95 percent of non smokers prefer to live in smoke free housing 54 percent of people who smoke prefer to I ve in smoke-free housing n addition, a recent report by the Centers for Disease Control and Prevention (CDCI found that 87 percent of Washington residents have a no-smoking rute in their homes the fourth highest rate in the not or. Reason #2: Reduce your cleaning and maintenance costs It can cost an additionat $2,500 or more to turn over a smoking unit. Whether it s the smell, the yellow watts or the burn notes, clean ng up after a smoking tenant is time consuming and costly. Adopting a no-smoking policy will save money on cleaning, painting and repair costs. Reason #3: Protect your property from fire In Washington, cigarettes and smoking material are responsiole for more deaths than any other fire source. When residential smok ng fms occur, they cause more injuries, more deaths and more expensive property damage than other types of residential fires. A no-smoking policy reduces your risk insurance discount. Ask your broker. and may make you eligible for an Reason #4: You have the right to adopt a no-smoking policy It s your right to adopt a comprehensive smokefree poticy just like you might not allow pets or loud music. Smoking is not protected behavior under any federal, state or local laws. Owners and landlords of multi-unit dwellings have the right to set reasonable rules that protect their investments and the heatth of their tenants. j Reason #5: Avoid liability Apartment owners may run an increased risk for legal liability when their property is not designated smoke-free. People with serious breathing disabilities or smoke allergies have legal protection under federal and state laws, including the Americans with Disabilities Act and the Fair Housing Act. Reason #6: Protect the health of your tenants! Secondhand smoke exposure is a preventable health hazard Each year it causes about 3,400 lung cancer deaths and 46,000 heart disease deaths among non-smokers in the U.S. In 2009, the Institute cf Medic ne released a report finding that secondhand smoke exposure can cause heart attacks. Te report also found that smoke-free indoor air laws are an effective way to prevent heart attacks and save lives. We beheved there was a market for providing a heathy, smoke-free environment in apartment housing. In addition to the heath benefits, we can now proiide residents viith a cleaner, better maintained apartment home, with a reduced fire risk, We see this as an added amenity we can offer to protect the hea th and safety of our residents. Jim Wiard I Senior Vice President of Property Management Guardian Management LLC

11 How to Go Smokefree Property managers and owners who have implemented no-smoking policies report that they are easy to implement and easy to enforce. Most landlords find that policies can be implemented in four steps: 1. Develop your policy. Re as specific as possible when deveouing your psicy and lease languane. Consider including the tollowng: Where smoking is and is not allowed [indoors and out) Who the pohcy appbes to [tenants, guests, staff, service persons, etc.) Thp definiton of smokinq Eftect vs dates for new and current tenants Consequences for violations Whether there is a designated outdoor smoking area preferably 25 feet away from the building and common areas A policy that covers the whole property will have the biggest impact on reducing cleaning and repair costs, reducng fire risk, and making the building healthier for residents. 2. Communicate the policy. Residents should be made aware of the change with a notification letter, including: What the policy covers Reasons for the policy [reducing fire risk, improving health, protecting the property, etc.) Effective date for the policy Resources for quitting smoking such as the free Washington State Tobacco Quit Line (1-800-QUIT-NOW. w-.. i.. qutt:ne.ccm] Advertise your property as smoke -free for prospective tenants, and clearly explain the policy at lease signing. 3. Implement the Policy. How you implement a no-smoking policy wilt depend on the type of leases you have jr your building. New leases: Include the policy policy. in alt nevv leases signed on or after the effective date of the no-smoking Current leases: Add the no-smoking policy when a tease expires, or during lease renewal. The nosmoking clause can be added sooner expires. if a resident voluntarily agrees to a lease change before their lease Month-to-month leases: Month-to-month leases require 30-days notice before a policy change. The nosmoking policy can go into effect on the frst day of the lease term [the day rent is due), 30 days alter the resident has received notice. 4. Enforce your policy. You can enforce your no-smoking policy like any other rule. inch do tin the rental agreement and ted tenants about Post signs and stickers to remind resdents and guests of the policy Hold tenants fnancially responsible (or smoke-related damage it during the application process and at move-in Visit the property and perform inspections, and respond promptly to complaints about violations Use the same system of warnings, penalties and eviction notices as you do for other rules, like trash removal, pets cr rent payment SmokeFreeWashington.com

12 *ItIIn* U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT WASHINGTON. DC ASS[SFA F SI URL I ARY FOR 1101 SI FLDERAL 1101 SING UOMMISSIONI-R U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT Special Attention of: NOTICE: H Multifamily Hub Directors Issued: September 15, 2010 Multifamily Program Center Directors Rural Housing Services (RHS) Directors Expires: September 30, 2011 Supervisory Housing Project Managers Housing Project Managers Cross References: Contract Administrators Multifamily Owners and Management Agents Subject: Optional Smoke-Free Housing Policy Implementation I. Purpose The purpose of this Notice is to encourage owners and management agents (0/As) participating in one of the Multifamily Housing rental assistance programs listed in Section III of this Notice to implement smoke-free housing policies in some or all of the properties they own or manage. This Notice provides instructions to 0/As on the requirements for implementing smoke-free housing policies and only applies to 0/As who choose to establish such policies. II. Background it has been proven that exposure to smoke, whether direct or secondhand, causes adverse health outcomes such as asthma and other respiratory illnesses, cardiovascular disease, and cancer. In 2006, the U.S. Department of Health and Human Services published The Health Consequences ofinvoluntaiy Exposure to Tobacco Smoke: A Report ofthe Surgeon General. This document expounds on health effects due to involuntary exposure to tobacco smoke. The report defines secondhand smoke, in the past referred to as environmental tobacco smoke (ETS), as smoke composed of sidestream smoke (the smoke released from the burning end of a cigarette) and exhaled mainstream smoke (the smoke exhaled by the smoker). The report lists several major conclusions, all based on scientific data, including the following: 1) The scientific evidence indicates that there is no risk-free level of exposure to secondhand smoke; and 2) Eliminating smoking in indoor spaces fully protects nonsmokers from exposure to secondhand smoke. Separating smokers from nonsmokers, cleaning the air, and ventilating buildings cannot eliminate exposure of nonsmokers to secondhand smoke.

13 Below are relevant statistics and conclusions from The Health Consequences ofj,zi olunran Exposure to Tobacco Smoke: A Report of the Surgeon General. According to a 2005 estimate by the California Environmental Protection Agency, Office of Environmental Health Hazard Assessment, approximately 50,000 excess deaths result annually in the United States from exposure to secondhand smoke. Children exposed to secondhand smoke are at an increased risk for sudden infant death syndrome, acute respiratory infections, ear problems, and more severe asthma. Secondhand smoke has been designated as a known human carcinogen (cancer causing agent) by the U.S. Environmental Protection Agency, National Toxicology Program and the International Agency for Research on Cancer. Exposure of adults to secondhand smoke has immediate adverse effects on the cardiovascular system and causes coronary heart disease and lung cancer. Nonsmokers who are exposed to secondhand smoke at home or at work increase their risk of developing heart disease by percent. Nonsmokers who are exposed to secondhand smoke at home or at work increase their risk of developing lung cancer by percent. The National Toxicology Program estimates that at least 250 chemicals in secondhand smoke are known to be toxic or carcinogenic (cancer causing). In addition to the negative health effects of secondhand smoke, smoking is a proven hazard to physical structures. The United States Fire Administration (USFA) indicates smoking as the number one cause of home fire deaths in the United States. Furthermore, about 1,000 people are killed every year in their homes by fires caused by cigarettes and other smoking materials. The USFA states 25 percent of people killed in smoking-related fires are not the actual smokers; of this percentage, 34 percent of the victims were children of the smokers, and 25 percent were neighbors or friends of the smokers. III. Applicability This Notice applies to: A. Project-based Section 8 1. New Construction 2. State Agency Financed 3. Substantial Rehabilitation 4. Section 202/8 5. Rural Housing Services Section 515/8 6. Loan Management Set-Aside (LMSA) 7. Property Disposition Set-Aside (PDSA) B. Rent Supplement C. Section 202/162 Project Assistance Contract (PAC) D. Section 202 Project Rental Assistance Contract (PRAC) E. Section 811 PRAC 2

14 F. Section 236 G. Rental Assistance Payment (RAP) H. Section 221(d)(3) Below Market Interest Rate (BMIR) IV. Update to House Rules/Policies and Procedures 0/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. 0/As are encouraged to establish smoke-free policies that pertain specifically to their building and grounds including any common areas, entry ways, openings to the building (e.g. windows), and/or playground areas. In carrying out any smoke-free housing policy, 0/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 11 of the American Disabilities Act; Section 109 of the Housing and Community Development Act of V. Requirements for Implementing Smoke-free Housing Policies 0/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 0/A s policies must: 1. Be in accordance with state and local laws. 2. Address smoking in a tenant s unit, common areas, playground areas, areas near 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 0/A establishes a totally smoke-free policy. B. The 0/A must not have policies that: I. Deny occupancy to any individual who smokes or to any individual who does not smoke who is otherwise eligible for admission. 2. Allow the 0/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 0/A has established a smoke-free building as of a certain date, the 0/A must inform applicants after that date that the building is a totally smoke-free building. The 0/A must not maintain smoking or nonsmoking specific waiting lists for the property. 3

15 3. Allow the 0/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 0/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 0/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 REV-I, Occupancy Requirements of Subsidized Multfam i/v Housing Programs, Chapter 4 and the removal of names from the waiting list according to HUD Handbook REV-i, Occupancy Requirements ofsubsidized Multifamily Housing Programs, paragraph /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. VI. Implementation 0/As must implement any new smoking-related House Rules in accordance with HUD Handbook REV- 1, Occupancy Requirements of Subsidized Multfam ily Housing Programs, paragraphs 6-9 and A. New admissions. 0/As are required by existing HUD policies to provide the I-louse Rules to all new tenants. B. Existing tenants. 0/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. 4

16 VII. Penalties for Violatin the House Rules Repeated violations of the non-smoking policy may be considered material noncompliance with lease requirements and may result in termination of tenancy. When pursuing eviction due to material noncompliance with lease requirements, existing HUD procedures found in HUD Handbook , REV-I, Occupanci Requirements ofsubsidized Multifamily Housing Programs, Chapter 8 must be followed. VIII. Further Information If you have any questions regarding the requirements in this Notice as they pertain to the Office of Housing s programs, please contact your local HUD Field Office. Is! David H. Stevens Assistant Secretary for Housing - Federal Housing Commissioner 5

17 A La SynapsL by the Tobacco Contro Legai Consortiu October 2002 infiltration of Secondhand Smoke into Condominiums, Apartments and Other MultiUnIt Dwelflngs: 2009 Susan Schoenrnarklin Lt 11? J.

18 This synopsis is provided for educational purposes only and is not to be construed as a legal opinion or as a substitute for obtaining legal advice from an attorney. Laws cited are current as of September 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: Schoenmarklin, Tobacco Control Legal Consortium, Infiltration of Apartments and Other Multi-Unit Dwellings: (2009). Susan 2009 Secondhand Smoke into Condominiums, Tobacco Control Legal Consortium Summit Avenue Saint Paul, Minnesota USA tobaccolaw@wmitchell.edu Copyright 2009 Tobacco Control Legal Consortium This publication was made possible by the financial Johnson Foundation. support of the American Cancer Society and the Robert Wood

19 Minnesota Introduction The demand for smoke-free apartments and condominiums is soaring, spurred by warnings about secondhand smoke from leading health experts. The 2006 Report of the U.S. Surgeon General, The Health consequences of Involuntary Exposure to Tobacco Smoke, cautioned that there is no risk-free level of exposure to secondhand smoke and that even small amounts of secondhand smoke exposure can be harmful. The report included a discussion of the infiltration of secondhand smoke in multi-unit housing and supports the adoption of smoke-free 2 The Centers for Disease Control and Prevention policies. considered the risk of heart attacks from exposure to secondhand smoke substantial enough to warn those at increased risk for coronary heart disease to avoid all indoor environments that permit smoking. 3 In 2005, the California Air Resources Board classified secondhand smoke as a toxic air contaminant similar to diesel exhaust and benzene. 4 The Environmental Protection Agency classifies secondhand smoke as a Group A carcinogen, for which there is no safe level of human exposure. 5 For every eight smokers who die from smoking, it is estimated that one nonsmoker dies. 6 Key Points Landlords and condo minium associations may prohibit smoking or refuse to allow smoking for new, and in many cases existing, occupants. There is no judicially recognized right to smoke in a multi-unit dwelling, whether the dwelling is privately owned or public housing. Residents of multiunit dwellings have a variety of common law remedies for stopping secondhand smoke infiltration. Despite the documented health risks of secondhand smoke, a perception still exists that banning smoking in the individual units of multi-unit housing is illegal. This publication, which debunks such a notion, is an update of the Tobacco Control Legal Consortium s 2004 synopsis on the same topic, and includes recent information on smoke-free housing laws and policies. Section I explains the right of landlords, condominium associations and public housing authorities to prohibit smoking in individual units. Section II provides solutions for private individuals if secondhand smoke is seeping into their dwellings from neighboring units. Finally, section III discusses enforcement concerns expressed by landlords and the advantages of specifically addressing smoking in a lease. This section also provides smoke-free language to use in a lease or in condominium bylaws. A committee of attorneys who represent landlords and tenants developed this model language for the Center for Energy and Environment and the Association for Nonsmokers Minnesota. in Minneapolis, A resident of a multiunit dwelling who can show that secondhand smoke exposure limits a major life activity can use the federal Fair Housing Act to seek to end the secondhand smoke infiltration. Landlords and condo minium associations can prohibit smoking in their leases and governing documents, although they may be able to take action even without such language. 1

20 Section I Prohibiting Smoking and Smokers in Private and Public Housing The law is clear that in all fifty states a landlord may chose to prohibit smoking in individual units as well as in common areas. The law pertains to private landlords, public housing authorities, and other affordable housing owners. According to a 1992 Opinion of Michigan s Attorney General, neither state nor federal law prohibits a privately-owned apartment complex from renting only to non smokers, or in the alternative, restricting smokers to certain buildings within an apartment complex. 7 In 2008, the Idaho Office of the Attorney General s manual for landlords and tenants stated, Given the health risks and environmental issues associated with second-hand smoke, more and more landlords are excluding smokers from renting the landlords property. This is not a discriminatory practice, and Idaho does not have any laws protecting a tenant s right to smoke. 8 These opinions are relevant to all states. An extensive search of federal and state laws and regulations did not identify any laws or cases preventing landlords from prohibiting smoking. Under common law, a landlord has a right to place certain restrictions on tenants, including restrictions on smoking, as long as the landlord does not violate constitutional or other laws. 9 There is no state or federal constitutional right to smoke. On July 23, 2003, the Chief Counsel of a Housing and Urban Development (HUD) field office in Detroit issued a letter stating that the right to smoke is not protected under the Civil Rights Act of 1964 or any other HUD-enforced civil rights authorities) She pointed out that nothing in federal law, including the federal Fair Housing Act, prevents landlords from making some or all of their apartment units smoke-free. Federal law does not prohibit the separation of smoking and non-smoking tenants in privately owned apartment complexes and in fact, does not prohibit a private owner of an apartment complex from refusing to rent to smokers. 2 On July 17, 2009, HUD issued recommendations strongly encouraging public housing authorities to enact smoke-free policies in their public housing units. 3 A number of other HUD opinions and cases approve the right of a public housing authority to prohibit smoking in properties subject to HUD authority. 4 A January 31, 2007 letter from the Field Office Director of the HUD office in Detroit confirms the right of local housing authorities and private owners of HUD subsidized housing to adopt smoke-free policies in their buildings. In the letter, the author notes that a number of housing authorities and private landlords have voluntarily adopted smoke-free policies for their HUD-assisted developments, and that these policies were adopted as a result of local efforts rather than by regulation or law. 5 While administrative authorities and judicial case law recognize the right to prohibit smoking, only one state expressly creates such a right by statute. Utah s state law permits landlords to prohibit smoking within an apartment unit by incorporating such a clause in the lease. 6 Similarly, the Utah Condominium Act allows a condominium association to develop covenants and restrictions that prohibit smoking on the site. 7 Whether a condominium association that had previously permitted smoking in individual units could subsequently vote to prohibit smoking in the entire condominium complex without any special grandfather exclusions for the units of smokers is subject to debate. In 2006, a District Court in Colorado upheld the right of a condominium association to enforce retroactively an amendment banning smoking in all units. The issue of grandfathering is discussed at length in a law synopsis from the Tobacco Control Legal Consortium titled Legal Options for Condominium Owners Exposed to Secondhand Smoke. The author concludes that courts are likely to enforce smoke-free amendments to condominium documents, even against the wishes 2

21 of owners who purchased units when smoking was pennissible. Section II Remedies for Residents of Multi-Unit Dwellings Adversely Affected by Secondhand Smoke Landlords and condominium boards not only have the right to prohibit smoking, but in fact may also be liable under a variety of legal theories for failure to prohibit smoking when a tenant or condominium owner is affected by secondhand smoke. In addition, the plaintiff may also take action directly against the smoker. The plaintiff may choose from a variety of options when pursuing a claim against a landlord, condominium board, or the offending smoker, including: Voluntary compromises or settlements A disability claim with the Department of Housing and Urban Development or its state equivalent A small claims court case If applicable, a case with a landlordtenant court A traditional lawsuit in state court. music, offensive odors, or other significant annoyances, and would arguably apply to smoking if the resulting secondhand smoke causes others discomfort or health problems. If the seepage problem cannot be resolved in informal discussions with the smoker, the tenant should approach the landlord with the lease language, the physician s letter, and any medical test results. The tenant should emphasize that the landlord has the authority to prohibit or restrict smoking in an individual unit to protect the well being of another resident. 23 The tenant may ask the landlord to prohibit smoking in the offending unit or pay for the cost of measures to reduce the amount of secondhand smoke entering the non-smoker s unit, comprehensive measures, such as asking the 4 or the tenant may seek less smoker to refrain from smoking on outside patios or in common areas. Aggrieved condominium owners who are unable to resolve their dispute with a fellow condominium owner have recourse to their condominium board and condominium association. The condominium section of the Smoke-Free Environments Law Project website has information on other voluntary strategies. 25 Voluntary Strategies The first step in any dispute, of course, is to try to resolve the issue without legal action. A tenant or condominium owner adversely affected by secondhand smoke should document the problem, including health effects. 2 A letter from the attending physician attesting to the effect of the secondhand smoke on the resident s health is also very helpful. 21 The tenant should review the lease or condominium documents 22 to determine if any nuisance clause prohibits activities that unreasonably interfere with other residents enjoyment of the premises. Most rental and condominium agreements include some sort of nuisance protection. Nuisance clauses are typically invoked when a tenant objects to loud 3

22 the It should be noted that remedial treatments such as sealing gaps, weather-proofing doors and windows, and adjusting ventilation can reduce but not eliminate secondhand smoke seepage. In 2004, the Center for Energy and Environment, based in Minneapolis, studied air flow in six multi - family buildings. Using a variety of ventilation and air sealing treatments, the Center was able to reduce the transfer of contaminants among some units, but almost one third of units (29 percent) treated had no reduction of contaminants at all. Sealing treatments alone were only marginally effective, reducing secondhand smoke seepage by only three percent in certain buildings Although commonly recommended, air cleaners are not effective in removing the minute particles and toxic gases in secondhand smoke. According to the American Society of Heating, Refrigeration and Air-Conditioning Engineers (ASHRAE) body that sets the standard for indoor air quality ventilation technology is insufficient to protect building occupants from secondhand smoke. 29 Common Law Remedies 28 The traditional approach in a tenant or condominium owner dispute over secondhand smoke infiltration is court action or the threat of court action. Depending on the rules of the jurisdiction, the suit could be brought in small claims court or in a special housing court, as an alternative to state court. Most cases are settled, with only a handful reported nationally in which a decision was reached on the merits. While ascertaining trends from the limited number of reported cases is difficult, there have been promising developments in recent years. Tenants and condominium owners have successfully brought claims for secondhand smoke seepage using various common law remedies, including breach of the warranty of habitability, breach of the covenant of quiet enjoyment, trespass, constructive eviction, nuisance, negligence, and harassment. This section is limited to those legal theories that have been successful in court to date. 3 One case involving a variety of legal claims was the 1991 Massachusetts case Donath v. Dadah. In that case a tenant sued her landlord alleging negligence, nuisance, breach of warranty of habitability, breach of the covenant of quiet enjoyment, intentional infliction of emotional distress and battery due to secondhand smoke exposure. The plaintiff asserted secondhand smoke from the second floor of the building in which she lived caused asthma attacks, difficulty breathing, wheezing, prolonged coughing, clogged sinuses and frequent vomiting. The plaintiff moved out of the apartment shortly after filing suit. The case was settled for an undisclosed sum of money. Warranty of Habitability 32 1 In all states, even if landlords are not at fault for a problem, they are responsible for ensuring that residential rental properties are fit for human occupancy. The landlord in effect makes a warranty ofhabitability to the tenant 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 ifi 4

23 and constitutes a breach of the lease. The more secondhand smoke exposure affects a plaintiff, the stronger the argument that secondhand smoke is a breach of the warranty of habitability in 2004, an Ohio Court ofappeals upheld a lower court ruling that a landlord breached the warranty of habitability by failing to remedy the problem of secondhand smoke caused by a neighboring tenant. The ruling was affirmed even though testimony showed that the landlord made numerous efforts to insulate the nonsmoker s unit from seeping smoke. in the 1992 Oregon case Fox Point Apt. v. Kipples, a tenant who was sensitive to secondhand smoke successfully argued that her landlord breached his duty to make her apartment habitable by allowing a smoking tenant to move into the apartment below her. The plaintiff suffered swollen membranes and respiratory problems as a result of the secondhand smoke. A jury unanimously found a breach of habitability, reduced the plaintiff s rent by 50 percent and awarded damages for the plaintiff s medical bills. In New York, a trial court in Poyck Biyant ruled that a tenant exposed to secondhand smoke seepage from a neighboring unit could bring a claim against the landlord for violating the warranty of habitability. The judge in the ruling said that while the landlord contends that he had no control over the neighbors...he failed 37 to offer any evidence that he took any action to eliminate or alleviate the hazardous condition. Covenant of Quiet Enjoyment 38 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 tenant from serious intrusions that impair the character or value of the leased premises. In the 1998 Massachusetts case Gainsboro ugh St. Realty Trust v. Haile, the Boston Housing Court held that secondhand smoke was a serious enough intrusion to breach both the covenant of quiet enjoyment and the covenant of habitability. The plaintiff, whose apartment was situated above a bar, withheld 39 4 rent for three months because of the drifting secondhand smoke in her apartment. The judge ruled that the amount of smoke from the bar made the apartment unfit for smokers and nonsmokers alike. An appellate court also ruled that exposure to secondhand smoke can constitute a breach of the covenant of quiet enjoyment. In the 1994 Ohio case Dworkin Paley, the court reversed a summary judgment in favor of a landlord who smoked in a two-family dwelling that shared common heating and cooling systems. The tenant alleged that smoke from the landlord s unit caused her physical discomfort and was annoying. In reversing the dismissal, the appellate court said there were general issues of material fact concerning the amount of smoke or noxious odors being transmitted into appellant s rental unit. Although the court did not rule that a breach of quiet enjoyment occurred, the tenant was given the opportunity to demonstrate at trial that the amount of secondhand smoke was sufficient to qualify as a breach While the covenant of quiet enjoyment is derived from landlordltenant law, it has also been applied for the benefit ofthe condominium owner. In 2005, a Florida court in Merrill v. Bosser found that an owner of a condominium unit who rented his unit to a heavy smoker violated the condominium s covenant of quiet enjoyment. According to the court, [sjimilar to landlord-tenant situations, the covenant of quiet enjoyment is breached when a party obstructs, interferes with, or takes away from another party in a substantial degree the beneficial use of the property. The covenant was breached, according to the court, because secondhand smoke set off the smoke detector in one instance and in several cases forced the 45 plaintiff s family to leave the condominium and sleep in a different location. Trespass 46 The Merrill court also found that the smoker s secondhand smoke was trespassing on the 5