As of July 30, 2018, all Public Housing Authorities (PHAs) across the country were required to have “smoke-free” policies under a U.S. Department of Housing and Urban Development (HUD) rule. HUD’s smoke-free rule was adopted to “improve indoor air quality in public housing; benefit the health of public housing resident, visitors, and PHA staff; reduce the risk of catastrophic fires; and lower overall maintenance costs.”
Nationwide, the rule covers over 700,000 units, including over 500,000 units inhabited by elderly households or households with a non-elderly person with disabilities. At the time of its adoption, over 600 PHAs had already implemented smoke-free policies in at least one of their buildings.
The smoke-free rule will have a large impact on public housing residents across the country. Many non-smokers will welcome the rule, which will decrease exposure to second-hand smoke, a known carcinogen. Some smokers will be able to comply with the rule with little difficulty and may even welcome the requirement as an added incentive to quit smoking. However, for other smokers – particularly the elderly and some with disabilities – an inability or unwillingness to comply with the rule could potentially place their tenancy in jeopardy. As HUD has acknowledged, repeated failure to comply with the new smoke-free policies could ultimately result in termination of tenancy and eviction. Given the lack of affordable housing in most communities across the country, the rule has the potential to result in increased homelessness.
- Tobacco Use in North Carolina
In North Carolina, approximately 12.7% of residents smoke daily, with an additional 5.2% smoking on some days. However, as can be seen in the tables below, rates of tobacco use vary considerably based on race, disability status, and income. According to the Tobacco Control Legal Consortium, “individuals living in federally-assisted housing, people with behavioral health issues, and those with disabilities have disproportionately high tobacco use rates.” As a result, HUD’s new policy will affect a higher proportion of public housing residents than a similar smoke-free policy in market-rate housing.
|Smoking Status by Household Income|
|Income Level||Smoke Everyday||Smoke Some Days|
|Smoking Status by Disability Status|
|Functional Disability||Smoke Everyday||Smoke Some Days|
|No Functional Disability||11.0%||4.4%|
|Smoking Status by Race/Ethnicity|
|Race/Ethnicity||Smoke Everyday||Smoke Some Days|
|American Indian (non-Hispanic)||21.3%||n/a|
- Scope of HUD’s Smoke-Free Rule
The smoke-free housing rule applies to public housing units, with the exception of dwelling units in a mixed-finance project and housing assistance provided under section 8 of the U.S. Housing Act of 1937, such as Housing Choice (“Section 8”) Vouchers. In addition, tribal housing and properties that have converted to project-based rental assistance contracts under RAD are also exempt.
Under the rule, PHAs must implement policies that prohibit the use of all lit tobacco products inside (1) all public housing units; (2) all interior areas, including indoor common areas, hallways and stairwells, community centers, day care centers, laundry rooms/centers, and similar structures; and (3) all rental and administrative office buildings. In addition, smoking must be prohibited within 25 feet from all public housing and administrative buildings.
The policy must be followed by residents, guests, staff members, and business visitors.
If there are no outdoor locations on a property that are more than 25 feet from such buildings, smoking would be prohibited on the entire property, and residents, guests, or staff members who wished to smoke would have to go onto some other property in order to smoke.
In areas farther than 25 feet from such buildings, PHAs have the discretion to (a) allow smoking; (b) establish designated smoking areas (DSAs), including erecting partially enclosed structures with benches and lighting; (c) establishing additional smoke-free areas (such as around playgrounds); or (d) making their entire grounds smoke-free. The rule “does not supersede state or local smoking bans, so if such laws prohibit the use of partially enclosed designated smoking areas, the PHAs would still be subject to those requirements.” In the event that a PHA establishes a DSA, that area must comply with HUD’s smoke-free policy, including by being outside any restricted areas. HUD recommends that “appropriate wellness and safety features, such as appropriate seating and shade,” be provided for any DSAs that are established. In addition, under the Fair Housing Act, Section 504, and the ADA, PHAs must “ensure that the area is accessible for persons with disabilities,” with features such as “a flat or paved pathway, ramp, and adequate lighting, depending on the need and area selected.”
The smoke-free policy applies to all lit tobacco products, including cigarettes, cigars, pipes, and water pipes (hookahs). Electronic nicotine delivery systems (ENDS), such as e-cigarettes, and incense, are not covered by the HUD rule, although PHAs have discretion to prohibit their use. HUD further noted that if, in the future, evidence arises that banning ENDS will result in significant maintenance savings, it would reconsider including them as prohibited products.
While smoking on PHA property is prohibited under this policy, HUD has made clear that the rule does not prohibit individual PHA residents from smoking elsewhere, and PHAs should continue to lease to persons who smoke. PHAs should not deny housing to smokers, charge higher security deposits to smokers, or even ask whether an applicant or tenant smokes. Moreover, HUD has noted that the rule “does not guarantee a smoke-free environment,” and residents may still be exposed to second-hand smoke on pubic housing property, particularly outside the 25-foot smoke-free perimeter.
- Penalties for Non-Compliance
PHAs must “ensure due process when enforcing the lease” and residents retain their rights to an informal and formal hearing before their tenancy is terminated. In its Guidebook on implementing the smoke-free policy, HUD emphasizes that it is “unrealistic to expect all tenants to immediately stop smoking in their units” and that “staff must be committed to compassionate enforcement.” HUD emphasized that a single incident of smoking in violation of the policy is not grounds for eviction or termination of assistance. Rather, “HUD encourages a graduated enforcement approach that includes escalating warnings with documentation to the tenant file.” HUD also suggests that PHAs provide “extra attention” to smokers who are mentally ill, elderly, disabled, have additions, or were homeless, as such tenants may need “time and a supportive approach” in order to comply with the policy.”
Under federal regulations residents can be charged for property damage that is beyond normal wear and tear, including, potentially, for damage caused by smoking in violation of the PHA’s smoke-free policy.
- What about Applicants and Tenants with Disabilities?
Under the federal Fair Housing Act (FHA), PHAs are required to make reasonable accommodations (RAs) to persons with disabilities. A disability is defined under the FHA as a physical or mental impairment that substantially limits one or more life activity.
Although nicotine is an addictive substance, and individuals with various types of disabilities may smoke (including, in part, to cope with certain aspects of their disability), HUD’s position is that addiction to nicotine or to smoking is not a disability. Moreover, an RA that enabled a resident to continue smoking in violation of the PHA’s smoke-free policy would not be considered reasonable, as it would be considered a fundamental alteration of the provision of services and could constitute a “direct threat” to the health or safety of others or result in substantial physical damage to the property of others.
PHAs must continue to make reasonable accommodations to applicants and tenants who smoke who are in compliance with the PHA’s smoke-free policies. Thus, while it would not be reasonable for a smoker to be granted an RA to allow him or her to continue smoking in a unit, or to smoke closer than 25 feet from a covered building, it could be reasonable to grant other types of accommodations.
The Preamble to the Final Rule, as well as HUD’s Smoke-Free Guidebook, provide several examples of potential accommodation requests that, depending on the individual circumstances, could be considered reasonable:
- An individual with a mobility impairment could request (and be granted) an accommodation to move to a different unit that was closer to the door to allow easier access to a smoking area;
- If a PHA is providing a designated smoking area on the property, providing an accessible route to that area, as well as seating and lighting, could be considered reasonable; or
- If a smoker has a disability such as a cognitive impairment, s/he might require special attention (such as additional oral reminders and signs in their unit) to ensure that they understand the policy and available cessation resources.
24 C.F.R. § 965.653.
24 C.F.R. § 966.4.
Instituting Smoke-Free Public Housing, 81 FR 87430-01 (December 5, 2016).
North Carolina State Center for Health Statistics, 2016 BRFSS Survey Results: North Carolina: Tobacco Use, Smoking Status, available at https://schs.dph.ncdhhs.gov/data/brfss/2016/nc/all/_smoker3.html.
Tobacco Control Legal Consortium, Smoke-Free Public Housing: Reasonable Accommodations, available at http://www.publichealthlawcenter.org/sites/default/files/resources/Smoke-Free-Public-Housing-Reasonable-Accommodations-2017.pdf.
U.S. Department of Housing and Urban Development, Implementing HUD’s Smoke-Free Policy in Public Housing, available at https://www.hud.gov/sites/documents/SMOKEFREE_GUIDEBK.PDF.
United States Department of Health and Human Services, Public Health Services, Centers for Disease Control, Center for Health Promotion and Education, Office on Smoking and Health, The Health Consequences of Smoking, Nicotine Addiction, A Report of the Surgeon General (1988), available at https://profiles.nlm.nih.gov/ps/access/nnbbzd.pdf.
National Institute on Drug Abuse, Tobacco, Nicotine, and E-Cigarettes Research Report Series, Is nicotine addictive?, available at https://www.drugabuse.gov/publications/research-reports/tobacco-nicotine-e-cigarettes/nicotine-addictive (visited November 28, 2018).
More from this Newsletter Issue: Fall 2018
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