Section 4.4 of the Sustainable Affordable Housing Management Print/eBook combo from Vendome Real Estate Media, Going Smoke-Free.

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SECTION 4.4
Going Smoke-Free
More than one in three nonsmokers who live in apartments—and
more than 58 million total nonsmokers nationwide—are regularly
exposed to dangerous secondhand smoke, even as cigarette-smoking
rates have dropped and smoking in public places has been banned in
many states, according to a February 2015 Vital Signs report from
the Centers for Disease Control and Prevention (CDC). The Envi-
ronmental Protection Agency has classified secondhand smoke as a
Group A carcinogen known to cause cancer in humans—and the
Surgeon General has concluded that there is no safe level of expo-
sure to secondhand smoke.
Each year, secondhand
smoke exposure causes
more than 41,000 deaths
from lung cancer and heart
disease among non-smok-
ing adults and 400 deaths
from Sudden Infant Death
Syndrome, as well as about
$5.6 billion annually in lost
productivity.
According to the study, two
in every five children ages
3 to 11 years —including seven in 10 black children—are exposed, as
are nearly half of black nonsmokers. More than two in five non-

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smokers who live below the poverty level are exposed to secondhand
smoke.
“About 80 million Americans live in [multifamily] housing, where
secondhand smoke can seep into smoke-free units and shared areas
from units where smoking occurs,” Brian King, Ph.D., acting deputy
director for research translation in CDC’s Office on Smoking and
Health, said about the results of the study. People who live in public
and other assisted housing are especially affected by secondhand
smoke, including the elderly, children, and people with disabilities
who are particularly sensitive to secondhand smoke and its effects.
In light of these serious dangers to your residents, you might be
considering banning smoking at your site to save money and attract
responsible residents. We’ll fill you in on the landscape of smoke-
free housing emerging around the country and 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 and give you model tools you can use
to start going smoke-free at your site.
Smoke-Free Laws and Demand for Smoke-Free Housing
Increasing
The Surgeon General has made clear that making your site smoke-
free is the only way to keep nonsmokers safe from secondhand
smoke. Limiting smoking to specific rooms, opening a window, or
using air fresheners or fans is not enough to fully protect individuals
in the home, particularly in multifamily assisted housing. That is
why several cities have passed laws restricting smoking in multifam-
ily housing and several hundred housing authorities have adopted
smoke-free policies. Now HUD is considering making all public
housing smoke-free.
In a proposed rule revealed on Nov. 12, 2015, HUD would require
more than 3,100 public housing agencies overseeing 1.2 million
units of public housing to go smoke-free within several years. PHAs
would have to design policies prohibiting lighted tobacco products
in all living units, indoor common areas, administrative offices,

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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, New
York City council member Donovan Richards proposed 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 resi-
dential 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 compel-
ling 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

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they did not permit smoking at home, over half reported smelling
secondhand smoke from a neighbor’s apartment or from the
grounds.
This trend towards no-smoking households is reflected nationwide:
The CDC 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
studied.
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 cove-
nant of quiet enjoyment. The covenant of quiet enjoyment protects a

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4.4: Going Smoke-Free
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 prop-
erty 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 second-
hand 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 antidiscrimi-
nation statutes, which may provide additional protections to those
experiencing medical difficulties as a result of secondhand smoke
seepage.

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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 infil-
tration, or, in the case of a resident, a transfer to a unit away from
the secondhand smoke. The nonsmoker 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
There is no practical way to prevent secondhand smoke in a build-
ing other than by banning smoking within a building. In a 2006
Surgeon General Report, The Health Consequences of Involuntary
Exposure to Tobacco Smoke, the Surgeon General concluded that
there is no risk-free level of exposure to secondhand smoke, and 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

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particles from the air, but they cannot remove the smaller particles
and gases found in secondhand smoke.
Along with avoiding the types of lawsuits described above associat-
ed 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 smok-
er’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 Depart-
ment, 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.

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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 reduc-
tion 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: Conduct resident survey. 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 survey, below, to help you gather informa-
tion about current smoking behaviors in your site’s units, smoking
among survey responders, and attitudes toward a smoke-free policy.
MODEL SURVEY
RESIDENT SURVEY ON SMOKE-FREE POLICY
1. How long have you lived in your apartment? __________ yrs.
2. Including yourself, how many people currently live in your apart-
ment (including children, adults, and elderly)?
__________ Total people living in apartment.

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SMOKE-FREE RULES IN YOUR HOME:
3. Which of the following statements best describes the rules about
smoking inside YOUR home (residential unit)? Do not include
decks, porches, patios, or garages.
❏ Smoking is NOT allowed anywhere inside the home.
❏ Smoking is allowed in some places inside the home, or at some
times.
❏ Smoking is allowed anywhere inside the home.
❏ Don’t know/not sure.
4. Do you allow smoking on your balcony or patio?
❏ Yes.
❏ No.
❏ I do not have a balcony or patio.
5. How often does somebody smoke tobacco inside your home
(this includes cigarettes, cigars, or pipes)? Include yourself,
household members, and visitors.
❏ Everyday.
❏ Sometimes.
❏ Never.
❏ Don’t know/not sure.
PERSONAL SMOKING BEHAVIORS:
6. Have you smoked at least 100 cigarettes in your ENTIRE LIFE?
❏ Yes.
❏ No.
❏ Don’t know/not sure.
7. Do you NOW smoke cigarettes every day, some days, or not
at all?
❏ Every day.
❏ Some days.
❏ Not at all.
❏ Don’t know/not sure.

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ATTITUDES TOWARD SMOKE-FREE POLICY:
8. To what extent do you support a no-smoking policy in YOUR
building for all individual apartments?
❏ Support.
❏ Do NOT support.
❏ Don’t know/not sure.
9. To what extent do you support a no-smoking policy in YOUR
building for all indoor common areas (such as hallways, lobby,
laundry room, stairwells, garage, or lounge)?
❏ Support.
❏ Do NOT support.
❏ Don’t know/not sure.
10. To what extent do you support a no-smoking policy in YOUR
building for all outdoor areas (such as courtyards, yards, swim-
ming pools, and children’s play areas)?
❏ Support.
❏ Do NOT support.
❏ Don’t know/not sure.
HEALTH OUTCOMES & EXPOSURE TO SECONDHAND SMOKE:
11. How often does tobacco smoke enter your own apartment from
somewhere else in or around your building?
❏ Everyday.
❏ Sometimes.
❏ Never.
❏ Don’t know/not sure.
12. How much are you bothered by tobacco smoke that enters your
own apartment from somewhere else in or around your building?
❏ A lot.
❏ A little.
❏ Not at all.
❏ Don’t know/not sure.

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13. Does anyone living in your apartment have any of the following
illnesses?
❏ Asthma.
❏ Lung Disease (such as chronic bronchitis or COPD).
❏ Heart Disease.
❏ Cancer.
With the survey, most likely, you’ll find that a majority of residents
echo the CDC survey results and support smoke-free policies. 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.
Also, 45 percent of the Duluth respondents said that they or some-
one they live with suffered from heart disease or a lung condition,
such as asthma or emphysema. And 73 percent of the survey respon-
dents 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 meet-
ings 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 com-
municate 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

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a smoker’s urge to smoke within the building and to reduce the num-
ber 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 commu-
nicate 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 resi-
dents 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 drafted a model lease addendum, below, that you can adapt
and use at your site. 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

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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 resi-
dents 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 contin-
ue 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.
Talk to your attorney about adapting the following clause for your
own use, and make sure to get HUD approval before you start using
it. Remember that you can’t change the terms of an existing lease
until it expires, but once you get HUD permission, you can attach
a lease addendum to your new leases and add one to the leases of
renewing residents.

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