Legal Issues for smoking and housing
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Legal Issues for smoking and housing

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Legal Issues for smoking and housing Legal Issues for smoking and housing Presentation Transcript

  • Clearing the Air: Legal Aspects of Smoke-free Affordable Housing Debra Kelley American Lung Association of California
  • Disclaimer
    • This presentation is not offered or intended as legal advice. It is created to provide general information only.
    • It does not address the specific legal requirements affordable housing providers may have to follow should they choose to implement a smoke-free housing policy.
    • Attendees should seek the advice of their own attorneys to discuss the legal issues that might arise with a smoke-free housing policy
    • 86% of adults do not smoke
    • 70% of low income adults do not smoke
    • 93% of seniors do not smoke
    • California Dept of Health Services Adult Smoking Survey 2005
    View slide
  • View slide
  • 10%-30% of tenants in affordable housing have asthma, emphysema or heart disease.
    • January 2006, the Air Resources Board declared secondhand smoke to be a toxic air contaminant
    • Requires additional smoke-free protections to be enacted
    • Increases owner liability for knowingly exposing tenants to toxic air contaminant
    • Provides a basis for treating tobacco smoke as a nuisance
    • Creates a significant change of circumstances that allows for greater flexibility in changing lease terms
  • Smoke-Free Tenants and/or Smoke-Free Rules: Your Choice It’s legal to rent only to non-smokers. It’s legal to make all or part of a rental property smoke-free.
  • Navigating the Legal Maze
    • Is there a right to smoke?
    • Do smoking restrictions invade a tenant’s right to privacy?
    • Is a no-smoking policy discrimination?
    • How do disability laws apply?
    • What about enforcement?
  • There is No Right to Smoke
      • Smokers are not a “protected class” such as race or gender
      • Just as employers can hire only non-smokers, so landlords can rent to only non-smokers
    • No-smoking policies are the legal equivalent of other rental restrictions like: “no pets” or “no loud music” rules.
    • Making apartment buildings, including rental units smoke-free is not discrimination.
  • Smoking Restrictions do Not Invade a Tenant’s Right to Privacy
    • The Supreme Court has recognized a constitutional right to privacy – but it is limited to protecting decisions about family relationships and family planning, such as marrying, having children and educating them
    • Courts have found that the “right to privacy” does not include smoking – even in one’s own home
  • No-Smoking Policies are Not Discriminatory
    • It is NOT a violation of anti-discrimination laws to prohibit smoking in multi-unit housing
    • Can’t discriminate based on a person’s race, religion, gender or ethnicity
    • Smokers are not a specially protected group
  • Disability laws may come into play
    • THEN the tenant may be entitled to a “reasonable accommodation” such as:
      • Prohibiting smoking in common areas
      • Moving tenant to another unit
      • Making physical modifications to the unit
    Tenants with a disability have special rights. IF a tenant’s disability is made worse by exposure to secondhand smoke…asthma or severe respiratory problems…
  • Enforcement
    • People who smoke in California are used to obeying smoke-free rules, and more than 90% do so voluntarily. Signage and clear communication are vital to achieving excellent compliance.
    • If you create an outdoor designated smoking area, locate it away from areas where tenants or staff congregate or pass by.
  • Enforcement
    • Voluntary Smoke-Free Policies
    • Federal and state laws already permit apartment owners to adopt smoke-free policies.
    • “ No smoking” policies are reasonable measures to protect life and property.
    • Provide at least 30 days (60 or 90 days is even better) advance notice of rule changes.
    • Smoking restrictions should be included in the lease or house rules, and landlords should enforce violations of the no-smoking policy the same way as a violation of any other rule.
    RESPECT May 2006
  • Enforcement
    • Legislated Smoke-Free Policies
    • Smoke-free laws affecting multi-unit housing are already in place here in San Diego county! More state and local laws are coming, so be prepared.
    • Include a clause in the lease requiring tenants to obey all applicable laws (standard language is available from the San Diego County Apartment Association ). Then enforce violations of smoke-free laws the same way you enforce violations of other laws.
  • Enforcement
    • Legislated Smoke-Free Policies ( continued)
    • If the lease does not include a standard clause about applicable laws, you can ask tenants to comply with a law, but cannot evict them for failing to do so.
    • Every smoke-free law is different. Contact the jurisdiction if you have any questions about your responsibilities. Or, go to the SmokeFreeSanDiego.org website.
  • Affordable Housing RESPECT May 2006 Finding your way through the legal maze
  • Tax Credit for Affordable Housing
    • The California Tax Credit Allocation Committee assigns points on the tax credit application of affordable housing developers.
    • For example points are given for:
    • Energy and water conservation, child care in housing for families, use of “green” building materials.
  • Tax Credit for Affordable Housing
    • In January 2006, the Allocation Committee added a one-point option to the menu for providing smoke-free sections, buildings or projects.
    • To get the Tax Credit Point:
    • Non-smoking sections must consist of at least half (50%) of the units within the building and those units must be next to each other.
  • What Can Affordable Housing Landlords Legally Do?
    • Apartment owners are free under federal law to make buildings totally smoke-free, so long as they “grandfather” current residents who are smokers. HUD Legal Counsel letter of July, 2003
    • “ Grandfathering” means for a reasonable period, such as until lease renewal.
  • Adopt New House Rules
    • To implement a smoke-free policy ~ add “no smoking provisions to house rules in public housing authority buildings.
    • As long as no smoking policies meet the normal house rules criteria – reasonable and fairly applied – HUD approval is not required.
  • Adopt New Lease Language
    • To make no-smoking policies a condition of the lease …
    • HUD approval is required to the extent that the owner is bound to utilize HUD’s model lease.
    • Source~ HUD Legal Counsel letter of July 2003
  • SmokeFreeSanDiego.org
    • The website offers (or will soon offer) the following resources for affordable housing owners/managers, regulators, policy-makers and tenants:
    • Legal Issues
    • Science
    • Laws
    • Implementation Tips
    • Public Opinion
    • Resources
    • Help for tenants who smoke
    SmokeFreeSanDiego.org