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…
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.
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
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.
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
The website offers (or will soon offer) the following resources for affordable housing owners/managers, regulators, policy-makers and tenants: