Clearing the Air:  Legal Aspects of Smoke-free Affordable Housing Debra Kelley American Lung Association of California
Disclaimer <ul><li>This presentation is not offered or intended as legal advice. It is created to provide general informat...
<ul><li>86% of adults do  not  smoke </li></ul><ul><li>70% of low income adults do  not  smoke </li></ul><ul><li>93% of se...
10%-30% of tenants in affordable housing have asthma, emphysema or heart disease.
<ul><li>January 2006, the Air Resources Board declared secondhand smoke to be a toxic air contaminant </li></ul><ul><li>Re...
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...
Navigating the Legal Maze <ul><li>Is there a right to smoke? </li></ul><ul><li>Do smoking restrictions invade a tenant’s r...
There is  No  Right to Smoke <ul><ul><li>Smokers are not a “protected class” such as race or gender </li></ul></ul><ul><ul...
Smoking Restrictions do  Not  Invade a Tenant’s Right to Privacy <ul><li>The Supreme Court has recognized a constitutional...
No-Smoking Policies are  Not  Discriminatory <ul><li>It is NOT a violation of anti-discrimination laws to prohibit smoking...
Disability laws may come into play <ul><li>THEN the tenant may be entitled to a “reasonable accommodation” such as: </li><...
Enforcement <ul><li>People who smoke in California are used to obeying smoke-free rules, and more than 90% do so voluntari...
Enforcement  <ul><li>Voluntary Smoke-Free Policies </li></ul><ul><li>Federal and state laws already permit apartment owner...
Enforcement  <ul><li>Legislated Smoke-Free Policies </li></ul><ul><li>Smoke-free laws affecting multi-unit housing are alr...
Enforcement  <ul><li>Legislated Smoke-Free Policies ( continued) </li></ul><ul><li>If the lease does not include a standar...
Affordable Housing RESPECT May 2006  Finding your way through the legal maze
Tax Credit for Affordable Housing <ul><li>The California Tax Credit Allocation Committee assigns points on the tax credit ...
Tax Credit for Affordable Housing <ul><li>In January 2006, the Allocation Committee added a one-point option to the menu f...
What Can Affordable Housing  Landlords Legally Do? <ul><li>Apartment owners are free under federal law to make buildings t...
Adopt New House Rules <ul><li>To implement a smoke-free policy ~ add “no smoking provisions to house rules in public housi...
Adopt New Lease Language <ul><li>To make no-smoking policies a condition of the lease …  </li></ul><ul><li>HUD approval is...
SmokeFreeSanDiego.org
<ul><li>The website offers (or will soon offer) the following resources for affordable housing owners/managers, regulators...
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Legal Issues for smoking and housing

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Legal Issues for smoking and housing

  1. 1. Clearing the Air: Legal Aspects of Smoke-free Affordable Housing Debra Kelley American Lung Association of California
  2. 2. Disclaimer <ul><li>This presentation is not offered or intended as legal advice. It is created to provide general information only. </li></ul><ul><li>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. </li></ul><ul><li>Attendees should seek the advice of their own attorneys to discuss the legal issues that might arise with a smoke-free housing policy </li></ul>
  3. 3. <ul><li>86% of adults do not smoke </li></ul><ul><li>70% of low income adults do not smoke </li></ul><ul><li>93% of seniors do not smoke </li></ul><ul><li>California Dept of Health Services Adult Smoking Survey 2005 </li></ul>
  4. 4.
  5. 5. 10%-30% of tenants in affordable housing have asthma, emphysema or heart disease.
  6. 6. <ul><li>January 2006, the Air Resources Board declared secondhand smoke to be a toxic air contaminant </li></ul><ul><li>Requires additional smoke-free protections to be enacted </li></ul><ul><li>Increases owner liability for knowingly exposing tenants to toxic air contaminant </li></ul><ul><li>Provides a basis for treating tobacco smoke as a nuisance </li></ul><ul><li>Creates a significant change of circumstances that allows for greater flexibility in changing lease terms </li></ul>
  7. 7. 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.
  8. 8. Navigating the Legal Maze <ul><li>Is there a right to smoke? </li></ul><ul><li>Do smoking restrictions invade a tenant’s right to privacy? </li></ul><ul><li>Is a no-smoking policy discrimination? </li></ul><ul><li>How do disability laws apply? </li></ul><ul><li>What about enforcement? </li></ul>
  9. 9. There is No Right to Smoke <ul><ul><li>Smokers are not a “protected class” such as race or gender </li></ul></ul><ul><ul><li>Just as employers can hire only non-smokers, so landlords can rent to only non-smokers </li></ul></ul><ul><li>No-smoking policies are the legal equivalent of other rental restrictions like: “no pets” or “no loud music” rules. </li></ul><ul><li>Making apartment buildings, including rental units smoke-free is not discrimination. </li></ul>
  10. 10. Smoking Restrictions do Not Invade a Tenant’s Right to Privacy <ul><li>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 </li></ul><ul><li>Courts have found that the “right to privacy” does not include smoking – even in one’s own home </li></ul>
  11. 11. No-Smoking Policies are Not Discriminatory <ul><li>It is NOT a violation of anti-discrimination laws to prohibit smoking in multi-unit housing </li></ul><ul><li>Can’t discriminate based on a person’s race, religion, gender or ethnicity </li></ul><ul><li>Smokers are not a specially protected group </li></ul>
  12. 12. Disability laws may come into play <ul><li>THEN the tenant may be entitled to a “reasonable accommodation” such as: </li></ul><ul><ul><li>Prohibiting smoking in common areas </li></ul></ul><ul><ul><li>Moving tenant to another unit </li></ul></ul><ul><ul><li>Making physical modifications to the unit </li></ul></ul>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…
  13. 13. Enforcement <ul><li>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. </li></ul><ul><li>If you create an outdoor designated smoking area, locate it away from areas where tenants or staff congregate or pass by. </li></ul>
  14. 14. Enforcement <ul><li>Voluntary Smoke-Free Policies </li></ul><ul><li>Federal and state laws already permit apartment owners to adopt smoke-free policies. </li></ul><ul><li>“ No smoking” policies are reasonable measures to protect life and property. </li></ul><ul><li>Provide at least 30 days (60 or 90 days is even better) advance notice of rule changes. </li></ul><ul><li>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. </li></ul>RESPECT May 2006
  15. 15. Enforcement <ul><li>Legislated Smoke-Free Policies </li></ul><ul><li>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. </li></ul><ul><li>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. </li></ul>
  16. 16. Enforcement <ul><li>Legislated Smoke-Free Policies ( continued) </li></ul><ul><li>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. </li></ul><ul><li>Every smoke-free law is different. Contact the jurisdiction if you have any questions about your responsibilities. Or, go to the SmokeFreeSanDiego.org website. </li></ul>
  17. 17. Affordable Housing RESPECT May 2006 Finding your way through the legal maze
  18. 18. Tax Credit for Affordable Housing <ul><li>The California Tax Credit Allocation Committee assigns points on the tax credit application of affordable housing developers. </li></ul><ul><li>For example points are given for: </li></ul><ul><li>Energy and water conservation, child care in housing for families, use of “green” building materials. </li></ul>
  19. 19. Tax Credit for Affordable Housing <ul><li>In January 2006, the Allocation Committee added a one-point option to the menu for providing smoke-free sections, buildings or projects. </li></ul><ul><li>To get the Tax Credit Point: </li></ul><ul><li>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. </li></ul>
  20. 20. What Can Affordable Housing Landlords Legally Do? <ul><li>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 </li></ul><ul><li>“ Grandfathering” means for a reasonable period, such as until lease renewal. </li></ul>
  21. 21. Adopt New House Rules <ul><li>To implement a smoke-free policy ~ add “no smoking provisions to house rules in public housing authority buildings. </li></ul><ul><li>As long as no smoking policies meet the normal house rules criteria – reasonable and fairly applied – HUD approval is not required. </li></ul>
  22. 22. Adopt New Lease Language <ul><li>To make no-smoking policies a condition of the lease … </li></ul><ul><li>HUD approval is required to the extent that the owner is bound to utilize HUD’s model lease. </li></ul><ul><li>Source~ HUD Legal Counsel letter of July 2003 </li></ul>
  23. 23. SmokeFreeSanDiego.org
  24. 24. <ul><li>The website offers (or will soon offer) the following resources for affordable housing owners/managers, regulators, policy-makers and tenants: </li></ul><ul><li>Legal Issues </li></ul><ul><li>Science </li></ul><ul><li>Laws </li></ul><ul><li>Implementation Tips </li></ul><ul><li>Public Opinion </li></ul><ul><li>Resources </li></ul><ul><li>Help for tenants who smoke </li></ul>SmokeFreeSanDiego.org

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