Restricted Smoking area or No Smoking At All
By: Randall A. Pentiuk, Editor & April E. Knoch, Esq.

On September 15, 2010, the U.S. Department of Housing and Urban Development issued a policy statement regarding implementation of optional smoke-free housing. The policy  statement urges owners and management agents  participating in specific Multi-family Housing rental assistance programs to implement smoke-free housing in some or all of the properties they own or manage. 

Such a policy is not necessarily limited to HUD regulated properties.  Rather, with input from your attorney and careful review of your Cooperative’s member make-up, implementation for non-regulated housing is not only possible, it is a valid and legal method to protect the corporation’s most precious asset, its members. Recent scientific studies show that secondhand smoke is more than just a nuisance and is deserving of its own set of rules.

The health risks associated with the exposure to second hand smoke have been shown as a leading factor in the development and exacerbation of asthma and other respiratory illnesses, cardiovascular disease, and cancer.  In 2006, Michigan’s Department of Health and Human Services issued a publication regarding the risks of involuntary exposure to tobacco smoke. Within this publication, the Department      reports various scientific findings which support indoor smoking bans. The report conclusively determined that separation of smokers from non-smokers, cleaning the air, and ventilating buildings cannot eliminate the exposure of nonsmokers to secondhand smoke.

A second important note to HUD’s policy statement is the risk factor associated with structural damage caused by home fires.  Citing from the survey findings of the United States Fire Administration, smoking was listed as the number one cause of home fire deaths in the United States and that 25 percent of people killed in smoking- related fires are not the actual smokers.  Often the victims are children and neighbors.

In addition to the unintended fatalities, Cooperative’s suffering structural damage from smoking related fires also pay an economic penalty in the form of increased insurance risk premiums. Implementation of smoke-free policies could therefore act as a means to reduce property insurance premiums by showing a decreased risk in the form of rules and regulations sanctioning indoor smoking.

Adoption of a smoke-free policy, however, does not come without its own risks.  Regulation of personal habits has become a hotbed topic as more and more government regulations are enacted for the “general health and welfare of the public.” Many smokers are still smarting from state smoking bans in public places, therefore injecting rules affecting personal behavior within one’s own home can be very tricky.

The first thing to remember with any new policy or rule is to ensure it does not run afoul of existing fair housing and civil rights laws.  No policy or rule should ever deny occupancy to an individual merely because he or she may smoke, and neither should you maintain smoking and nonsmoking specific wait-lists. You can, however, inquire whether the applicant or any of his or her household members are smokers.  This same question may also be asked of existing members at the time of recertification.  In the event a smoke-free policy is implemented, you must advise your existing members that they have the option of either terminating occupancy, or, transferring to another available unit.

If you are still a little reluctant about making an all-out ban on indoor smoking, you also have the option of grandfathering existing members. In this situation all incoming members will be subject to the smoke-free policy and over time the entire development will become smoke-free with little or no hassle.  An alternative to the grandfather clause is of course to designate certain buildings as smoke-free keeping in mind that you still need to follow wait-list procedures and give the available unit, smoking or non, to the first eligible household on the list. Make certain that you advise them of the unit location and if they choose to pass on the unit it will not be due to any discriminatory measure in violation of fair housing and civil rights laws.

For those subject to HUD oversight, all new smoking-related House Rules must be implemented in accordance with HUD Handbook 4350.3 REV-1, Occupancy Requirements of Subsidized Multifamily Housing Programs, paragraphs 6-9 and 6-12.  Any new rule must be circulated to all members no less than 30 days prior to enforcement.  In the event a member’s initial occupancy term has not yet completed, you must provide him or her with no less than 60 days’ notice of the change, prior to the end of the occupancy term.  Once the required    notice is given and the rules go into effect, violations of the smoke-free policy may be considered a material noncompliance, especially if the individual is a repeat offender.