Clearing The Air: How To Comply With Fair Housing Laws When Dealing With Smoking

October 9, 2010

In this month's issue, we'll discuss whether and to what extent fair housing laws affect your ability to regulate smoking at your community.

In this month's issue, we'll discuss whether and to what extent fair housing laws affect your ability to regulate smoking at your community.

Until recent years, people were free to smoke in bars and restaurants, in the workplace, and anywhere else they liked. Though the adverse health effects of smoking has been known for decades, it was not until the focus shifted to secondhand smoke that public health officials began to take steps to curb smoking in public. Despite initial resistance, smoking restrictions are now common in the workplace and have expanded to bars, restaurants, and other entertainment venues—sometimes even outdoor spaces.

In the multifamily housing industry, some communities have taken steps to regulate smoking in public areas, such as leasing offices, and amenities such as pools and fitness centers. Some also limit smoking in common areas such as entryways and hallways, but relatively few restrict smoking inside units themselves—perhaps based on the belief that smoking in the privacy of one's own home is a personal civil right beyond the reach of any interference.

That may soon change as part of a trend toward smoke-free multifamily housing, particularly in public housing and federally assisted communities. The federal government has come out in favor of smoking bans in public housing. As of August 2010, at least 184 public housing authorities have adopted smoke-free policies for some or all of their apartment buildings, according to the Smoke-Free Environmental Law Project.

Smoke-free market-rate communities are also under development as surveys show growing numbers of renters who prefer smoke-free housing. Aided by new research on the health risks of thirdhand smoke—pollutants lingering inside units long after smokers have departed—public health advocates tout the benefits of smoke-free housing, including improved health of residents and staff, reduced fire risks and related insurance premiums, and lower maintenance and turnover expenses.

Despite these advantages, some experts note reluctance in many communities to regulate smoking out of concern that it could lead to potential legal liability. But it's just the opposite, according to the National Multi Family Council: Regulating smoking could reduce potential liability, such as lawsuits for nuisance or breach of lease provisions regarding peaceful enjoyment of the residence or warranty of habitability based on the infiltration of secondhand smoke into neighboring units. The results have been mixed, but in some cases, courts have awarded damages—or offset awards for back rent—because of problems caused by secondhand smoke.

There also seems to be some concern among community owners and managers that regulating smoking inside units could trigger a fair housing claim—when in fact, the experts warn that the more likely source of potential liability is disability-related claims by residents who have health problems triggered or worsened by secondhand smoke seeping into their units from neighboring units.

In this month's issue, we'll clear the air to explain what you can or can't do about smoking in your community under fair housing law. Then we'll suggest five rules to help you prevent potential fair housing problems with respect to smoking policies. Finally, you can take the Coach's Quiz to see how much you have learned.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) prohibits discrimination in housing because of race, color, religion, sex, national origin, familial status, or disability.

In general, the law does not protect smokers or guarantee anyone the right to smoke. In cases challenging smoking restrictions in the workplace or public places, courts have held that smoking is not protected under the U.S. Constitution. As one court put it, “There is no more a fundamental right to smoke cigarettes than there is to shoot up or snort heroin or cocaine…or run a red light.”

By the same token, courts have rejected claims that smoking or addiction to nicotine is a disability under federal or state civil rights laws. For example, in an employment discrimination claim, a Michigan court ruled that nicotine addiction was not a handicap under state civil rights law because it did not substantially limit a major life activity. The court rejected the employee's argument likening nicotine addiction to alcohol addiction, noting that alcoholism was included in the state law's definition of disability, whereas nicotine addiction was not. The court said that the employee's claimed “handicap” was shared by countless other individuals in the workplace and in society as a whole, and that automatically labeling it as a disability would do a gross disservice to the truly handicapped [Stevens v. Inland Waters, Inc., November 1996].

HUD officials have stated that the right to smoke—or not to smoke—is not a right protected under federal civil rights or other laws enforced by HUD—which would include fair housing laws. In a 2003 memo addressing smoking policies in HUD-assisted housing communities, a HUD official stated that privately owned communities may restrict or prohibit smoking in common areas or individual units, subject to state or local requirements. According to the official, federal fair housing law does not prohibit the separation of smoking and nonsmoking residents in privately owned multifamily housing communities and, in fact, does not prohibit a private owner of an apartment community from refusing to rent to smokers.

Last year, HUD signaled support for smoke-free housing by issuing a formal notice that public housing authorities “are permitted and strongly encouraged to implement a non-smoking policy at their discretion, subject to state and local law.” The notice warned of the dangers of secondhand smoke migrating between units in multifamily housing, citing the 2006 Surgeon General's report identifying hundreds of chemicals in secondhand smoke that are known to be toxic as well as statistics showing that secondhand smoke causes almost 50,000 deaths in adult nonsmokers in the United States each year, including roughly 3,400 from lung cancer and another 22,000 to 69,000 from heart disease. Furthermore, the notice stated that smoking is an important source of fires and fire-related deaths, citing federal statistics that smoking is the leading cause of fire deaths in multifamily housing.

Finally, the notice pointed to increased turnover costs when apartments are vacated by smokers: Additional paint to cover smoke stains, cleaning of ducts, replacing stained window blinds, or replacing carpets damaged by cigarettes can increase the cost to make a unit occupant-ready.

COACH'S TIP: Although federal fair housing law does not prevent a community from banning or restricting smoking, HUD officials have warned against adopting an immediate no-smoking policy in public housing or federally assisted communities. In general, communities are advised to “grandfather in” current residents who smoke—at least until their leases are up for renewal. In addition, HUD approval may be required if such communities want to make nonsmoking policies a condition of the lease.

Disability claims. Despite the emerging trend toward smoke-free housing, federal fair housing law does not require communities to stamp out smoking by residents. In general, fair housing law permits communities to make their own decisions about whether and where smoking is permitted on the premises, subject to state or local requirements.

Nevertheless, communities could face fair housing liability based on the effects of secondhand smoke on a resident who meets the FHA's definition of an individual with a disability—that is, an individual with a physical or mental impairment that substantially limits one or more major life activities. In general, those provisions apply to residents with serious health problems—not to nonsmokers who are simply annoyed by—or experience a mild allergic reaction to—secondhand smoke.

HUD clarified the distinction in its 1992 memo recognizing multiple chemical sensitivity (MCS) and environmental illness (EI) as handicaps. As HUD explained, MCS refers to a condition that causes a person to have severe hypersensitivitity to a number of different common substances, while EI refers more generally to a condition that causes a person to have any type of severe allergic reaction to one or more substances. In contrast to those conditions, HUD says that ordinary allergies generally would not amount to a disability because they either are not impairments or do not substantially limit a major life activity.

On the other hand, individuals who have a severe hypersensitivity to tobacco smoke or other impairments, such as respiratory problems or heart disease, could qualify under the disability protections if exposure to secondhand smoke interferes with a major life activity, most notably breathing. Among other things, fair housing law may require communities to permit reasonable modifications, such as upgrading ventilation systems, or grant reasonable accommodation requests, such as an exception to transfer rules, when necessary for the individual with a disability to fully use and enjoy the housing.

FIVE RULES FOR COMPLYING WITH FAIR HOUSING LAWS WHEN DEALING WITH SMOKING

Rule #1: Check State and Local Requirements

When considering whether and how your community should regulate smoking on the premises, it's important to check whether your community is subject to state and local laws on smoking in multifamily housing communities.

On the state level, for example, a new smoking disclosure law in Oregon now requires rental agreements to include a disclosure of the community's smoking policy, including whether and where smoking is allowed on the premises.

On the local level, a number of municipal and county governments have enacted ordinances that restrict smoking within certain areas of privately owned rental housing communities. As of 2009, eight cities in California ban smoking within a certain percentage of units in multifamily housing, according to the American Lung Association of California's Center for Tobacco Policy and Organizing.

And in Washington, D.C., the law allows property owners—both commercial and residential—to post signs barring smoking in public spaces within 25 feet from the building wall or the distance to the far side of the adjacent public sidewalk, whichever is less.

Rule #2: Adopt and Disclose Smoking-Related Policies

Having a written policy helps avoid potential fair housing problems by letting everyone know whether and where smoking is permitted at your community.

Subject to state and local requirements, communities generally have the discretion whether to permit, restrict, or ban smoking on the premises. Some communities ban smoking in designated areas, including leasing offices; amenities such as pools and fitness centers; and common areas, such as entrances and hallways. Some communities designate certain floors or buildings as smoke-free, while others have adopted community-wide smoking bans.

There are a variety of resources available to communities interested in adopting smoking restrictions, such as the American Lung Association's Smokefree Housing Vermont. The organization's Web site (www.smokefreehousingvt.org/tools_guides1.html) offers tools for community owners and managers, such as sample surveys, policies, and resident communications.

Communication is vital to the process, according to the organization. To determine how your current residents feel about smoking restrictions, for instance, the organization suggests conducting a survey to get their reaction and level of interest. Recognizing that communities should tailor their policies to their own individual needs, the organization offers samples of policy language to add to your rules or leases. And the organization recommends giving residents advance notice about proposed changes—through letters and community meetings—to explain the reasons for the change and the specifics of the policy, including the consequences of failure to comply.

COACH'S TIP: To aid in the enforcement of your policy, legal experts advise adding it as an addendum to the lease for all new or renewing residents. For detailed information on what it should cover, see “Use Tough Lease Addendum to Set No-Smoking Policy” in the May 2006 issue of Apartment Building Management Insider at www.apartmentmanagementinsider.com.

Rule #3: Take Complaints About Secondhand Smoke Seriously

Whatever your policy about whether and where smoking is allowed at your community, it's important to address complaints about secondhand smoke. If your community restricts or bans smoking on the premises, complaints about secondhand smoke could alert you to violations of your policy. Unless you take them seriously, your community could be vulnerable to potential liability for damages based on nuisance or lease violations.

Furthermore, complaints about secondhand smoke could trigger a fair housing claim—but generally only if the resident qualifies under the FHA's disability-related protections, which requires a physical or mental impairment that substantially limits a major life activity. Such determination must be made on a case-by-case basis, depending on the nature of the resident's impairment and the severity of his reaction to secondhand smoke.

Example: A Massachusetts court ruled against a resident who sued a public housing authority for failing to respond adequately to her complaints about infiltration into her unit of smoke from her downstairs neighbor. The court ruled that the resident did not qualify as a handicapped person under state fair housing law based on evidence that she had “vasomotor rhinitis,” defined by her doctor as “a secondary increased reactivity to nonspecific irritants…as a consequence of allergic inflammation in the nasal passages.” The court ruled that the restrictions described by the resident—not wearing or being around anyone who wore perfume or smoked—fell well short of the substantial limitation of any major life activity. Though she complained of irritation in her eyes and disruptions in her sleep from her neighbor's smoke, it was not enough to prove a substantial limitation of the major life activities of seeing, thinking, or sleeping [Donnelley v. Cohasset Housing Auth., March 2003].

In contrast, courts have found that hypersensitivity to tobacco smoke may qualify as a disability in civil rights cases involving employment discrimination. Because of similarities in how the laws define disability or handicap, courts in fair housing cases often rely on rulings involving other civil rights laws.

That was the position taken by HUD in its 1992 memo on MCS and EI. The memo pointed to a California employment discrimination case in which the court found that hypersensitivity to tobacco smoke was a handicap under state law [County of Fresno v. Fair Employment and Housing Commission of the State of California, January 1991]. Since the law's definition of disability applied equally to employment and housing, HUD stated that “the holding that hypersensitivity to tobacco smoke qualifies as a disability would apply in housing discrimination cases also.”

Rule #4: Consider Accommodation, Modification Requests from Residents with Disabilities

If you determine that the resident complaining about secondhand smoke qualifies as an individual with a disability, then you must consider requests to make reasonable modifications or reasonable accommodations to enable the resident to fully enjoy her residence.

The American Nonsmokers' Rights Foundations advises community owners and managers to work creatively with residents toward a mutually satisfying solution to problems related to secondhand smoke. Examples of modifications include cleaning, installing or upgrading air filtration or ventilation systems, and the like, although health experts disagree as to their effectiveness in eliminating problems due to seepage of secondhand smoke from neighboring units or common areas. Accommodation requests could include transferring either the resident or the smoker to another unit, designating adjacent common areas as smoke-free, or allowing early lease termination.

To cover your bases when attempting to resolve complaints about secondhand smoke, apply your general policies and procedures for handling disability-related accommodation or modification requests. In general, an individual is entitled to a reasonable accommodation or modification when there is a clearly identifiable disability-related need for the requested accommodation or modification. If either the disability or the disability-related need for the requested accommodation or modification is not apparent, the law allows you to request certain disability-related information needed to evaluate the request.

Furthermore, you do not have to grant a request for an accommodation or modification unless it's reasonable—that is, does not impose an undue or financial and administrative burden on the community or would fundamentally alter the nature of the community's operations. Though communities may reject unreasonable requests, HUD says that they should do so only after engaging in an “interactive process” to discuss whether there is a reasonable alternative that would effectively address the resident's disability-related needs without excessively burdening the community.

In a 2004 letter, a HUD official referred to these provisions in response to a query about whether a request by a disabled resident to declare an entire building smoke-free was a reasonable accommodation. Although each request must be evaluated on a case-by-case basis, the HUD official stated that the third-party interests of other residents were relevant to the inquiry. Factors to consider were whether the requested accommodation was necessary to the disabled person's use and enjoyment of the property and whether the request was reasonable. If the community proposed an alternative, less onerous, accommodation, it would be evaluated to determine whether it meets the disabled resident's needs.

Rule #5: Enforce Smoking Rules Consistently

Aside from disability-related complaints about the effects of secondhand smoke, there is another way that communities could trigger liability under fair housing law—inconsistent enforcement of smoking policies based on race, national origin, or other characteristic protected under federal, state, and local law. As the HUD official noted in the 2003 memo, imposition of a smoking ban would not violate fair housing law unless the refusal to rent was based on one or more of the personal characteristics specified by the law.

Statistics show demographic differences among smokers, many of which are protected characteristics under federal, state, or local fair housing laws. According to the Centers for Disease Control and Prevention (CDC), 46 million—or roughly one in five—U.S. adults were current smokers in 2008 (the most recent year for which numbers are available). The CDC statistics showed gender differences—23 percent of men and 18 percent of women were smokers—as well as differences based on race and ethnicity—the highest rate was among American Indians and Alaska Natives (32 percent), roughly even rates among whites and African Americans (22 percent and 21 percent, respectively), and lower rates among Hispanics (16 percent) and Asian Americans (10 percent).

Meanwhile, mental health experts point to a very high rate of smoking among people living with mental illness. Citing statistics that more than 44 percent of all cigarettes in America were consumed by individuals living with mental illness or substance abuse problems, the experts say that's about twice as much as other persons.

Recently, the American Lung Association warned of the trend of higher tobacco use among the lesbian, gay, bisexual, and transgender (LGBT) community. According to its report, gay, bisexual, and transgender men are 2.0 to 2.5 times more likely to smoke than heterosexual men, while lesbian, bisexual and transgender women are 1.5 to 2.0 times more likely to smoke than heterosexual women.

Communities need to pay particular attention to how they apply and enforce smoking policies. It would be a violation of fair housing law to rely on no-smoking policies as a way to exclude members of a protected class or to enforce smoking restrictions more stringently against applicants, residents, or their guests based on a protected characteristic.

COACH Source

Carl York: Vice President, Sentinel Real Estate Corp., 8495 Scenic View Dr., Ste. 106, Fishers, IN 46038; (317) 570-6724; York@sentinelcorp.com.

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