How to Ensure Fair Housing Compliance When Considering a Smoke-Free Policy

In this lesson, the Coach reviews how fair housing rules may affect your ability to regulate smoking at your community. There has been a trend toward smoke-free housing policies, which recently got a big boost when HUD ordered all public housing agencies to go smoke-free by 2018. The new rule, which applies only to public housing, will affect 700,000 units nationwide.

HUD says that focusing on public housing is appropriate since public housing agencies (PHAs) have already made significant progress in this area. More than 600 PHAs have already implemented smoke-free policies in at least one of their buildings since HUD began promoting voluntary adoption of smoke-free housing policies in 2009. HUD also noted that smoke-free policies are increasingly being adopted in market-rate rental housing and condominiums.

The rule, which is scheduled to take effect in early February 2017, starts the 18-month time clock counting down to August 2018 when all public housing must be smoke-free. HUD says the rule will protect the health and well-being of public housing residents and staff by reducing exposure to secondhand smoke and is an opportunity to lower overall maintenance costs and reduce the risk of catastrophic fires.

Though the rule applies only to public housing, it’s important for all communities to be aware of HUD’s new smoke-free housing rule, says fair housing attorney Lynn Dover, a partner at Kimball, Tirey & St. John LLP. Often with rules like this, HUD starts with public housing and then later expands to owners and operators of privately owned HUD-subsidized housing. Dover says that market-rate communities should also pay attention to what HUD is doing in the public sector since it sometimes signals a trend of things to come for conventional housing communities.

In this lesson, we’ll clear the air about what you can and can’t do about smoking in your community under fair housing law. Then we’ll suggest six 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’ve learned.

Public Housing Rule at a Glance

Effective date: Feb. 3, 2017

Applies to: All public housing agencies that administer public housing.

Requires: Each public housing agency to implement a smoke-free policy banning the use of prohibited tobacco products in all restricted areas, no later than 18 months from the effective date of the rule (Aug. 3, 2018).

Restricted areas:

• All public housing living units;
• Indoor common areas in public housing;
• Public housing agency administrative office buildings; and
• All outdoor areas up to 25 feet from the public housing and administrative office buildings.

Discretionary restrictions: Public housing agencies may, but are not required to, further restrict smoking to outdoor dedicated smoking areas outside the restricted areas, create additional restricted areas in which smoking is prohibited (for example, near playgrounds), or make their entire grounds smoke-free.

 

WHAT DOES THE LAW SAY?

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

There is no “right” to smoke in a rental home, and smokers are not a protected sub-class under antidiscrimination laws, according to HUD. Responding to objections that its smoke-free public housing rule was an invasion of civil rights, HUD said that there is no constitutional right to smoke. Courts have upheld smoke-free policies as long as they are rationally related to a legitimate government purpose. Chief among them is protecting people from secondhand smoke, but other legitimate reasons include improving resident health and safety, reducing fire hazards, maintaining clean and sanitary conditions, and reducing non-smoker complaints and threats of litigation.

But that doesn’t mean that it’s okay to discriminate against smokers. HUD said its smoke-free rule was not intended to bar smokers from public housing, or to require anyone who smokes to stop. In finalizing this policy, HUD said that the rule doesn’t prohibit individual public housing residents from smoking, and that prospective and current residents are free to smoke in allowable areas outside of public housing facilities and other restricted areas.

In communities that don’t regulate smoking, the most common fair housing complaints are from residents with disability-related problems with exposure to secondhand smoke. Fair housing law bans discrimination based on disability, including refusal to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford a person with a disability an equal opportunity to use and enjoy his home.

To be entitled to a reasonable accommodation, the request must be made by or on behalf 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 that make them susceptible to the effects of secondhand smoke—not to nonsmokers who are simply annoyed by secondhand smoke. It may be obvious—if, for example, the resident uses oxygen for breathing problems—but it may not, since the law is broad enough to cover a variety of impairments, including heart and lung conditions, that may not be obvious or apparent.

Coach’s Tip: The act of smoking itself is not a disability under the Americans with Disabilities Act (ADA), according to HUD, which is likely to see things the same way under fair housing law. Likewise, anyone claiming nicotine addiction as a disability would probably face an uphill battle under either the ADA or the FHA.  

Marijuana: Conflicting Federal, State Laws

Until recently, the law on marijuana was pretty simple: It was illegal under both federal and state law. It still is, at least under federal law. The Controlled Substances Act classifies marijuana as a Schedule 1 controlled substance, which means that it’s considered to have a high potential for dependency and has no accepted medical use. The manufacture, distribution, or possession of marijuana is a federal criminal offense, and it may not be legally prescribed by a physician for any reason under federal law.

Though marijuana is still illegal in many states, efforts to decriminalize marijuana—at least for medical use—have been gaining ground. At last count, 28 states and the District of Columbia have approved comprehensive medical marijuana laws. Though there are significant differences in these measures, most protect patients, their caregivers, and doctors from arrest or prosecution for possession, sale, or distribution of medical marijuana under state drug laws. Some also permit patients or their caretakers to grow a limited number of plants for medical use.

Some states have gone further. Last fall, voters in three states—California, Massachusetts, and Maine—approved ballot measures to legalize the recreational use of marijuana, bringing the total number of states where recreational marijuana is legal to seven.

As far as the federal government is concerned, these state marijuana laws don’t change the fact that using marijuana continues to be an offense under federal law. For the past several years, federal authorities have refrained from enforcing federal criminal laws against individuals using marijuana for medical purposes in states where it’s legal, but it’s too soon to tell whether this will change under the new administration.

Regardless of the law in your state, don’t be confused. For the most part, these laws simply protect people from criminal prosecution under state law—they don’t give anyone an absolute right to use marijuana on your property. Since marijuana is still illegal under federal law, landlords may enforce lease provisions or state laws banning use of the property for illegal purposes, including the use of illegal drugs.

In a 2014 memo, a HUD official reiterated HUD’s policy on the use of marijuana at multifamily assisted properties. Since federal law prohibits all forms of marijuana use, the use of “medical marijuana” is illegal under federal law, even if it’s permitted under state law. Public housing agencies and the owners of federally assisted housing are required by law to deny admission to any household with a member who the owner determines is, at the time of the admission, illegally using a controlled substance. In contrast, HUD said the law gives public and assisted housing providers the discretion to decide whether to evict current residents for illegally using a controlled substance—that is, marijuana.

6 RULES TO ENSURE FAIR HOUSING COMPLIANCE

WHEN CONSIDERING A SMOKE-FREE POLICY

Rule #1: Check All Applicable Laws

When considering whether and where to regulate smoking at your community, it’s important to check all applicable laws based on the nature of your community and where it’s located.

For public housing agencies, HUD’s smoke-free rule is scheduled to go into effect in early February, which starts the 18-month countdown to August 2018, when all public housing must be smoke-free. In a nutshell, the rule bars smoking anywhere indoors and outdoors within 25 feet of the public housing facilities. The rule applies only to public housing—to date, there are no federal requirements to adopt smoke-free policies in federally assisted or market-rate multifamily communities.

Meanwhile, several states have laws and policies that prohibit smoking in private units of multi-unit housing communities that receive state tax credits, according to the American Nonsmokers’ Rights Foundation (ANRF). Examples include Delaware, Hawaii, Maine, Montana, New Hampshire, North Carolina, and Washington.

Currently, there are no state laws requiring market-rate communities to adopt smoke-free policies. In California, which is leading the trend toward smoke-free housing, Dover says that there have been a couple of efforts to pass state legislation to ban smoking in multifamily housing, but so far they’ve been unsuccessful.

Nevertheless, Dover says that California probably has more local no-smoking laws than anywhere else. The details vary, but these local ordinances may ban smoking outright—or restrict smoking in common areas or certain portions of the property at multifamily housing communities.

At last count, the ANRF says that at least 25 cities and counties in California require 100 percent smoke-free housing. These laws typically apply to both privately owned and publicly owned multi-unit communities and do not permit current residents to be grandfathered in so they can continue to smoke in the building. Another 25 restrict smoking: Though they don’t prohibit smoking in all units in all multi-unit housing, they restrict smoking in private units of some specified types of buildings. Some require certain buildings to be 100 percent smoke free, while others apply only to new buildings or newly leased units.

Coach’s Tip: Check state and local laws to determine whether there are disclosure requirements. In Oregon, for example, state law requires rental agreements to include a disclosure of the community’s smoking policy, including whether and where smoking is allowed on the premises.

Rule #2: Adopt and Disclose Smoking-Related Policies

Conventional housing communities can do anything they want to ban or restrict smoking on their property, says Dover, unless a particular state or local law says otherwise. Subject to state and local requirements, you can decide whether—or where—to allow smoking at your community. Some communities ban smoking in designated areas, including common areas, such as entrances and hallways, and amenities, such as pools and fitness centers. Some have made certain floors or buildings smoke-free, while allowing it everywhere else. Some don’t allow it anywhere on the property, or only in certain designated smoking areas.

Whatever you decide, you’ll need a formal policy with all the details about your community’s policy on smoking. Without a policy, people will be able to smoke where they want, so you’ll need the policy to make sure everyone understands whether—or where—smoking is permitted at your community.

And, if you currently have a policy, you should review it to make sure it says what you want, says Dover. For one thing, the policy should be clear about whether your community bans smoking anywhere on the property, including inside rental units and accessory areas, such as balconies or patios. In the alternative, the policy should spell it out if smoking is forbidden only in certain locations, such as common areas or amenities, or allowed only in certain locations, such as designated smoking areas.

It’s also important for the policy to be specific about what it covers. One option is to follow HUD’s lead by adopting the same restrictions as the public housing rule, which bans cigarettes, cigars, and pipes—even waterpipes (also known as hookahs). Or you can go further to ban the use of e-cigarettes (known formally as Electronic Nicotine Delivery Systems or informally as vaping). Though HUD declined to expand the public housing rule to ban e-cigarettes, Dover says that you should consider whether you want your smoking ban to cover e-cigarettes along with other tobacco products.

If your community decides to implement a smoking ban, you should be aware that it’s not something you can put into effect overnight. You can require all new residents to sign a lease that includes smoking restrictions, but you can’t impose the same restrictions on your current residents. Since you’re bound by the terms of your lease, you can’t ban current residents from smoking in their units, unless they voluntarily agree to sign a lease addendum.

Otherwise, you’ll need a transition period so you can deal with each of your current residents as their leases expire. Absent any restrictions in state or local landlord-tenant laws, Dover says that you could, at lease expiration, offer each resident a conditional renewal that requires them to sign a new lease that includes your smoke-free policy or to move out.

Coach’s Tip: For more information about how to implement and enforce a smoke-free policy at your community, see the Fall 2016 Special Issue of the Coach’s sister publication, New York Apartment Law Insider, “How to Implement and Enforce a Smoke-Free Policy at Your Building.” Though aimed at New York communities, the newsletter offers a wealth of resources, including a model tenant survey, model smoke-free lease addendum, and model letter to address smoking violations.

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, particularly from residents with disability-related problems with exposure to secondhand smoke. It may be about smoke drifting outside from an adjoining neighbor’s patio or balcony, or it may be smoke infiltrating into a resident’s unit from neighbors smoking inside their units. Either way, the resident may demand that you order the neighbor to stop smoking or to move him to another unit. 

Dover, who sees this a lot, says there’s been an uptick in reasonable accommodation requests related to complaints about secondhand smoke over the past few years. Follow your standard policies and procedures to determine whether the resident has a disability that makes her susceptible to the effects of secondhand smoke. 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. Merely being annoyed by secondhand smoke doesn’t give the resident any special rights under fair housing law.

Unless the resident has an impairment that’s obvious or apparent, you don’t have to take her word for it, Dover says. You’re entitled to request verification from a credible source, such as a health care provider, that she qualifies as an individual with a disability under the FHA—that is, she has a physical or mental impairment that substantially limits one or more major life activities. Such determination must be made on a case-by-case basis, depending on the nature of the resident’s impairment and the severity of her reaction to secondhand smoke.

Rule #4: Consider Options to Resolve Accommodation Requests

If you determine that the resident has a disability-related problem with exposure to secondhand smoke, then the next hurdle is deciding what to do about her accommodation request. How you’ll handle it will depend on the nature of her complaint—and whether her accommodation request is reasonable.

In general, fair housing law doesn’t require communities to grant an accommodation request unless it’s reasonable—that is, it doesn’t 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.

Whether a resident’s request is unreasonable will depend on your community’s policy on smoking—and what she wants. Unless the neighbor is violating the lease, these cases can be difficult to resolve, Dover says. If your community doesn’t restrict smoking, then it’s probably unreasonable to grant a request to make the entire property smoke-free. The same goes for complaints about neighboring smokers: Since the neighbor isn’t doing anything wrong by smoking cigarettes, it would be unreasonable to grant a request to order the neighbor to stop smoking or to require him to transfer to another unit.

Though you’re limited in what you can do, you should engage in the interactive process to come up with a reasonable alternative that would meet the resident’s disability-related need to limit her exposure to secondhand smoke. Put simply, you should talk to the resident, offer some suggestions, and listen to her preferences. Dover offers some options:

• Offer to have maintenance come to her unit to determine what can be done to improve air quality, though that may not be effective. Research shows that secondhand smoke will intrude into other units even when there is mechanical ventilation or air cleaners are installed, according to HUD.
• Offer the person complaining about secondhand smoke a transfer to an empty unit, though this may not prevent the problem from recurring unless the neighbors in adjoining units agree to sign a smoke-free lease addendum to their leases.
• Offer an early termination of the lease without penalty to the person making the complaint so she can go live at a property where smoking is prohibited.

Coach’s Tip: Documentation is crucial in difficult cases like these because of the risk of a fair housing claim from a resident dissatisfied with your response to his accommodation request. Be prepared to defend your actions by documenting the process, including all your efforts to find a workable solution that would effectively meet his disability-related problems with secondhand smoke exposure.

Rule #5: Consider Smokers’ Accommodation Requests

If your community adopts a smoke-free policy, there’s another type of fair housing complaint you could face—one from smokers. Though the smoking itself is not considered a disability, you could receive requests for a reasonable accommodation from residents who have disability-related difficulties with complying with your smoking restrictions.

The issue came up in public comments HUD received about its smoke-free public housing rule. Some objected that an indoor smoking ban was unfair to persons with disabilities who cannot easily travel outside their units, particularly if they live alone and can’t leave without help. Others commented that it was not right to force the elderly or persons with disabilities outside in bad weather, putting their health at risk. Some commented that people use smoking to deal with medical issues; prohibiting indoor smoking would force them to forgo the use of nicotine to combat their pain.

Others focused on the effects the smoking ban would have on those with mental health issues who may rely on smoking to help deal with those issues. Some stated that residents in acute stages of post-traumatic stress syndrome need to smoke to calm down but can’t leave their apartment. Some stated that smoking helps people calm down and relieve stress, and this rule would increase their burden.

In response, HUD said it was aware of national surveys suggesting that persons with disabilities tend to smoke at a higher rate than persons without a disability, but that the public housing agency had flexibility under the rule to address difficulties encountered by residents.

One option off the table: allowing residents with disabilities to continue to smoke within restricted areas. If a particular resident was especially burdened by the smoke-free policy, HUD said that the community could consider moving that resident to a first-floor unit or closer to an exit door to provide easier access to smoking outside of his unit. Another option would be to provide designated smoking areas with an accessible walkway, cover, lighting, and seating.

HUD said it wasn’t aware of any medical conditions for which smoking is considered a legitimate, proven treatment. If a resident needed nicotine treatment to quit smoking, HUD said that it can be delivered orally or through dermal applications. As for smokers with behavioral health conditions, such as mental or substance abuse disorders, HUD pointed to research showing that they would actually benefit from quitting smoking.

Coach’s Tip: Aside from disability-related complaints, 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. 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.

Rule #6: Include Marijuana in Smoke-Free Policy

Though HUD’s public housing rule—and most smoke-free housing policies—are aimed at tobacco products, there’s nothing to stop you from expanding your smoking ban to cover marijuana. Though the drug remains illegal under federal law, many states have decriminalized the use of marijuana for medical or recreational use.

In California, for example, voters recently approved the use of marijuana for recreational use, so Dover recommends that communities update their no-smoking policies to include marijuana. Despite the new state law, marijuana remains illegal under federal law, so you’ll still have grounds to address complaints about secondhand marijuana smoke under lease provisions banning the use of the property for illegal activities. But because of the conflict between state and federal law, it’s something of a gray area, so adding marijuana to your no-smoking policy gives you one more way to deal with complaints about marijuana smoke at the community. It might not stop anyone from using other forms of the drug, but it might head off complaints about secondhand marijuana smoke.

But what about requests from residents with disabilities who ask for a reasonable accommodation to use medical marijuana? Dover says she has seen requests to use medical marijuana, most often when residents complain about the odor of marijuana coming from neighbors’ units. Dover notes that requests like these are the flip side of the usual accommodation requests involving smoking—when it’s about cigarettes, the requests come from people who want to be away from the smoke; when it’s about marijuana, the requests come from people who say they need to use it. But unlike cigarettes, which are legal, marijuana is still illegal under federal law. Most leases include provisions that ban residents from creating a nuisance or illegal use of the property under federal, state, or local law.

When people complain, Dover says that you should talk to the neighbor. If he says he has a medical marijuana card, then you should treat it as a request for a reasonable accommodation.

Whether you must grant it is another matter. The law is still evolving, but HUD says that requests to permit use of medical marijuana in public and federally assisted housing are not reasonable under the FHA. In a 2011 memo, HUD stated that federal and state nondiscrimination laws don’t require public housing agencies and federally assisted housing providers to accommodate requests by current or prospective residents with disabilities to use medical marijuana. Court rulings are few, but at least one court came to the same conclusion.

Example: In 2014, a court ruled that a federally assisted housing community in Michigan did not have to allow use of medical marijuana as a reasonable accommodation under fair housing law.

A few months after the resident moved in, the management company sued to evict her for violating lease provisions banning drug-related or criminal activity. The resident, who was disabled, had a state-issued medical marijuana card. She argued that she was entitled to a reasonable accommodation for use of medical marijuana since it was legal under state law.

The court disagreed. Although state law allowed medical marijuana use, it was trumped by federal law, which classified marijuana as an illegal drug with no medically acceptable uses. Requiring the community to grant the reasonable accommodation to use marijuana would force the community to violate federal law and fundamentally alter the nature of its operations by thwarting its mission to provide drug-free federally assisted housing [Forest City Residential Management Inc. v. Beasley, December 2014].

• Fair Housing Act: 42 USC §3601 et seq.

COACH Source

Lynn N. Dover, Esq.: Partner, Law Offices of Kimball, Tirey & St. John LLP, 7676 Hazard Center Dr., Ste. 900, San Diego, CA 92108; (619) 234-1690; lynn.dover@kts-law.com.