Smoke-Free Public Housing: Legal Issues and Implications

1. Smoke-Free Public Housing:Legal Issues and Implications

2. www.mdsmokefreeapartments.org

3. Why Adopt a Smoke-Free Policy? • Health Impact • “There is no safe level of exposure to tobacco smoke” – Report of the Surgeon General (2010) • Secondhand smoke can have 80-90% of the health impact of chronic smoking (J. Barnoya, MD, MPH (2005)) • Economic Impact • Reduce property owners/managers maintenance and turnover costs • Reduce health care and loss of life costs • Reduce insurance premiums • Limit liability for owners/managers • Safety Impact • Reduce risk of residential fire

4. Benefits of Going Smoke-Free Protection From Secondhand Smoke • Secondhand smoke (SHS) contains more than 7,000 identifiable compounds released as gases or particles, including at least 70 known cancer causing compounds • 50,000 nonsmokers die each year from cancer caused by SHS • Even brief exposure increases the risk of respiratory infections, ear problems and asthma, especially in children and other health vulnerable populations • “At present, the only means of effectively eliminating health risks associated with indoor exposure is to ban smoking activity.” - American Society of Heating, Refrigerating & Air Conditioning Engineers (ASHRAE)

5. Benefits of Going Smoke-Free Lower Costs • 2012 Indiana study estimates SHS leads to health care and loss of life costs in excess of $1.3 billion annually • HUD estimates that apartment turnover costs are 2 to 7 times greater when smoking is permitted • A survey of housing authorities and subsidized housing facilities in New England found the cost to rehabilitate a smoking unit was $1,500 to $3,000 more than a non-smoking unit • Some insurance companies offer discounts on property casualty insurance for multi-unit owners with a smoke-free policy

6. Cost of Rehabbing a Unit Source: Smoke-Free Housing New England, 2009

7. Benefits of Going Smoke-Free Reduce Risk of Fire • Smoking is among the leading causes of residential fires in multi-unit buildings and the number one cause of fire deaths in the U.S. (Source: National Fire Protection Association) • National Fire Protection Association 2010 Data: • 17,500 smoking related residential fires • 540 civilian deaths • 1,320 civilian injuries • $535 million in direct property damage • #1 NFPA Recommendation to avoid residential fires: “If you smoke, smoke outside”

8. Benefits of Going Smoke-Free Soaring Demand • Only 18% of American adults smoke, and roughly half that total smoke in the home • 8 out of 10 asked in a multi-state survey indicate theywould prefer to live in a smoke-free complex • 1 out of 2 say they have moved or would move because of tobacco smoke drift

9. Is it Legal? No Constitutional Right to smoke • Proponents of smokers’ rights often argue that smoke-free laws or policies: • Violate an individual’s constitutional right to privacy; or • Discriminate against smokers in violation of the Equal Protection Clause • All courts, including the U.S. Supreme Court, considering the issue have found: • Smoking is not a protected liberty, and • Smokers are not a protected class of people • Important Note: Several state constitutions include a broader protections than the federal constitution; however, no state court has found smoking is a constitutionally protected right.

10. Is it Legal? No smoking laws and policies do NOT violate the right to privacy • The Constitution protects the “fundamental right to privacy,” and any law encroaching upon this right must pass a heightened level of court scrutiny • The U.S. Supreme Court has repeatedly held the fundamental right to privacy only applies to marriage, intimate relationships and rearing of children • No court has extended the right to include smoking No smoking laws and policies do NOT discriminate against smokers • The Equal Protection Clause guarantees “equal protection of the laws,” meaning a law cannot treat groups of people differently without adequate justification • Laws discriminating against an inherent characteristic (i.e. gender or race) are rarely upheld, but laws discriminating against other groups need only be “rationally related to a legitimate government goal.”

11. Is it Legal? No Federal Law Prohibits Smoke-Free Laws or Policies • All 50 states (and the District of Columbia) have the authority to enact smoke-free housing laws • No federal or state law prohibits an owner, property manager or housing authority from making their apartment building smoke-free

12. Is it Legal? Family Smoking and Tobacco Control Act (2009) Sec. 916. Preservation of State and Local Authority. “Nothing…shall be construed to limit the authority of a…State or political subdivision of a State…to enact, adopt, promulgate, and enforce any law, rule, regulation or other measure with respect to tobacco products that is in addition to, or more stringent than, requirements established under this chapter, including a law, rule, regulation or other measure relating to or prohibiting the sale, distribution, possession, exposure to, access to, advertising and promotion of, or use of tobacco products by individuals of any age…”

13. Who has the Authority to Enact Smoke-Free Policies? PHAs/SECTION 8/SUBSIDIZED HOUSING Since July 2009 HUD has issued three notices addressing the benefits and legality of smoke-free public housing. Most recently, HUD issued Notice H 2012-22 which “strongly encourages Public Housing Authorities to implement smoke-free policies” “The right to smoke or not to smoke is not a right that is protected under the Civil Rights Act of 1964 because smokers a not a protected class under federal law.” – U.S. Department of Housing and Urban Development HUD notices applies to all Multifamily Housing rental assistance programs

14. HUD Requirements • Smoke-free policies are optional, but HUD established several requirements for those PHAs that choose to adopt these policies, including: • Update the House Rules and Policies and Procedures • Be in accordance with state/local law • Notify applicants of smoke-free policy and provide at least 30 days notice to existing residents • No individual can be denied occupancy because they smoke • Cannot ask an applicant or resident if they smoke or anyone in their household smokes

15. Smoke-Free Public Housing Authorities Over 350 Public Housing Authorities in at least 30 states have implemented smoke-free policies (more than 10% of national total), including: Boston, MA Detroit, MI Seattle, WA Santa Barbara, CA San Antonio, TX Santa Fe, NM Portland, OR All Maine Public Housing (12,000 residents)

16. Enforcement • Use the same warning/enforcement methods for smoking rule violations that are used for any other rule. • Proliferation of smoke-free policies has not led to large numbers of evictions. In both market rate and subsidized housing, compliance rates are very high. • Individuals are not being asked to quit, just refrain from smoking indoors – HUD clearly requires that residents may not be denied occupancy because they smoke

17. Additional Resources Global Advisors on Smokefree Policy • http://www.njgasp.org/ Tobacco Control Legal Consortium • http://www.tclconline.org/ The Center for Social Gerontology • http://www.tcsg.org/ Smoke-Free Apartment House Registry • http://www.smokefreeapartments.org/ MD Smoke-Free Apartments • www.mdsmokefreeapartments.org

18. Presenter Legal Resource Center for Public Health Policy University of Maryland Francis King Carey School of Law 500 West Baltimore Street Baltimore, MD 21201 (410) 706-0842 tobacco@law.umaryland.edu