On December 5, 2016, HUD published a Final Rule in the Federal Register, “Instituting Smoke-Free Public Housing.” This rule requires each public housing agency (PHA) administering public housing to implement a smoke-free policy no later than 18-months from the effective date of the rule. The effective date is February 3, 2017, meaning that all public housing must be non-smoking no later than August 3, 2018. The rule must ban the use of prohibited tobacco products in all public housing living units, indoor common areas in public housing, and in PHA administrative office buildings. The smoke-free policy must also extend to all outdoor areas up to 25 feet from the public housing and administrative office buildings.
Summary of Major Provisions of the Rule
This rule applies to all public housing other than dwelling units in mixed-finance buildings. PHAs 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 (e.g., near a playground), or, alternatively, make their entire grounds smoke-free.
PHAs are required to document their smoke-free policies in their PHA plans, a process that requires resident participation and public meetings. Smoke-free rules must also be included in tenant leases, which may be done either through an amendment process or as tenants renew their leases annually.
Over 700,000 units will be affected by this rule (including over 500,000 units occupied by elderly households or households with a non-elderly person with disabilities).
Background
On November 17, 2015, HUD published a proposed rule seeking public input on a smoke-free public housing policy. To date, over 600 PHAs have implemented smoke-free policies in at least one of their buildings. It is important to note that this rule applies to public housing only; it does not apply to the HUD multifamily programs, such as Section 8. It is also important to note that HUD’s rule does not prohibit public housing residents from smoking – only from smoking in their units and on some (or all) of the property.
Changes Made at the Final Rule Stage
The only substantive change in the final rule from the proposed rule is that now waterpipes (also known as hookahs) are included in the list of prohibited products.
Basic Elements of the Rule
Although smokers will face new requirements, other residents will generally benefit from an improved quality of life that reduces the dangers of indoor smoking and second hand smoke (SHS) exposure.
There is no “right” to smoke in a rental home, and smokers are not a protected class under fair housing laws. There are no known medical conditions for which smoking is considered a legitimate, proven treatment. For this reason, permitting smoking as a “reasonable accommodation” under federal fair housing laws will not be required. In situations where nicotine treatment is appropriate (i.e., smoking cessation) it can be delivered orally or through dermal applications.
Under this regulation, PHAs cannot “grandfather” tenants by exempting them from the application of the rule. As of August 3, 2018, no public housing resident will be permitted to smoke in their unit – even if they have been doing so for years. Allowing such a situation would present additional enforcement challenges and prolong the time that other residents are exposed to SHS and the increased risk of fire.
HUD is restricting the use of prohibited tobacco products, including cigarettes, cigars, pipes, and waterpipes. This rule does not supersede state or local smoking bans.
Designated Smoking Areas (DSA)
If a PHA decides to implement a DSA, HUD recommends appropriate wellness and safety features, such as appropriate seating and shade. If a PHA chooses to designate a smoking area for residents, it must ensure that the area is accessible for persons with disabilities.
Electronic Nicotine Delivery Systems (ENDS)
Research to date on ENDS (e-cigarettes) is still developing and lacks clear consensus, in contrast with research on other smoking products. Therefore, this rule does not prohibit the use of ENDS. However, PHAs may exercise discretion in this area and include a prohibition on ENDS in their individual smoke-free policies.
Enforcement
Once successfully implemented, smoke-free policies will be enforced similar to other policies under lease enforcement procedures. Based on experiences of the PHAs that have already implemented smoke-free policies, when there is resident engagement in developing the plan and an effective plan for implementation, policy enforcement is less likely to lead to evictions. All residents will be required to sign the lease amendment as a condition of continuing occupancy.
Termination of assistance for a single incident of smoking, in violation of a smoke-free policy, will not be grounds for eviction. HUD is encouraging a graduated enforcement approach that includes escalating warnings with documentation to the tenant file.
Expansion of Rule Applicability
The final rule does not apply to tribal housing, mixed-finance, or PHA properties that have converted to project-based rental assistance contracts under RAD. HUD may consider expansion of requirements to additional housing assistance programs in the future.
Funding
The rule provides no additional financial assistance for policy implementation. PHAs will be required to implement the new rule using current financial resources.
Implementation
In the final rule, HUD has clarified that the adoption of a PHA smoke-free policy is likely to constitute a significant amendment or modification to the PHA Plan, which will require PHAs to conduct public meetings according to standard PHA amendment procedures. PHA are encouraged to obtain Board approval when creating smoke-free policies for the Agency.
The PHA must consult with resident advisory boards to assist with and make recommendations for the PHA plan. HUD believes that the 18-month implementation period will provide sufficient time to conduct resident engagement and hold public meetings.
Once the rule is effective (February 3, 2017), PHAs will have 18-months to implement smoke-free policies. PHAs must incorporate the smoke-free policy into resident leases.
Objections – Civil Rights
A number of commenters to the proposed rule objected to the idea behind the rule, arguing that the prohibition of smoking in public housing is an invasion of civil rights because it will ban an individual’s freedom to do something that is legal. Some argued that the policy will punish the poor and working class.
HUD’s response to these civil rights objections is that courts have found that smoke-free policies do not violate the Constitution’s Equal Protection Clause because there is no fundamental right to smoke, and the classification of a smoker does not infringe on a fundamental Constitutional right. Those who challenge a smoke-free regulation bear the burden to prove that the regulation is not rationally related to a legitimate government interest.
Courts have held that protecting persons from SHS is a valid use of the State’s police power that furthers a legitimate government purpose.
General Objections
Despite various objections to the rule, HUD states that the rule is an opportunity to lower overall maintenance costs and reduce the risk of catastrophic fires while advancing the health of residents and PHA staff. At the same time, PHAs may not treat tenants who smoke in a punitive way when implementing this regulation. For example, there can be no requirement for a higher security deposit from tenants who smoke, but residents may be charged for property damage that is beyond normal wear and tear.
Reasonable Accommodations
While there is no special right to a reasonable accommodation for smokers, HUD does acknowledge that some persons, including persons with disabilities, may have additional challenges in quitting, and reiterates that this rule does not require persons who smoke to stop smoking; rather, they must perform the activity in allowable areas outside of the public housing facilities and other restricted areas. HUD stresses that the act of smoking itself is not a disability under the American with Disabilities Act.
Signage
HUD strongly encourages PHAs to post signs referencing their smoke-free policy. These signs must be accessible to all residents and must be posted in multiple languages if appropriate.
Scope of the Rule
While this rule applies only to public housing, HUD intends to now focus on other HUD-assisted housing with regard to non-smoking rules. HUD will issue a solicitation of comments in the Federal Register to obtain feedback from owners and tenants on the prospect of requiring smoke-free policies in other HUD-assisted properties.
Summary
All PHAs that own public housing should carefully examine the requirements of the final rule and begin the implementation process. While PHAs do have some discretion in how the final rule will be implemented, all public housing must be smoke-free no later than August 3, 2018.