A friend reached out to me to ask questions about HUD’s Smoke Free public housing initiative and for some general thoughts on smoking in apartment homes. So, here goes.
There is no “right” to smoke in a rental home. Smokers are not a protected class under the federal Fair Housing Act (FHA) or its state law counterparts. While some have tried to argue smoking is addictive and, as such, should qualify as a disability, to my knowledge no court has so ruled (and the tobacco companies have strongly objected to any such label). Accordingly, I am aware of no requirement for a reasonable accommodation or reasonable modification because of smoking under the FHA. Indeed, I believe the state of the law would be that smokers would benefit from quitting in that stopping smoking has been found to decrease depression, anxiety, and/or stress. Similarly, the federal government has not concluded that smoking is a legitimate or proven treatment for any recognized medical condition.
Apartment communities can prohibit smoking in individual units as a part of the lease or by means of a separate lease addendum. If your property decides to go smoke free, I recommend using a lease addendum at the time of each renewal in addition to using the addendum for new applicants. Yes, it will take a number of months to capture all of your residents, but if smoking is not addressed in your current lease, simply banning it in individual units during a lease term will be more difficult to defend before a judge.
With respect to affordable (government assisted) housing, the Department of Housing & Urban Development (HUD) issued a Smoke Free Public Housing Rule on November 5, 2016 (and which became effective as of February 3, 2017). Under this initiative, all public housing authorities must comply with the rules and implement smoke free policies within 18 months of the date of the rule (or not later than August 3, 2018). HUD’s rule is not mandating that people stop smoking. It does, however, make clear that public housing authorities must go smoke free by August 2018 such that smoking will not be permitted in apartment homes after that date. Make no mistake, there will be pushback and housing authorities are already working on policies to implement this initiative. Should someone lose their home for one violation? What if a guest lights up? What about someone who is disabled with a mobility impairment and has trouble leaving his or her home? What if someone just cannot or will not quit? What if someone has a medical marijuana permit? And I know there will be more questions than answers as affordable housing owners go through the implementation process.
Again, this rule is only mandatory for affordable communities. But affordable community property managers will likely want to reach out to a lawyer like me to get started on this process.
Just A Thought.