HUD issued a “smoke-free” final rule, meaning public housing agencies (PHAs) must create and carry out a policy barring anyone, including residents and guests, from smoking cigarettes, cigars, pipes, and hookahs in public housing apartments and indoor common areas. In addition, a PHA’s policy must ban smoking outdoors less than 25 feet from public housing and administrative buildings. PHAs have until July 30, 2018 to put a policy in place.
What You Need to Know
Lease Amendments Required
PHAs must amend residents’ leases to include the PHA’s smoke-free policy. Separate HUD guidance (Notice PIH-2017-03) requires a PHA to give residents 60-days advance notice that the lease will change. Residents must sign the lease amendment. The guidance suggests the lease amendment indicate which actions would violate the smoke-free policy.
Designated Smoking Areas
The rule does not require PHAs to have outdoor designated smoking areas (DSAs). If a PHA allows DSAs, HUD’s guidance suggests that lease amendments indicate where DSAs exist. DSAs must be accessible for people with disabilities. DSAs may include partially enclosed structures and should include appropriate seating, adequate lighting, and shade.
Reasonable Accommodations for People with Disabilities
The guidance encourages PHAs to have information in the lease amendment about what the PHA will do for residents who have physical or mental disabilities who smoke and request a “reasonable accommodation” that enables them to comply with the smoke-free policy.
Both the guidance to the final rule and the preamble that introduces it recognize that smokers with certain mental health conditions may need special attention to ensure that they understand the smoke-free policy and how to use any resources offered to help them stop smoking. Advocates note that some might find it difficult to understand a PHA’s procedures for requesting a reasonable accommodation.
Enforcement of Smoke-Free Policies
The guidance and preamble say a PHA may not evict for a single violation.
The preamble states that lease enforcement is the best way to ensure compliance, and that a PHA should enforce its smoke-free policy as it would other lease-related policies.
The guidance and preamble declare that a PHA must provide “due process” when enforcing a lease. PHAs must follow HUD’s existing public housing grievance regulations, which include residents’ right to an informal settlement process and a formal hearing.
The guidance and preamble encourage PHAs to use a gradual enforcement approach, one that has multiple steps with each step gradually increasing the warning level. At each step a PHA should also provide information about resources to help a resident stop smoking. The guidance suggests PHAs work with the Resident Advisory Board and resident councils to agree on how many violations trigger lease enforcement. PHAs are advised to have written documentation of each warning to put in a resident’s file.
The guidance declares that eviction should only be a last resort.
Get Gradual Enforcement That Offers a Resident Many Chances to Adjust
NLIHC’s comments on HUD’s proposed rule suggested a five-step enforcement process:
- For a first violation, a resident should get a verbal warning, plus materials that can help them to stop smoking, including referrals to any free stop-smoking services.
- For a second violation, a resident should get another verbal warning, plus stop-smoking materials, referrals to free stop-smoking services, and referral to a resident services coordinator.
- For a third violation, a resident should get a written warning, plus the materials and referrals in step 2.
- A fourth violation would result in a notice to vacate, but with time and options to remedy the violation, along with the materials and referrals in step 2. If the resident remedies the violation, then the resident would begin a six-month probation period.
- For a fifth violation, the resident would receive a notice to vacate without an option to remedy.
NLIHC suggested that all violations be dropped at the end of the year so that a resident can start with a clean slate.
The National Housing Law Project suggested alternative steps. For the first three violations a resident would get a written warning, each informing a resident about: the opportunity to cure the violation, free stop-smoking services, and the right to request a reasonable accommodation if the resident has a disability. A resident would need to receive the three warnings before a PHA could begin to take lease enforcement actions. For residents who just can’t comply after many attempts (or who don’t want to), the PHA’s policy should offer this resident a voucher or place them high on the wait list for the next available voucher.
Have Independent Person Respond to Complaints
There is concern that some PHA staff or neighbors will use the smoke-free policy to cause trouble for a resident who they don’t like. To avoid this, advocates urge that a PHA’s policy for enforcement involve an independent person to look into and verify claims of violations.
Be Wary of Smoke Detecting Devices
Devices called particulate sensors have been used to detect whether residents have been smoking in their apartments. Advocates warn that these devices can give false results because they also detect dust particles. Sensors can also be fooled if a resident or previous residents used to smoke before the ban went into effect.
The smoke-free rule does not ban e-cigarettes, but some PHAs have banned them. Residents might want to convince their PHA to allow e-cigarettes because: the science about their second-hand smoke impact is unclear, they are not a fire hazard, and they can help people quit tobacco. At a minimum, e-cigarettes should be allowed as a reasonable accommodation for people with disabilities who have difficulty going outside to smoke.
It’s Still Early – Be Involved in Shaping Your PHA’s Policy
PHAs have until July 30, 2018, so there is no rush to enforce the rule yet. Convince your PHA to take time to hear from all residents before drafting a smoke-free plan, and then allow time for residents to comment on the draft before making it final.
HUD’s guidance encourages PHAs to work with resident councils and have informal meetings with residents about possible features of a smoke-free policy before drafting and beginning one. HUD also encourages PHAs to post notices and distribute flyers to inform residents. All information should be in appropriate languages for people with limited English skills, and be provided in ways accessible for people who have visual or hearing impairments.
A HUD webpage with Healthy Housing Smoke Free Materials is at: http://bit.ly/2mLz3nc
The American Lung Association has Enforcement Policies at: http://bit.ly/2mqblfp
“Live Smoke Free” has information at: http://bit.ly/2m77xx3