HUD published Notice PIH-2017-03 providing guidance to public housing agencies (PHAs) regarding instituting and enforcing smoke-free policies in public housing, as required by a final rule issued on December 5, 2016 (see Memo, 12/5/16). PHAs must design and implement a policy barring the use of prohibited tobacco products in all public housing units, interior common areas, and outdoor areas within 25 feet of public housing and administrative office buildings (collectively referred to as “restricted areas”).
The guidance strongly encourages PHAs to engage with residents early in the development of smoke-free policies and to work with resident councils. HUD also encourages PHAs to post signs about their new smoke-free policy. If PHAs do post signs, they must be accessible to all residents and visitors (including persons with disabilities) and must be in multiple languages consistent with HUD’s guidance on Limited English Proficiency. PHAs are also encouraged to use various communication methods, such as letters, flyers, and seminars, to share this information. The Notice also encourages PHAs to provide residents with information on smoking cessation assistance.
According to the Notice, PHAs are required to amend individual resident leases. All residents must sign the lease amendment as a condition of their continuing occupancy. Lease amendments should note the availability and location of any designated smoking areas. The guidance encourages PHAs to include information in the lease amendment about what the PHA will do regarding residents with disabilities who smoke and request a reasonable accommodation. HUD also suggests the lease amendment identify which actions would be considered a violation of the PHA’s smoke-free policy.
Although the rule does not require designated smoking areas (DSAs), PHAs may provide them outside of restricted areas. DSAs may include partially enclosed structures and should include appropriate seating, shade, and adequate lighting. DSAs must be accessible to persons with disabilities by way of flat or paved pathways and/or ramps or other accommodations.
The use of e-cigarettes, formally referred to as Electronic Nicotine Delivery Systems (ENDS), is not prohibited. The Notice states, however, that research shows the aerosol exhaled by e-cigarette users contains nicotine and potentially harmful ingredients, but generally at much lower levels than tobacco smoke. The guidance indicates that PHAs have the flexibility to prohibit e-cigarettes in all developments and common areas, or PHAs may allow the use of e-cigarettes within someone’s unit but prohibit them in common areas. The notice reminds PHAs that residents should always be considered prior to adopting stricter smoke-free policies than required by the rule.
The Notice provides considerable guidance regarding the required PHA enforcement and monitoring of their smoke-free policies. When enforcing a lease, the guidance states that PHAs must provide residents with due process and allow residents to exercise their right to an informal settlement process and a formal hearing. The Notice declares that PHAs may not evict someone for a single incident of smoking. Rather, the Notice encourages PHAs to adopt a graduated enforcement approach that includes escalating warnings along with educating the resident and providing smoking cessation resources or referrals before pursuing eviction. HUD states that terminating someone’s tenancy and evicting them should be a last resort.
The Notice includes links to resources that provide examples of how some PHAs have approached and managed smoke-free policies.
The smoke-free rule became effective on February 3. PHAs have 18 months to develop and implement their smoke-free policy.
Notice PIH-2017-03 is at: http://bit.ly/2m2XXe9