Smoking Ban Proposed for All Public Housing Properties

    Note: In November 2016, HUD announced that the rule will become official policy nationwide. Read more about this on our blog here. A controversial policy proposed by the United States Department of Housing and Urban Development (HUD) was recently announced, which would disallow the smoking of tobacco products on all Public Housing premises. While this is only a proposed rule, and not yet official policy, this would be a historic decision made to improve the quality of life on Public Housing properties. Each housing authority with a Public Housing program would be required to implement a smoke-free policy within 18 months of the final rule's publication. This would apply only to properties with a Public Housing program, and extend to scattered-site and single family Public Housing locations, but not to mixed finance project properties because those buildings are owned by a private entity. Smoking would be banned in all indoor areas, such as living units, indoor common areas, and administrative buildings. The policy would also be enforced within 25 feet of Public Housing buildings. This proposed rule would affect more than 700,000 units (500,000 of which have elderly or disabled tenants), and 775,000 children. Housing authorities would also have the discretion to restrict smoking in additional outdoor areas (such as playgrounds), provide dedicated outdoor smoking areas, or even make the entire grounds smoke-free. It is important to note that housing authorities would still provide assistance to persons who smoke, they just would not be allowed to smoke on the premise. HUD clearly defines banned tobacco products as cigarettes, cigars and pipes. There has not yet been a decision on use of water pipe tobacco smoking tools (hookahs) or electronic nicotine delivery systems (e-cigarettes), but HUD is seeking public comment for guidance. The notice hints that HUD is leaning towards banning e-cigarettes, even though a decision has not been made. It is noted that e-cigarettes may contain hazardous chemicals such as lead, and cause acute nicotine toxicity in children. Also, an e-cigarette and the vapor coming out of it may look like a tobacco cigarette, so it would be difficult to enforce a policy in which e-cigarettes are allowed, but tobacco cigarettes are not. All information about the smoke-free policy would be included on the tenant's lease so that the rules can be easily identified. The main reasons of implementing this rule are to improve the air qualify and health of residents and staff, and to reduce risk of fires and maintenance costs on Public Housing properties. Several examples are given throughout the notice explaining why smoking is hazardous not only to the smokers themselves, but also to those around them:

• Smoking is proven to be the cause of several diseases in almost all organs of the body, and research continues to find new diseases. Examples include cancers and impairment to the immune system.
• Hundreds of toxic chemicals in secondhand smoke are responsible for 41,000 non-smoking adult deaths a year from lung cancer and heart disease.
• Smoke moves through buildings, so someone can be exposed to secondhand smoke even if nobody in the unit is a smoker. 58 million Americans are exposed to secondhand smoke, including 15 million children ages 3-11.
• Secondhand smoke causes sudden infant death syndrome for hundreds of infants each year. A significant amount of lead, among other chemicals, cause many bad symptoms for children, including increased risk for stroke as adult.
• There is no solution to avoid secondhand smoke other than eliminating smoke from the area.

    Safety is also a concern, not only for general health, but in reducing injuries, deaths and property damage caused by fires that may be instigated by smoking. Smoking is especially dangerous in units where a tenant must use an oxygen tank for medical purposes. In fire deaths in which oxygen tanks were concluded to be involved with igniting the fire, 82% of cases had smoking materials as the heat source. Another main reason HUD is looking to ban smoking is to reduce property damage caused by smoking. Generally, landlords see higher maintenance costs for smoking units because of needed improvements such as cleaning, painting and repairing damaged items. Affordable housing landlords could save more than $18 million per year without these costs. On the subject of costs, there would be a cost to implement this rule, including training, administrative, legal and enforcement; but it can be argued that the benefits far outweigh the cost. First of all, the cost would less than expected since more than 500 housing authorities have already implemented smoke-free policies on their own. Plus, housing authorities would no longer have to spend resources solving disputes between residents over secondhand smoke. No-smoking policies are proven to achieve the goal to make Public Housing properties a safer place to live. A Public Housing study cited in the HUD notice found lower secondhand smoking contaminants in buildings with smoke-free policies. We understand some Public Housing tenants who smoke may feel outraged at this proposal. You may view your unit as your own domain to do as you like, but if you don't own the property and are paying rent to a landlord, then you are subject to any legal policy restricting what is allowed on premise. Simply put, the rights of renters are different than the rights of owners. To give an easy analogy, these rules are similar to a person who rents a hotel room. If that hotel has a no smoking policy, and you smoke in your room, even though that room was "yours" for the night, you're still going to pay a hefty cleaning fine for violating the rule. Furthermore, many housing authorities already have policies that restrict what is allowed in their units. Examples are the banning of pets or guns, and a no smoking policy would simply be another restriction.     As mentioned earlier in this article, HUD is taking public comments for this proposal. Those who submit a request may make any comments they wish, but HUD has a list of specific questions they wish to be answered:

1. What barriers [exist] that Public Housing Agencies (PHAs) could encounter in implementing smoke-free housing? What costs could PHAs incur? Are there any specific costs to enforcing such a policy? 2. Does this proposed rule adequately address the adverse effects of smoking and secondhand smoke on PHAs and PHA residents? 3. Does this proposed rule create burdens, costs, or confer benefits specific to families, children, persons with disabilities, owners, or the elderly, particularly if any individual or family is evicted as a result of this policy? 4. For those PHAs that have already implemented a smoke-free policy, what exceptions to the requirements have been granted based on tenants’ requests? 5. For those PHAs that have already implemented a smoke-free policy, what experiences, lessons, or advice would you share based on your experiences with implementing and enforcing the policy? 6. For those PHAs that have already implemented a smoke-free policy, what tobacco cessation services were offered to residents to assist with the change? Did you establish partnerships with external groups to provide or refer residents to these services? 7. Are there specific areas of support that HUD could provide PHAs that would be particularly helpful in the implementation of the proposed rule? 8. Should the policy extend to electronic nicotine delivery systems, such as e-cigarettes? 9. Should the policy extend to waterpipe tobacco smoking? Does such smoking increase the risk of fire or property damage?

Comments may be officially submitted to HUD online at www.regulations.gov; or by mail to: Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW, Room 10276, Washington, DC 20410-0500. Interested persons are encouraged to submit their comments electronically. Comments must refer to the docket number (FR 5597-P-02) and title of rule ("Instituting Smoke-Free Public Housing"). Public comments may be viewed at the address above from 8:00 am until 5:00 pm ET, Monday-Friday, but you must schedule an appointment by calling (202) 708-3055. For more information, contact Leroy Ferguson at the address above or call (202) 402-2411. How would this proposed rule affect you and your family? Should smoking be banned in Public Housing units? We welcome you to post your comments below.