How to Implement and Enforce a Smoke-Free Policy at Your Building

By Carolyn E. Zezima, Esq.

More than one in three nonsmokers who live in apartments—and more than 58 million total nonsmokers nationwide—are regularly exposed to dangerous secondhand smoke, even as cigarette-smoking rates have dropped and smoking in public places has been banned in many states, according to a February 2015 Vital Signs report from the Centers for Disease Control and Prevention (CDC). The Environmental Protection Agency has classified secondhand smoke as a Group A carcinogen known to cause cancer in humans, containing over 7,000 chemicals, many of which are harmful and toxic. And the Surgeon General has concluded that there is no safe level of exposure to secondhand smoke. Each year, secondhand smoke exposure causes more than 41,000 deaths from lung cancer and heart disease among non-smoking adults and 400 deaths from Sudden Infant Death Syndrome, as well as about $5.6 billion annually in lost productivity.

According to the study, two in every five children ages 3 to 11 years—including seven in 10 black children—are exposed, as are nearly half of black nonsmokers. More than two in five nonsmokers who live below the poverty level are exposed to secondhand smoke—as are 57 percent of nonsmoking New Yorkers, according to another study.

“About 80 million Americans live in [multifamily] housing, where secondhand smoke can seep into smoke-free units and shared areas from units where smoking occurs,” Brian King, Ph.D., acting deputy director for research translation in CDC’s Office on Smoking and Health, said about the results of the study. People who live in public and other assisted housing are especially affected by secondhand smoke, including the elderly, children, and people with disabilities who are particularly sensitive to secondhand smoke and its effects.

In light of these serious dangers to your tenants, you might be considering banning smoking in your building to save money and even attract nonsmoking tenants willing to pay a premium for smoke-free buildings. We’ll fill you in on the landscape of smoke-free housing emerging around the country and in New York, and go over the legal implications and benefits of implementing a smoke-free policy at your building. We’ll also cover steps you may take when adopting and enforcing a smoke-free policy and give you model tools you can use to start going smoke-free at your building.

Smoke-Free Laws and Demand for Smoke-Free Housing Increasing

The Surgeon General, along with national air quality organizations, has made clear that making your building smoke-free is the only way to keep nonsmokers safe from secondhand smoke. Limiting smoking to specific rooms, opening a window, or using air fresheners or fans is not enough to fully protect individuals in the home, particularly in multifamily housing. That is why numerous cities have passed laws restricting smoking in multifamily housing and several hundred public housing authorities have adopted smoke-free policies..

This trend towards no-smoking households is reflected in New York City and nationwide: Only 14 percent of New Yorkers smoke. Over 50 percent favor smoke-free policies where they live, and many nonsmoking renters are willing to pay more to live in a smoke-free building. The CDC study based on national survey results estimates that 83 percent of U.S. households have a no-smoking policy in their homes, and this has increased significantly over the 10-year period studied.

The U.S Department of Housing and Urban Development (HUD) encourages no-smoking policies and is considering making all public housing around the country smoke-free. New York City, home to the largest and most complex public housing system, has not, though under the New York City Clean Indoor Air Act, smoking is prohibited in all common areas of residential buildings with 20 or more apartments.

However, almost concurrent with the HUD announcement, New York City council member Donovan Richards proposed legislation that would forbid New York City tenants living in city-subsidized apartments from smoking in their apartments. The bill is still in committee, though no date has been set for a vote. Nevertheless, there are compelling reasons to limit smoking in multiple-unit dwellings across the city. A tenant survey conducted in 2012 by the New York City Housing Authority found that 24 percent of respondents reported that one household member currently smoked, while 34 percent of households with children reported that asthma had been diagnosed in at least one child at home. Beyond that, although 70 percent said they did not permit smoking at home, over half reported smelling secondhand smoke from a neighbor’s apartment or from the grounds.

Even without regulations that require smoke-free housing, a growing number of New York landlords are starting to ban smoking in their new and even existing buildings. For example, Related Management has banned smoking in all of its rental apartments—not just in New York, but across the country. The ban affects over 40,000 rental units that Related manages. For a list of other properties that ban smoking in New York, see the New York State Smoke-Free Housing Registry.

Smokers Not a Protected Class

Smoking is not a protected activity or right. In all 50 states, a landlord may choose to prohibit smoking in individual apartments as well as in common areas. In fact, landlords not only have the right to prohibit smoking, but landlords may also be found liable under a variety of legal theories for failure to prohibit smoking when a tenant is affected by secondhand smoke. Nor is smoking considered a disability, so it can’t be used as a basis for requesting a reasonable accommodation.

Over the years, tenants have successfully brought claims for secondhand smoke seepage against landlords and offending smokers using various common law remedies. Here’s an overview of the legal theories they’ve used.

Breach of the warranty of habitability. In all states, even if landlords are not at fault for a problem, they are responsible for ensuring that residential rental properties are fit for human occupancy. The landlord in effect makes a “warranty of habitability” to the tenant for the life of the lease. Plaintiffs in secondhand smoke cases have successfully argued that the presence of secondhand smoke renders their residence unfit for habitation and constitutes a breach of the lease, including in New York City. The more secondhand smoke exposure affects a tenant, the stronger the argument that secondhand smoke is a breach of the warranty of habitability.

Breach of the covenant of quiet enjoyment. Some courts have found that secondhand smoke seepage can constitute a breach of the covenant of quiet enjoyment. The covenant of quiet enjoyment protects a tenant from serious intrusions that impair the character or value of the leased premises.

Trespass. Some courts have found that the smoker’s secondhand smoke was “trespassing” on the plaintiff. Trespass is considered to be an improper physical interference with one’s person or property that causes injury to health or property.

However, there is no legal consensus among the states on whether a substance can trespass, and if so, what substances qualify. For example, Alabama courts have found that dust and gas can give rise to trespass, but light and noise cannot. A federal court in New Hampshire questioned whether the spreading of fumes, noise, and light falls within the ordinary meaning of wrongful entry of property under the traditional definition of “trespass.” Also, state statutes vary in their definitions of “trespass.”

Constructive eviction. A landlord’s actions in allowing secondhand smoke seepage to take place could be construed as a “constructive” eviction of a tenant. Constructive eviction is defined as a landlord’s act of making premises unfit for occupancy, often with the result that the tenant is compelled to leave. Courts, including in Nassau County, have allowed tenants to break their leases and pay reduced rent when landlords fail to take appropriate action to alleviate secondhand smoke after tenants complain about neighbors’ cigarette smoking.

Nuisance. Nuisance law may also be applied to the issue of secondhand smoke infiltration. Several courts have ruled that secondhand smoke can constitute a nuisance under common law, which classifies nuisance as anything that substantially interferes with the enjoyment of life or property.

Fair housing. A tenant who is sensitive to tobacco smoke could use the federal Fair Housing Act to seek relief from secondhand smoke infiltration. The FHA prohibits discrimination in housing against, among others, persons with disabilities, including persons with severe breathing problems that are exacerbated by secondhand smoke. In addition to the FHA, states have their own antidiscrimination statutes, which may provide additional protections to those experiencing medical difficulties as a result of secondhand smoke seepage.

Simply showing an adverse health reaction to secondhand tobacco smoke is insufficient proof of a “disability” under the FHA. To use the FHA, the affected person must prove the adverse health reaction substantially limits one or more major life activities. To be “substantial,” the impairment must be severe and long term. A substantial impairment could include difficulty breathing or other ailments, such as a cardiovascular disorder, caused or exacerbated by exposure to secondhand smoke. For a person who suffers from such health effects, secondhand tobacco smoke may pose as great a barrier to access to or use of housing as a flight of stairs poses to a person in a wheelchair. A person who merely finds secondhand smoke annoying would probably not obtain protection under the FHA.

If an aggrieved tenant successfully proves a disability under the FHA and demonstrates that secondhand smoke exacerbates his disability, the landlord must make “reasonable accommodations” in housing to protect the individual from secondhand smoke exposure. Such accommodations could include developing or enforcing a smoke-free policy, either in the building or in the apartments surrounding the affected non-smoker; repairs to reduce secondhand smoke infiltration; or, in the case of a tenant, a transfer to an apartment away from the secondhand smoke. The nonsmoker may seek to ban smoking in the common areas of the building, if secondhand smoke is seeping from those areas.

Editor’s Note: Though there is no right to smoke and landlords have the right to ban smoking in their buildings, the ban must apply to the act of smoking, not to tenants who smoke. Landlords may not discriminate against or refuse to allow smokers to live on the premises.

Benefits of Building-Wide Ban

There is no practical way to prevent secondhand smoke in a building other than by banning smoking within the building. In a 2006 Surgeon General Report, The Health Consequences of Involuntary Exposure to Tobacco Smoke, the Surgeon General concluded that there is no risk-free level of exposure to secondhand smoke, and that eliminating smoking indoors is the only way to fully protect people from the dangers of secondhand smoke because ventilation systems can actually distribute secondhand smoke throughout a building. Conventional air cleaning systems might be able to remove large particles from the air, but they cannot remove the smaller particles and gases found in secondhand smoke.

Along with avoiding the types of lawsuits described above associated with allowing smoking at your building, there are other benefits with a building-wide smoking ban.

Reduce maintenance costs. It costs a lot more to turn over a smoker’s apartment than a nonsmoker’s because smoking can cause extensive damage to the apartment. The smoke can leave sticky particles, residue, and stains on walls, curtains, cabinets, blinds, appliances, and fixtures. Dropped cigarettes and ashes can leave burn damage on tiles, carpets, curtains, countertops, and bathtubs. Smoke odors can remain in carpets, curtains, and walls for a very long time.

Residue, burns, and odors create more work during turnover time, and two to three times higher cleaning costs for landlords. Banning smoking can save you over $1,000 to $3,000 per apartment. This was the experience of the King County Housing Authority after it implemented a smoking ban for all its apartments, saving $1,000 to $3,000 when turning over the non-smoking apartments compared to the cost of turning over a smoker’s apartment before the ban was put in place, said Bill Cook, director of Property Management in a presentation given on how they’ve adopted smoke-free policies.

Also, from a marketing standpoint, prospective tenants may decide not to rent an apartment if it has been smoked in. Studies have shown that 88 percent of prospective tenants are immediately less interested in renting an apartment in a building if they smell smoke. Rather than risk feeling ill and having their clothing and furniture absorb the smoke smell, these prospects may decide to look for somewhere else to live.

Reduce risk of fire. Cigarettes left smoldering can cause fires, and cigarette fires cause a significant percentage of fire-related deaths. Cigarettes and other smoking materials are the leading cause of residential fire deaths in the United States. For example, last year, there were more than 26,000 structural fires in New York; among the top five causes of accidental fires investigated by the Fire Department, smoking ranked second. In 2014, a third of the accidental fires investigated by the city related to smoking; the year before, less than a quarter had. Smoke-free policies in apartments reduce the risk of cigarette-related fires, damages, injuries, and deaths by eliminating lighted smoking materials from the interior of the building. Several cities that have banned smoking in multifamily apartments cite reducing fire risks as one of the main reasons the bans were put in place.

Insurance savings. Make an insurance premium reduction for a smoke-free policy a priority for negotiation with your insurer. Given the risk of property damage associated with allowing smoking at your building, some insurance agencies give a credit or premium reduction to landlords if they prohibit smoking in their apartment buildings. You may consider asking your insurance agent if your current policy includes a penalty (explicit or hidden) if you don’t presently have a smoke-free policy in your tenants’ leases.

Take Four Steps When Adopting a Smoke-Free Policy

Here are four steps you should take if you decide to ban smoking throughout an entire building, including within apartments, common areas, and if you wish, patios or balconies.

Step #1: Conduct tenant survey. To assess or gauge how much pushback there may be among tenants to a smoke-free policy, it’s important to conduct a tenant meeting or survey. Surveys are also useful tools to assess the scope of smoking-related problems that exist in your building. You may find a significant percentage of tenants suffer from health problems that are exacerbated by infiltrating smoke. All this information is useful for making the case to tenants at large that a smoking ban is a good idea and to have staff support with regard to enforcement when a smoke-free policy is implemented.

We’ve developed a model survey to help you gather information about current smoking behaviors in your building’s units, smoking among survey responders, and attitudes toward a smoke-free policy.

With the survey, most likely, you’ll find that a majority of tenants echo the CDC survey results and support smoke-free policies. When the Duluth Housing and Redevelopment Authority in Minnesota conducted such a survey, it found less resistance to a smoke-free policy than expected. Seventy-eight percent of survey respondents said that they could smell secondhand smoke coming into their apartment, that that smoke smell bothered them or made them ill, or that they were worried about health effects of their exposure to secondhand smoke or the exposure of people they live with. That was a bigger number than was expected, said executive director Rick Ball in a presentation given on adopting smoke-free policies.

Step #2: Partner with local health organizations. You should reach out to your local health departments and any other health-related agencies that you have in your area. These organizations can provide many resources to your tenants, from providing smoking cessation kits to providing a representative to attend tenant meetings and answer health-related questions tenants may have. You may find that a number of tenants who are smokers feel that they want to quit and have tried on numerous occasions but have not been successful. These tenants may need expert guidance.

Partnering with local health groups also emphasizes and helps communicate the fact that your smoke-free policy is targeting smoking behavior or the smoking activity and not the smoker himself. The cessation materials the health groups may provide are to help reduce a smoker’s urge to smoke within the building and to reduce the number of possible violations to the smoke-free policy down the road.

Step #3: Choose implementation method and use smoke-free lease addendum. You can choose to implement your smoke-free policy using the “phase-in” method or the “quit-date” method.

> “Phase-in” method: Begin having new tenants who move into the building sign a smoke-free lease addendum or policy immediately. Announce the policy change to current tenants and have them sign a smoke-free lease addendum or policy at the time of their lease renewal.

> “Quit-date” method: Decide what date you would like the building to go smoke free. Give your tenants notice of the policy change and ask them to sign a smoke-free lease addendum before the policy change. It’s important to note that a tenant with an existing lease can refuse to agree to the policy until her lease renews.

Editor’s Note: Banning smoking in your entire building is harder to do all at once when there are rent-regulated apartments with existing tenants in the building. According to the Division of Housing and Community Renewal (DHCR), you can’t amend existing leases to add a no-smoking clause even at renewal without a tenant’s agreement. But you can add it to a new tenant’s lease after an existing tenant moves out or if existing tenants voluntarily agree to sign a no-smoking clause at renewal. And you can easily add it to all new leases at new buildings from the start, as Related Management does in its new buildings. Also, HUD requires that landlords that have federally assisted units get its approval for any changes to tenants’ leases, including adding no-smoking clauses, and that you wait until lease renewal to add it to the lease. 

Whichever implementation method you choose, be sure to communicate with your tenants well in advance about the policy change. Also, you should have the policy in written form. Written policies help landlords enforce the smoke-free regulation. It allows all tenants and staff to have the same expectations. If a policy is written into a lease addendum and is signed by all tenants, building staff will have an easier time handling a violation.

You must incorporate the ban in your lease to implement and properly enforce a ban of smoking at your building. You can’t change the terms of a lease until it expires, but you can attach a lease addendum to your new leases and add one to the leases of renewing tenants. (Or you can offer incentives, such as gift certificates, discounts to building amenities, or concierge services, to encourage market rent tenants to sign early, before renewal). Once an implementation method has been chosen, start renewing existing leases and initiate all new leases with a smoke-free lease addendum.

We’ve drafted a model lease addendum, based on the one Smoke Free Housing New York recommends, that you can adapt and use at your building. Your lease addendum, like ours, should do four things:

> Define smoking. You may choose to include e-cigarettes in your policy’s definition of smoking. An e-cigarette is a popular term for any personal vaporizers on the market that deliver a vapor of heated liquid nicotine, which the user inhales. These devices do not contain or burn tobacco and the user does not exhale smoke but rather vapor. Compared to traditional tobacco products, e-cigarettes present a lower risk of secondhand ingestion of certain known carcinogens. However, there may be some risk of ingesting nicotine from secondhand vapor. Also, many of the common law remedies available to tenants against infiltrating cigarette smoke may also be available against e-cigarette vapors.

> Prohibit smoking in or near the building. The leases in some smoke-free buildings say that tenants can’t smoke in their apartments, anywhere else in the building, or in common areas or adjoining grounds. That can help solve the problem of smokers congregating right outside the doors or leaning out their windows.

> Make tenants responsible for ensuring that their family members, guests, and invitees also comply with the rule. Just as you hold tenants responsible for the misbehavior of their families, guests, and invitees, you can hold tenants responsible for their smoking, too.

> Warn tenants that their neighbors may smoke until their leases expire. When you first start to implement a no-smoking policy, smokers who already live in your smoke-free buildings will be able to continue to smoke until their leases expire (or if they are in rent-regulated apartments, until they move out). You don’t want tenants who signed no-smoking leases to complain about it, claiming that you promised them a smoke-free environment. So say in the lease clause that there may be smoking in the building for up to a year and that you’re not responsible for stopping it until the individual smokers’ leases expire.

Step #4: Announce policy and post signs around your building. You should announce the new policy in a very positive letter/email to all tenants and hold meetings to educate them on the new policy. Refer tenants who smoke to partner health organization to help them quit or to make it easier for them to comply with the rule and keep their smoking out of the building. Post no-smoking signs at entrances and exits, common areas, hallways, and in other conspicuous places in your building to remind tenants and guests of the new policy.

Enforcing Your No-Smoking Policy

Landlords who have adopted no-smoking policies, such as Related Management, report that enforcement isn’t nearly as difficult as they thought it would be. But in some cases, you may have a hard time finding out whether tenants or guests are smoking in smoke-free areas and an even harder time proving who did it. Smoke-free policies are largely self-enforcing, but it’s important to take steps to let your tenants know the consequences for violating the policy.

If you absolve yourself of any enforcement, tenants will see that they can get away with smoking and will continue to do so. And if you don’t try to enforce the policy, a court may later find that you’ve waived—that is, given up—your right to enforce it. Therefore, enforce the policy consistently among all tenants and enforce it as you would any other lease provision.

In Cook’s experience, enforcement became progressively easier after early consistent enforcement efforts. He recommends that you treat smoking like any other lease violation and to be consistent, firm, and fair, just as you would with any other policy. He’s found that tenants have become a very good enforcement tool. Some of his tenants would talk to each other civilly and say, “You know you’re not supposed to smoke in this building. I don’t want to report you, so please stop doing it.”

When you receive a complaint from a tenant about infiltrating smoke, a staff member should walk to the alleged smoker’s apartment to find out what’s going on and to talk to the tenant. The staff member might actually catch tenants smoking in their apartment after they’ve opened the door. At which point, you can remind the tenant of the policy and make a note of the incident in the tenant’s file.

If there’s another complaint, send that person a letter, like our model letter, below. This letter tells the tenant that he is violating his lease. Your letter, like ours, should do three things:

Remind tenant of the signed lease addendum. Remind the tenant that it’s a lease violation to smoke in the building. Cite the specific lease clause that bans smoking. Nobody really forgets that she’s not allowed to smoke, but this is the best way to approach that person.

Tell tenant that she’s violating lease clause. Tell the tenant that you know she’s violating the lease clause banning smoking, and explain the circumstances. Give as many details as possible, including the time and place that the tenant was smoking.

Warn tenant. Tell the tenant that if you catch her smoking again, you’ll take legal action.

If the problem persists, take whatever legal action is appropriate in your area for tenants who violate their leases. In some areas it might be a formal warning, and in others it might be a notice to vacate. Either way, it’s important to follow through so tenants know you’re serious about keeping your building smoke-free.

RESOURCES

Below are links to guides and tools to help you successfully adopt and enforce a smoke-free policy at your building. They contain educational materials about smoking and secondhand smoke, information on tailoring a smoke-free policy to fit your and your tenants’ needs, frequently asked questions, tips for success and enforcement, along with tools like sample letters, signs, and quitting resources and pledges for your tenants.

New York Landlord Smoke-Free Housing Toolkit.

NYC Smoke-Free Living: Making Your Building Smoke-Free: A Guide for Landlords and Managing Agents.

HUD’s Smoke Free Housing Toolkit.

American Lung Association: Smokefree Policies in Multi-Unit Housing — Steps for Success

Centers for Disease Control, Healthy Homes Manual, Smoke-Free Policies in Multi-Unit Housing

Tobacco Technical Assistance Consortium

New York City Smoke-Free Housing

New York Guide to Smoke-Free Cooperatives

Making Room to Breathe: A Case Study of Smoke-Free Housing in NYC

 

This article was adapted from Section 4.4 of Sustainable Affordable Housing Management: A Money-Saving Guide to Keeping Your Site Green, Healthy & Energy Efficient, by Carolyn E. Zezima, Esq. Zezima is the president of NYC Foodscape (www.nycfoodscape.com), and a consultant with a track record of grass-rooting and managing organizations in the nonprofit sector. She has worked with food and farming enterprises and food policy organizations in New York and Chicago to promote healthy sustainable food systems, urban agriculture, and regional farming. She serves on numerous farming- and food-related committees and boards, including Partnership for a Healthier Manhattan and NYC Food Forum. She can be reached at nycfoodscape@gmail.com or (847) 507-1785.