Smokefree Multi-Unit Housing

Across the nation, landlords and management companies have instituted smokefree policies. Some cover 100% of the multi-unit housing facility, (common areas, indoors and outside, and private units). Some designate certain sections of buildings as 100% smoke-free. A 100% smoke-free designation means higher property values, and lower fire risk, insurance, and cleanup costs. Most importantly, 100% smoke-free multi-unit housing facilities mean a healthier life for everyone, especially children, the elderly, and those with breathing disabilities.

Click here to see our presentation given on January 6, 2010 to the Supportive Housing Association of NJ. Also, download our brochure, "Smokefree Housing 2010 Initiative for Multi-unit Residential Property Owners and Managers, Housing Industry Professionals, Tenants and Policy Makers." Our brochure is also available online in Spanish; en español, visite aqui.

Owners are recognizing that smoke-free makes economic sense and renters are beginning to demand smokefree units.

• Click here to read the July 26, 2009 Las Vegas Review-Journal article, "Smoke-Free Apartments Get Healthy Response".
• Click here to read about the trend towards smoke-free multi-unit housing from the Southern Nevada July/August 2009 publication of Apartment Insight magazine.
• Click here to read the July 21, 2009 press release of a smoke-free luxury apartment community opening in Boston, MA and advertised as a "healthy lifestyle" complex.
• Washington Post’s April 3, 2010 advertising section for rental apartments had a cover story entitled, “Smoke-free Apartments: A Healthy Choice for Renters”. Click here for more details.

In November 2009, the North Bend and Coos-Country housing authorities in Oregon, adopted a no-smoking indoor policy that includes all individual units, affecting 479 residents. Smoking will be permitted outside, at least 10 feet from doors. The policy takes effect March 2010, giving time for community partners to offer smoking cessation help to those tenants who are interested. Click here to read the newsclip.

Creating 100% smokefree policies reduces the risk of fire in multi-unit buildings, especially in buildings that house tenants using medical oxygen for health reasons (seniors and children with asthma, COPD, etc). A tenant on portable oxygen needs a 100% smokefree living environment, and this may include not only their apartment, but neighboring apartments as well. Click here to learn more about the hazards of smoking near the operation of portable oxygen equipment.

Note that a breathing-disabled person, whether or not using portable oxygen, may require a reasonable accommodation of a 100% smokefree unit, and even building. A person may temporarily qualify as disabled, such as asthmatic or COPD onset due to secondhand smoke exposure. A person may also be qualified as disabled, even if medications help to mitigate their condition.

Thirdhand smoke is beginning to be recognized as a health hazard. Thirdhand smoke is residual secondhand smoke that imbeds into upholstery, rugs, and onto walls, and other surfaces, lingering for weeks. New studies indicate that thirdhand smoke may be more dangerous than secondhand smoke, since thirdhand smoke does not dissipate quickly, and continuously emits respirable particles long after secondhand smoke takes place. Click here to read more about the public health concerns with thirdhand smoke.

GASP offers technical assistance on how to regulate smoking in multi-unit housing. This section has information specific to private and public housing, as well as for tenants, condo owners, landlords, and management companies. Also, GASP's white paper protecting foster/resource family children gives background information that supports protecting foster/resource family children from second hand smoke in homes and cars.

Information on Public Housing

The December 2009 issue of Tobacco Control journal features a Harvard School of Public Health study that measured airborne nicotine contaminants in a Boston public housing building. Nicotine levels were found in nonsmoking units of the building, due to migrating secondhand smoke from units where smoking occurs. The study also concluded that questionnaire responses completed by residents can provide a valid estimate of residential exposure to tobacco smoke. Click here to read the article.

A May 2010 University of Rochester study showed the high rate of children being exposed to secondhand smoke in apartment living, even when the child does not live with a smoker. Secondhand smoke exposure can seep through walls and shared ventilation, according to the author of the study, Karen Wilson, MD, MPH. Key finding: “Apartment living was associated with a 45% increase in cotinine levels for African American children and a 207% increase for white children. About 18% of U.S. children live in apartments.” The author’s conclusion recommends that smoking bans within public housing can lower secondhand smoke exposure for children and reduce smoking rates among residents, citing the 2009 HUD memo that recommends public housing authorities enact smoke-free policies.

This policy memo, issued on July 17, 2009 by The U.S. Department of Housing and Urban Development (HUD), strongly encourages Public Housing Authorities (PHAs) to implement non-smoking policies in some or all of their public housing units. This policy addresses:

• dangers of secondhand smoke exposure
• fire-related risks associated with smoking
• improving indoor air quality inside public housing, with minimal costs
• decreasing maintenance and turnover costs associated with smoking-permitted units

Click here to read HUD's September, 2009 newsletter with encouraging information for PHAs who are interested in smokefree buildings. Click here to read a December 2009 news article about how the Boulder, CO Housing Authority is trying to go smokefree following the county instituted smoking ban for its low-income rental properties.

The elderly population living in HUD housing benefits from a smokefree housing policy. The American Association of Homes and Services for the Aging calls the 2009 HUD notice, "an encouraging development given that, as HUD noted, elderly populations — which make up 15 percent of the residents living in public housing — are especially vulnerable to the adverse effects of smoking." Click here to read more from the AAHSA on the new HUD smokefree initiative.

Click here to read an August 26 presentation given to the Texas Housing Association by our colleague, Jim Bergman, Esq., on applying this HUD policy. Also, click here to read a Newsweek magazine opinion article from July 13, 2009, on the same subject.

A second smokefree milestone for HUD public housing July, 2009 is awarding a point for a 100% smokefree housing policy to HUD applicants seeking funding. The “HUD 2009 Notice of Funding Availability (NOFA) for Capital Fund Recovery Competition Grants” describes funding available under the American Recovery and Reinvestment Act of 2009 (a.k.a. federal stimulus package). Three of the competitive grants described in this Notice, award an extra point to the Public Housing Authority's application, if that PHA agrees to “enforce a ‘no-smoking’ policy in all common and individual living areas in all buildings” (page 79 of Notice, "Strategy for Green Communities" accessed at http://www.hud.gov/offices/pih/programs/ph/capfund/ocir/recoverynofa.pdf). These three grant programs are very competitive, so awarding an extra point for a smokefree housing policy is an excellent incentive, and hopefully serve as a catalyst in adopting smokefree policies for PHAs. The deadline for PHAs to submit their grant applications for these three competitive grants was August 18, 2009.

The National Center for Healthy Housing (NCHH) publishes "Reasons to Explore Smoke-Free Housing", a 4-page easy-to-read document, released in early Fall 2009. It discusses the monetary impact of rehabilitation costs for turning over smoking vs. nonsmoking units, other cost saving measures for creating smokefree multi-unit housing policies, and the positive health effects. One Maintenance Manager of Senior Services of Snohomish County, Washington has documented refurbishment cost differences for smokefree vs. smoked-in units, citing a lower cost of $2665 per unit. A Michigan public housing authority's smokefree housing policy that grandfathers in current smoking units, includes an excess wear and tear charge that will be assessed for burn marks and nicotine stains (to be recovered from security deposit), as well as annual inspections to ensure that smoke residue does not build up (with frequent cleaning and wall washing). If inspections show that the unit is not being maintained, then the unit could result in the loss of the grandfathered status. Click here to read the policy.

NCHH's training materials also discuss smokefree housing (see slides 1-4).

Another good resource for working in affordable and public housing are the materials from the National Conference on Tobacco or Health’s 2009 Smoke-Free Multi-Housing Ancillary Meeting. Click here for a list of presentations.

GASP offers free one-on-one assistance to help create smokefree policies for your HUD housing. We are also planning to host free 1-day educational trainings on smokefree housing policy initiatives. Please contact us at (908) 273-9368 for details.

Click here to read the Office of the Surgeon General's Call to Action to Promote Healthy Homes press conference held on June 9, 2009 with both HUD and the Centers for Disease Control (CDC) acknowledging the health consequences of secondhand smoke. Click here to read the strategic plan developed by HUD for their Healthy Homes program supporting the Surgeon General's Call to Action.

The fifth of HUD's Seven Healthy Homes Principles addresses secondhand smoke:

"Keep your home Contaminant-Free: Chemical exposures include lead, radon, pesticides, volatile organic compounds, and environmental tobacco smoke. Exposures to asbestos particles, radon gas, carbon monoxide, and second-hand tobacco smoke are far higher indoors than outside."

Also, tobacco smoke is listed on HUD's website as a trigger for allergies and asthma.

Other Public Programs

A 2002 U.S. Department of Health and Human Services (HHS), Administration for Children and Families, Head Start Bureau (HHS) report found that asthma is the top chronic disease among Head Start children. A review of the 2002-2005 Head Start Program Information Reports showed asthma as the most frequently reported chronic health condition by Head Start programs nationwide.

These findings led to a 2007 partnering between The Environmental Protection Agency (EPA), Office of Radiation and Indoor Air and the HHS. The EPA Smokefree Homes for Head Start Families partnership aims to educate staff and parents of Head Start and Early Head Start programs on the importance of reducing children’s exposure to environmental asthma triggers and the harmful effects of secondhand smoke. Click here to read the Memorandum of Understanding (MOU) on the partnership.

The partnership aligns the collective missions to increase awareness of secondhand smoke’s health effects on childen, asthmatics, and other adults in the household who are at an increased risk for chronic disease from secondhand smoke. Education of Head Start staff and parents is to be accomplished through the promotion and distribution of EPA’s Asthma and Smoke-Free Homes Program messages and educational materials for use in the Head Start and Early Head Start programs.

Click here to go to Head Start to learn about their asthma and secondhand smoke outreach.

Click here for more information on the EPA partnership with Head Start to promote smokefree homes for Head Start families.

Information on Private Housing

New Jersey tenants are motivated to keep secondhand smoke from entering their living spaces, and landlords are motivated to keep their tenants happy. Click here to read the August 14, 2008 response to an editorial question from landlords interested in finding out their options on implementing smokefree policies in their multi-unit dwelling as requested by an unhappy tenant.

For Tenants:

Upon request, we provide a packet of information which includes the following:

• Laws N.J.S.A. 26:3-48 et seq for public property (outside of a private dwelling), and NJSA 26:3-49 et seq for private property, state a local board of health shall examine and prohibit any nuisance, offensive matter, foul or noxious odors, gases or vapors which may be known to the board of health or brought to its attention which, in its opinion, are injurious to the health of inhabitants. N.J.S.A. 26:3-19 states that the local board of health can employ personnel to enforce.
  
• N.J.S.A. 26:1A-23-30 states that if the local health department fails to enforce the nuisance laws, then the State Commissioner of Health shall require the local health department to do so through an order. If the local health department still fails to comply with the order, then the Commissioner shall take necessary action to perform the acts, or institute an action in Superior Court to stop the nuisance.
  
• N.J.A.C. 5:10-6.2 that makes the owner of a multiple dwelling responsible for avoiding, eliminating or abating odors arising out of the use or occupancy of the premises that shall constitute a nuisance that is harmful or potentially harmful to the health and well-being of persons of ordinary sensitivity occupying or using the premises.
• NJ State fire protection codes relating to penetrations, and to miscellaneous openings in floors and smoke barriers.
• Excerpt from 2006 U.S. Surgeon General's Report on the health consequences of involuntary exposure to tobacco smoke: "there is no risk-free level of exposure to secondhand smoke and secondhand smoke exposure in the home."
  
• Legal options
  
• Smokefree lease addendum
  
• Summary of legal cases regarding nuisance/real property.

  For Landlords and Owners:

  Smoking can reduce the property value of a home up to $25,000, as reported by Bankrate.com. Click here to read their April 2010 story which states that, "smoking is the habit that will have the most dramatic effect on your ability to make the most of the sale of your house." A leading cleaning service company shared that with bankrate.com: "[T]here is nothing more expensive to eliminate than the traces of cigarette smoke... Any amount of smoking will do some damage, but the amount varies." ... Hiring a professional to wash everything in an average-sized home costs around $1,500 and to seal and paint will cost another $6,000.... If you were to revamp a house to put on the market for a really heavy smoker, it could cost you around $25,000."

  There is no known safe level of exposure to secondhand smoke. The U.S. Surgeon General has concluded that breathing even small amounts of secondhand smoke poses a health risk to your health. Secondhand smoke is a known Class A human carcinogen.

  There is no constitutional right to smoke, and smokers have not been protected by Fair Housing Laws. Recently, HUD has permitted smokefree policies in affordable housing across the country.

  There are obvious advantages to maintaining some or all units as non-smoking. A unit that has been smoked in is more expensive to prepare for the next tenant. Fire danger is diminished.

  If tenants are complaining about drifting tobacco smoke, we hope you will take action to protect them. We believe that secondhand smoke is a nuisance in the same way that loud noise or an infestation of rats or insects would be considered a nuisance. By New Jersey law, a nuisance includes "offensive matter, foul or noxious odors, gases or vapors…."

  If a resident or prospective resident has a disability or chronic illness which is made worse by exposure to tobacco smoke, Fair Housing Laws will require a reasonable accommodation. It is not really possible to accommodate a person with allergies, a family whose child has asthma or a person with heart disease unless there is a designated smokefree section or building.

  We urge you to consider developing a no-smoking policy. There are several ways to begin. You might want to conduct a one-question survey of your residents: "Would you prefer to live in a 100% smokefree section or building including the units and the balconies?" Responses to this question will enable you to identify which sections or buildings can become smokefree most easily. (Balconies and patios of smokefree units should also be maintained as smokefree in order to protect residents.)

  Once you decide which buildings you plan to designate as smokefree, plan your transition and notify your residents. As people who smoke move out, advertise a "smokefree" apartment or "non-smoking". Or you could notify all of your residents that as of a certain date, smoking will no longer be permitted in units, on balconies and patios and common areas inside and outside. However, it is helpful to set up a smoking area outside in a location where the smoke will not affect non-smoking residents. Many people who smoke prefer not to smoke in their own homes.

  The letter that you send to all of your tenants about the new smokefree policy could contain the following language: Due to the known health effects of secondhand tobacco smoke, and the fact that smoke drifts and can drift into windows and doors of adjacent units, as of (date), smoking will no longer be permitted in the following areas: (list of areas). After listing the non-smoking areas, add whatever language you would usually use to explain how the new policy will be enforced and ask for everyone's cooperation.
  

  Cooperatives and condominiums are also creating 100% smokefree policies. In this Portland, OR 2009 survey, 46% said they "would not be comfortable renting an apartment where adjacent tenants smoke". Click here to see an editable tenant survey used by the Crow Hill Condos in Alaska to determine the feasibility of going smokefree.

  Click here to read about a new (11/2009) residential rental building on the Upper West Side that is the first to ban smoking in all units as well as public spaces. Click here to read about a NYC co-op from 2006 that voted to impose a 100% smokefree policy for its building.

  Smokefree policies are legal and becoming more popular. A Manhattan judge will hear a nuisance complaint brought by nonsmoking condo owners, against their neighbors who smoke, which is causing health problems for the plaintiffs' daughter. The condo is in a luxury TriBeCa building at 200 Chambers Street. Click here and here to read two different news articles about the court case from December 2009. Click here to read an American Bar Association article on the legal aspects of smoking disputes in multi-unit housing which was published in Probate & Property, Vol. 22, No.3, May/June 2008.

Click here to read the 2009 publication by the Tobacco Control Legal Consortium Infiltration of Secondhand Smoke into Condominiums, Apartments and Other Multi-Unit Dwellings. There are 3 sections to the document:

• Section I explains the right of landlords, condominium associations and public housing authorities to prohibit smoking in individual units.
• Section II provides solutions for private individuals if secondhand smoke is seeping into their dwellings from neighboring units.
• Section III discusses enforcement concerns expressed by landlords and the advantages of specifically addressing smoking in a lease. This section also provides smoke-free language to use in a lease or in condominium bylaws.
  

Previously, in 2006, the Tobacco Control Legal Consortium published Legal Options for Condominium Owners Exposed to Secondhand Smoke. Click here to read the discussion of legal options available to a condominium owner exposed to drifting secondhand smoke from a neighboring condominium unit.

Click here to read a 2008 publication from Public Health Law and Policy in California which describes 3 different options to make a condominium complex smokefree.

Additionally, click here for the legal opinion on smokefree buildings from a Canadian organization, Smokefree Housing Ontario.

Our goal is to encourage and provide support to apartment, co-op and condo owners who wish to adopt smokefree policies. Please call our office at (908) 273-9368 or email info@njgasp.org to discuss or to have a helpful packet sent to you.

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updated June 11, 2010