Implementation Plan for Considering andAdopting a Policy on Smoke-Free Public Housing

On May 29, 2012, HUD issued PIH Notice 2012-25 which encourages Public Housing Authorities to consider adopting a smoke-free policy in Public Housing. Success in adopting an effective Smoke-Free Policy combines several different factors and steps to help guide formulation of a policy and effective implementation of the policy.

This outline is designed to highlight the important considerations and issues for implementing a Smoke-Free Policy in Public Housing and identify certain steps that a PHA may want to initiate and adopt such a policy.

Step 1 – Preliminary Information and Timeline

1. Collect data and information to gauge current conditions and resident attitudes toward implementation of a smoke-free policy. A PHA may consider conducting a survey of its residents for the following information:a) The percentage of residents who smoke;b) Degree to which residents feel impacted by second hand smoke;c) Opinions about adoption of a smoke-free policy;d) Whether the household already has rules against smoking in the home; e) Need for and location of outdoor areas for smoking areas; andf) Whether current residents should be “grandfathered” and allowed to smoke in unit.

2. Draft timeline to identify all steps necessary to implement the policy:a) Information gathering and data collection.

Time: 60 daysb) Formation of briefing paper and identification of policy choices.

Time: 30 daysc) Board review and feedback on briefing paper.

Time: 1 dayd) Meet with resident councils and disseminate information to residents for comment.

Time: 30 – 45 dayse) Draft report on outcomes of meetings, administration recommendations and policy.

Time: 60 daysf) Legal Review

Time: 14 daysg) Schedule and conduct public hearing and have Board take action.

Time: 30 days

3. Conduct preliminary legal review with PHA legal counsel to determine whether any state laws will impact the adoption and implementation of a ban on smoking in its public housing.

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Step 2 – Briefing Paper

After a PHA has gathered preliminary data and initial feedback, a PHA should formulate an outline of a proposed policy in a briefing paper. The briefing paper should describe the policy choices, the advantages and disadvantages of each approach and financial implications. The briefing paper may be used to meet with the Board in a work session to discuss the general approach and obtain feedback. Some of the policy choices the PHA should consider are as follows:

1. Physical Coverage . Depending upon its inventory, a PHA should address the physical coverage of the policy. The two main choices are a PHA-wide approach or a building by building approach.

2. Financial Implications . A PHA should evaluate and consider the financial implications of the ban.

Cost savings may include: a) Reduced risk of damage – eliminating smoking cuts down on costs associated with

damage to units such as burn marks on carpets, flooring, furniture and counters.b) Reduced turn-over costs – eliminating smoking in units lowers turnover costs by reducing

the extra costs associated with cleaning and painting units damaged by smoke.c) Reduced insurance costs.

Extra expenditures may include:a) Personnel - Enforcement – Depending upon the level of compliance, PHAs may see an

increase in lease compliance issues.b) Personnel – Cleaning – PHA may see an increase in the need for clean-up of areas

designated for smoking.c) Creation of outdoor smoking areas and/or benches and cigarette disposal containers.

3. Collaboration Partners and Smoking Cessation . A PHA should consider consulting with non-profit organizations, local health departments, the local Federally Qualified Health Clinic and national initiatives by the Department of Health and Human Services that promote smoking cessation as these entities and departments can provide useful information on the health effects of secondhand smoke and the damage caused by smoking. These entities may also be a resource for providing cessation programs to public housing residents who choose to seek such resources.

4. Timing for Incoming and Current Residents . A PHA must also consider the timing of the implementation of a proposed ban. There are several choices to consider:a) Complete ban on all current and in-coming residents;b) Ban on incoming residents but allow current residents to smoke (grandfathering);c) Ban on incoming residents and delayed ban on current residents:d) Ban for current residents would initiate at a pre-determined point in time; ore) Ban would happen incrementally at annual lease renewal.

5. Physical Coverage . A PHA must decide whether the ban should extend to the entire property or a set distance from the building. Extending the ban a certain distance from the building

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will help prevent smoking in vestibules, doorways and porches that may allow smoke to enter the building.

6. Outdoor Smoking Areas . If the PHA elects not to ban smoking on the entire property then the PHA should consider its position on providing outdoor smoking areas. This may require some financial commitments depending upon the scope of the outdoor area.

7. Enforcement . As explained in Step 4, a PHA should consider the method of implementation of the specific provisions of the policy. In addition, a PHA should consider whether it wants to provide additional steps in the enforcement process. Examples of specific smoking violation enforcement may include:a) Additional warnings;b) Provision of smoking cessation material in conjunction with a warning; and/orc) Fines for non-compliance based on damage to unit.

8. Additional Issues . A PHA may want and need to consider:a) Complaint and mediation process;b) Signage; andc) An evaluation plan.

Step 3 – Board Review

At this stage the administrative team should take the briefing paper to the Board for guidance and direction. The choices and issues articulated by the Board will provide critical feedback on what aspects of the policy to focus on and consider, and help the administrative team refine the proposed policy.

Step 4 – Draft Policy

1. Policy Statement . A PHA considering a smoke-free policy should develop a statement of its goals for smoke-free public housing. An important consideration is to create a separation between controlling behavior, and protecting resident health and public housing property. Individuals have the right to smoke if they choose to do so. However, the PHA is the owner of its property and has the right to protect its property from damage and the right to address issues that may affect the health and safety of its residents. The following considerations have been cited in PHA policies that have adopted a ban on smoking:a) A smoke-free housing policy is not intended to punish anyone or force lifestyle changes.b) The purpose of having a policy on smoke-free housing is to limit a behavior that impacts

others.c) The smoking ban is intended to protect everyone from secondhand smoke as studies

show that there is no safe level of exposure.d) The focus of a smoke-free policy is to eliminate a known environmental hazard.e) Smoke-free housing will protect housing authority employees from exposure to

secondhand smoke.f) A smoke-free policy will protect housing authority property and save money from

damage caused by smoking.g) Smoking is a leading cause of household fires.

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2. Method of Adoption for Purposes of Enforcement . A PHA has two options for adopting a smoke-free policy:a) House Rules. The first option is to adopt a regulation (“house rule”) as part of its ACOP

that prohibits smoking according to the terms and conditions established by the PHA. A PHA must provide 30 days notice and an opportunity for comment to residents of any changes to policies, rules and regulations for its public housing (24 CFR 966.5). Once adopted, the regulation becomes a tenant obligation provided the rules were posted in a conspicuous location and incorporated by reference into the lease (24 CFR 966.4(f)(4)). Violation of the policy will constitute a failure of the tenant to comply with “household obligations” under 24 CFR 966.4(l)(2)(i)(B). In order to terminate the lease, the violations must be serious or repeated (24 CFR 966.4(l)(2)(i)).

b) Lease Addendum. The second option is to modify the public housing lease to include a lease addendum specifying the prohibition on smoking. The lease provision must be reasonable (42 USC §14371(l)(2)) and residents must be provided with at least 30 days notice and an opportunity to comment (24 CFR 966.3).

Each option should be based on a non-smoking policy adopted by the PHA’s Board as part of the PHA’s ACOP and PHA Plan process. Any policy should include an acknowledgement that non-compliance with the policy shall constitute a material violation of the lease. PHAs may find that courts will uphold terminations if several warnings and steps were incorporated into the lease violation process. A PHA may also find that the lease addendum provides the PHA with clearer enforcement authority when an eviction based on a violation proceeds through the court system. The lease addendum ensures that there is no argument that notice of the smoking ban was provided to the tenant.

3. Sample Policy . There are numerous examples of policies adopted by PHAs with partial or full smoke-free policies available on the internet. Your PHA may consider reviewing other policies to consider precise language.

Step 5 – Staff Policy and Other PHA Property

A PHA should also address the specific requirements of a smoke-free policy on PHA Property through its personnel policies. A PHA implementing a ban on smoking must ensure that staff are informed and comply with the same guidelines as residents. A PHA should make it clear that a violation of the smoking ban by staff constitutes a violation of the PHA Personnel Policy. A PHA may also want to consider as part of this process a ban on smoking on all its property including maintenance areas and other locations.

Step 6 – Legal Review

The PHA should submit the proposed policy to its legal counsel for review. The policy should be revised in accordance with any concerns or comments.

Step 7 - Resident Comment Period

Regardless of the requirements for changes to the lease or the adoption and approval of the policy as a function of the PHA Plan process, a PHA should consider circulating the proposed policy to residents and resident councils for comment. The administrative team may want to

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conduct a series of meetings to introduce the proposed policy and answer questions. These comment periods may be combined with the comment periods established under the PHA Plan process. A comprehensive approach will make sure that the residents are informed and have a voice in the process. Resident feedback should be taken into consideration and potential changes to the proposed policy should be considered. The feedback and responses should be compiled and documented in a format that can be presented to the Board during the public hearing process.

Step 8 – PHA Plan

In accordance with 24 CFR 903.7(e)(1), a PHA must include a reference to its “rules, standards, and policies that govern maintenance and management of housing owned, assisted, or operated by the PHA.” Subsequent changes to these policies must go through the PHA Plan process if the change constitutes a significant amendment or modification (in accordance with PHA definition) to its existing policies. See 24 CFR 903.21. A PHA should consider taking this policy through the PHA Plan process regardless of whether it is considered a significant amendment.

Step 9 – Public Hearing

Schedule and conduct public hearing for adoption of the smoking policy and changes to the PHA’s ACOP and/or lease and submission of the changes to HUD for review as part of the PHA Plan review.

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Frequently Asked Questions

1. Right to Smoke

Residents have no legal “right” to smoke in their public housing units and there is no legal requirement to provide any areas for smoking. PHAs, like any other landlord, may institute reasonable policies to protect its property and the residents residing in the property. If a properly adopted policy or lease provision prohibits smoking in the building then the tenant, and guests of the tenant, must abide by that condition.

2. Legal Review – State and Local Law

Consideration should always be given to any requirements under state and local law. This includes how a PHA changes its policies and lease.

3. American with Disabilities Act

Smoking is not a disability under the ADA. The ADA expressly states that the Act does not prohibit the adoption of reasonable rules and regulations imposing restrictions on smoking in places of public accommodation.

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