It Pays to Drop the Habit

With three photos – no cutline

It chases you out of houses. It sneaks in when nobody’s home and even when you are. It makes well people sick and sick people sicker. It costs you money when it’s there, and even when it’s not. The culprit is tobacco smoke in multi-unit dwellings, and it’s under the microscope nationwide.

People are tightening restrictions on smokers, and with good reason. Death by smoking is the number one preventable cause of death in the United States, costing U.S. private and public health care $96 billion a year in smoking related or caused illnesses. But even with the American attitude of “I can do what I want in my own home,” if that home is a multi-unit dwelling – meaning any unit with at least one common wall or shared infrastructure to another unit – then what you do in your home isn’t as private as you think.

In the last few years, the policy of establishing or requiring smoke-free multi-unit housing has been growing rapidly. And in this savage economy, there are not just health issues at stake: going smoke-free saves big bucks for the bottom line.

Why Bother?

Why would apartment management companies and private landlords want to even look at applying a smoke-free policy on their tenants? Lower rehabilitation costs, for one thing. In smoke-free units, when a tenant leaves, there is no need to repair or replace carpeting, floors, drapes, fixtures, countertops or appliances damaged by burns, nicotine stains and the stink of cigarettes. That means a faster turnover time of the apartment due to less preparation and repainting (one coat of paint versus washing walls, priming and then painting). Rental industry reports say that the cost of preparing a unit for a new tenant can more than double or triple if the previous tenant was an indoor smoker. On the plus side, if a landlord declares units smoke-free, he can often get government “green” building and U.S. Department of Housing and Urban Development (HUD) points applied to funding, tax credits and tax incentives.

Then there is the reduced risk of accidental fires in the apartments, which often reduces fire insurance premiums. The number one cause of fire fatalities is cigarette-related fires. The death rate due to careless smoking is nearly four times higher than the overall residential fire rate, and injuries are more than twice as likely to happen. An often overlooked danger included in apartment dwelling is that some tenants use oxygen in their apartments – and they are frequently the ones who smoke. Smoking near portable oxygen equipment is dangerous and can result in explosions and oxygen-fed fires. The National Fire Prevention Association recommends no smoking during home oxygen use in any portion of a residence, including multi-unit dwellings.

Blowin’ Smoke

On top of the sheer costs of rehab and fire damage comes the landlord’s vulnerability to lawsuits by nonsmoking tenants dealing with secondhand smoke (SHS). Since the health dangers of secondhand smoke are now clearly documented, landlords can face potential legal liability due to nonsmoking tenants’ exposure to SHS. Tenants with pre-existing physical conditions aggravated by SHS may file complaints under the Fair Housing Act. If a resident or prospective tenant has a disability or chronic illness that is made worse by exposure to tobacco smoke, Fair Housing laws will require the landlord to make reasonable accommodations for that person. That could mean moving the person to another unit, or moving the smoker to another unit. If a resident is injured or made seriously ill by involuntary exposure to tobacco smoke in a landlord’s building, and chooses to take legal action, the landlord’s insurance coverage may not cover that liability. If there is a pollution exclusion in the landlord’s commercial general liability policy, coverage for a claim resulting from exposure to secondhand smoke could be denied.

Secondhand smoke has been medically proven to be especially hazardous to infants, children, the elderly, and people with chronic diseases, cancer or breathing disabilities. People are also recognizing that pets are highly susceptible to the dangers of SHS, which can give animals cancer, just like humans. And there is evidently no way, using today’s technology, to remove tobacco smoke entirely from circulating air in multi-unit dwellings. According to the American Association of Heating, Refrigeration and Air Conditioning Engineers (ASHRAE), currently the only way to effectively eliminate health risks associated with indoor exposure to tobacco smoke is to ban smoking entirely.

What a smoker does in his or her apartment, duplex or condo can send SHS straight into his neighbors’ homes, putting the nonsmokers at risk every time that one smoker lights up. SHS can seep through lighting fixtures, cracks in walls, around plumbing, under doors, and through shared ventilation, as well as permeate building materials and then enter adjoining units.

The U.S. Surgeon Generals reports of 2006 and 2010 have bluntly stated that there is no known safe level of exposure to SHS. Secondhand smoke is a Class A human carcinogen, according to the U.S. Environmental Protection Agency, putting it in the same danger category as arsenic, asbestos, formaldehyde and mustard gas.

No Guarantees

Because the U.S. Constitution does not guarantee the right to smoke, it is legal to prohibit smoking in multi-unit dwellings. Smokers are not considered a legally protected group, so smoke-free housing policies are not considered discriminatory because legally, smoking is considered a choice, not a mandatory action or genetic state. Landlords may write clauses into new leases or lease addendums that prohibit smoking. And smoke-free policies are not made to evict smokers, but to prohibit the act of smoking anywhere in the building. The right to adopt smoke-free housing policies also extends to affordable housing. HUD permits smoke-free adoption policy in affordable housing managed by local housing authorities. And smoke-free housing policies can apply to Section 8 housing by making a simple rule change.

Since there is no “right to smoke” under state or federal law, property owners have the legal right to adopt policies that protect their investments and the health of their tenants. The courts look at this type of policy as no different, legally, than not allowing pets or loud music. HUD issued policy memos in July 2009 and September 2010 strongly encouraging public housing authorities and subsidized housing programs to implement non-smoking policies in some or all of their public housing units.

For more information on smoke-free multi-unit housing, visit www.TobaccoFreeFlorida.com/smokefreehousing.