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Risk of Preemption in the Smoke-Free Housing Movement

Tuesday, October 18, 2011

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Over the last few years, the movement to promote smoke-free policies for multi-unit housing has been extremely successful.  Thousands of privately own apartment buildings have voluntarily implemented policies prohibiting or significantly restricting smoking in common areas, individual units, on patios and balconies and on the entire property.  Public housing authorities across the country have recognized the benefits of going smoke-free—healthier properties for their residents, reduction in the risk of fire, and drastically reduced maintenance costs for non-smoking units—and have implemented smoke-free policies for some or all of their buildings.

Local governments have also joined the movement.  Several counties and cities in California have adopted ordinances that mandate that multi-unit residential properties implement smoke-free policies.  In some cases, the ordinances apply to both rental properties and to condominium complexes.  Some cities, and one state, have adopted law requiring that property owners disclose the smoking policy for the unit, regardless of whether the policy permits or prohibits smoking.

The federal government is now supporting the transition of properties that the Department of Housing and Urban Development supports from being smoking permitted to smoke-free.  A Notice was issued in 2009 strongly encouraging all public housing authorities to adopt smoke-free policies for some or all of their buildings.  This was followed by a similar notice in 2010, encouraging owners of Housing Choice Voucher project-based properties to consider adopting smoke-free policies.

With all this success, the movement has seen few efforts to preempt local laws or to restrict the grassroots, voluntary efforts.  But some attempts to throttle the speed of the movement may be appearing.  The opposition to stronger smoke-free policies could include the tobacco companies, residential housing associations, landlords, tenant advocacy organizations, and condominium homeowners’ associations.  Opposition from the tobacco industry is to be expected, but opposition from the other groups is less certain, because all these groups should see benefits from adopting smoke-free policies.  Possible negative economic consequences are the primary reasons that smoke-free policies are viewed with caution.  Landlords and property owners are hesitant to alienate any part of the market when occupancy rates may be an issue.  Tenant advocacy groups may see the additional restrictions on residents as another opportunity for eviction.  And homeowners’ associations are reluctant to tell owner-occupants what they can do in their own homes.

Preemption may take several forms. In North Carolina, a provision in the state-wide clean indoor air law prohibits local ordinances that restrict smoking in private residences.  Public housing authorities are considered local units of government in North Carolina, so no public housing developments can adopt policies prohibiting smoking in the individual units.  This provision in the law also prohibits counties and cities from mandating smoke-free properties by ordinance as has occurred in several communities in California.

A bill that has been introduced in Massachusetts over the last few years would mandate the provision of smoke-free buildings or smoke-free floors in public housing for the elderly.  However, the second provision of the bill states, “The provisions of section 1 shall be accomplished on a phased-in basis and shall not result in the eviction of any tenant.”  This broad language could result in public housing for the elderly never being able to enforce their policies, because the language does not state that the restriction on enforcement shall only be applied to existing smokers and not to new residents.

Attempts to satisfy broad constituencies with some form of smoking restricted policy for housing could potentially result in statutes that delay more aggressive policies at the local level.  Smoke-free housing advocates will need to review potential state  and federal legislation ostensibly promoting smoke-free housing to ensure that the laws do not contain preemption or otherwise enshrine weak policies that slow the growth of 100% smoke-free multi-unit properties.

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