Smoke-Free Housing: Updates and Hot Topics

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1 PUBLIC HEALTH POLICY CHANGE Smoke-Free Housing: Updates and Hot Topics November 22, 2013

2 Public Health Policy Change Webinar Series Providing substantive public health policy knowledge and legal research in an interactive format Covering public health policy topics surrounding Tobacco, Obesity Prevention, School and Worksite Wellness, and more Visit for information about past and upcoming webinars The legal information and assistance provided in this webinar does not constitute legal advice or legal representation.

3 How to Use WebEx If you can hear us through your computer, you do not need to dial into the call. Just adjust your computer speakers as needed. If you need technical assistance, call WebEx Technical Support at All participants are muted. Type a question into the Q & A panel for our panelists to answer. Send your questions in at any time. This webinar is being recorded. If you arrive late, miss details or would like to share it, we will send you a link to this recording after the session has ended.

4 The Tobacco Control Legal Consortium The Legal Network for Tobacco Control: A national network of attorneys and legal centers dedicated to advancing tobacco control policy.

5 What We Do: Policy development Litigation Support Legal research, analysis, and interpretation Education and training

6 Today s Presenters Warren Ortland; Staff Attorney, Public Health Law Center Whitney Dodds; Staff Attorney, Center for Public Health and Tobacco Policy Matthew Moore; Staff Attorney, ChangeLab Solutions

7 Smoke-Free Policies in Housing for Special Populations Smoke-Free Housing Webinar: Updates and Hot Topics November 22, 2013

8 Contact Information Whitney S. Dodds Staff Attorney Center for Public Health and Tobacco Policy NEW ENGLAND LAW BOSTON 154 Stuart Street, Boston, MA

9 Disclaimer This presentation provides educational information and does not constitute and cannot be relied upon as legal advice. The Center for Public Health and Tobacco Policy does not provide legal representation.

10 Topics Smoke-free policies & special populations: Rationale Benefits Legal Considerations Obstacles to Implementation Best Practices

11 Housing Serving Special Populations Therapeutic housing serving: Mental illness Drug addiction Criminal rehabilitation Physical rehabilitation Other Non-Therapeutic housing serving: Senior citizens Low income Homeless Other

12 Special Considerations Why is a smoke-free housing policy of particular importance in housing for special populations? A leading cause of death Fewer housing options/more restricted housing mobility Suffering health ailments exacerbated by SHS Toxins in tobacco smoke can interfere with medications

13 Why go Smoke-Free? Benefits of smoke-free policies: Reduce SHS exposure Improved safety Reduced cleaning costs Change community norms

14 Legal/Policy Support Surgeon General acknowledged health dangers. Fed, State, Local have reacted. Policy support: E.g., HUD toolkits & guide; Centers for Disease Control; American Lung Association

15 Legal Landscape Smoke-Free Laws Federal, state, local specific indoor air specific outdoor air Court interpretation(s) Other Relevant Laws Federal, state, local individual rights anti-discrimination legal liabilities Policy: make implicit explicit; fill gaps; community tailored

16 Legal Considerations Smoke-Free Policies are Permissible It is NOT discriminatory to designate an entire property smoke-free. Smoking is not a protected right. An individual s status as a smoker is not a protected category (such as race, ethnicity, national origin). Nicotine addiction/smoking is not a recognized disability (no reasonable accommodation required). Implement policy based on activity (smoking) not status (smoker).

17 SHS and Liability Considerations What are the potential SHS claims? Negligence Nuisance Breach of warranty of habitability Constructive eviction Trespass Breach of covenant of quiet enjoyment ADA or FHA reasonable accommodation No court has found smoke-free policies to increase liability for housing providers.

18 Obstacles to Implementation

19 Obstacles to Implementation Achieving buy in Purpose of housing vs. enforcement of policy Economic disadvantage Special requirements for campus facilities Other

20 Best Practices Type of policy ocomplete Ban no smoking on units and grounds provides the most protection from SHS straightforward enforcement effects all residents on same date

21 Best Practices Education Address concerns; garner wide support Share cessation resources Drafting Compliance with federal, state, local laws Comprehensive coverage o what products, where used, by whom Reasonable notice Explicit, realistic consequences Implementation Consistent, reliable enforcement Inclusion with other housing rules

22 Notify Residents & Post Signs

23 Enforcement/Compliance Specify enforcement plan and consequences for violations Warnings, fines, repercussions that work for your community Document violations Ask reporting residents to document Note from where odor originates; Date, time Seek witness, if possible Prompt & consistent response Enforce smoke-free policy the same way other policies are enforced Smoke-free polices are largely self-enforcing.

24 Tobaccopolicycenter.org

25 Tobaccopolicycenter.org

26 Tobaccopolicycenter.org

27 Tobaccopolicycenter.org

28 Tobaccopolicycenter.org

29 Tobaccopolicycenter.org

30 Contact Information Whitney S. Dodds Staff Attorney Center for Public Health and Tobacco Policy NEW ENGLAND LAW BOSTON 154 Stuart Street, Boston, MA

31 Smokefree Multi-Unit Housing Laws and Housing Accessibility Evaluating and Addressing Concerns about Fair Enforcement Matthew Moore Staff Attorney

32 ChangeLab Solutions creates innovative law and policy solutions that transform neighborhoods, cities, and states. We do this because achieving the common good means everyone has safe places to live and be active, nourishing food, and more opportunities to ensure health. Our unique approach, backed by decades of solid research and proven results, helps the public and private sectors make communities more livable, especially for those who are at highest risk because they have the fewest resources.

33 The health benefits of smokefree housing are clear There is no risk-free level of exposure to secondhand smoke

34 Research on how smoke drifts through the air SidePak Monitor Air Speed Monitor Air Speed Monitor Neil Kelpeis Ph.D

35 Including in indoor spaces Photo:

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42 Belmont Calabasas Novato Loma Linda Rohnert Park Richmond Pleasant Hill Pinole Sebastopol South Pasadena Contra Costa County Santa Clara County Union City Larkspur Fairfax Pasadena Dublin Tiburon Sonoma County Compton Baldwin Park Alameda Huntington Park San Rafael

43 Smokefree housing

44 Enforcement, Evaluation and Continued Improvement

45 Disabled Tenants Image:

46 Tenants Safety Image:

47 Pretextual Eviction Image:

48 Balancing interests Image:

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54 DISCLAIMER The information provided in this discussion is for informational purposes only, and does not constitute legal advice. ChangeLab Solutions does not enter into attorney-client relationships. ChangeLab Solutions is a non-partisan, nonprofit organization that educates and informs the public through objective, nonpartisan analysis, study, and/or research. The primary purpose of this discussion is to address legal and/or policy options to improve public health. There is no intent to reflect a view on specific legislation ChangeLab Solutions

55 Matthew Moore This material was made possible by funds received from Grant Number with the California Department of Public Health, California Tobacco Control Program California Department of Public Health. This material may not be reproduced or disseminated without prior written permission from the California Department of Public Health.

56 HOT TOPICS Warren Ortland Staff Attorney, Public Health Law Center E-Cigarettes Medical Marijuana Disclosure Resources

57 Electronic Cigarettes Not regulated by the Food and Drug Administration Component materials are not fully known Can cause confusion with enforcement Can pose role-modeling issue

58 Medical marijuana HUD Memos (1999, 2011)

59 Medical marijuana Marijuana is still federally controlled substance Federal law preempts local law Housing authorities cannot admit current users of medical marijuana Housing authorities cannot grant reasonable accommodation requests for use of medical marijuana Housing authorities have discretion on treatment of existing residents using medical marijuana

60 Disclosure Inform renters of smoking policy prior to rental Prevention for tenants Education for landlords Can apply to rental units and condominiums Oakland, CA; Buffalo, NY; Duluth, MN; Maine and Oregon

61 Resources Webinars Promoting Smoke-Free Policies for Public Housing Addressing Health Disparities: Smoke-Free Policies for Public Housing No-Smoking Policies in Condos: Working with Community Associations & Common Interest Communities Palliative Care versus Harmful Exposure: Secondhand Medical Marijuana Smoke in Multi-Unit Housing

62 Resources Publications First Steps Towards Making Affordable Housing Smoke-Free Creating Smoke-Free Affordable Housing Disclosure of Smoking Policies in Multi-Unit Housing Thirdhand Smoke: A Select Bibliography of Recent Studies Smoke-Free Common Interest Communities: Legal Fact Sheet Legal Options for Condominium Owners Exposed to Secondhand Smoke

63 Q&A Session Type Questions in WebEx Chat Box Moderator Will Direct Questions to Speakers Questions after today s presentation? us at:

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