Property owners and managers have the right to put rules in place to protect their property and the health of their residents. It is legal for managers and landlords to make rental units smoke free.
• Smokers are not considered a protected group under anti-discrimination laws.
• Smoking is not considered a "constitutional right".1 So, a building manager or owner can keep people from smoking in the building, just as they can decide not to allow pets.
• In federally subsidized housing, you can't refuse to rent to a smoker, but you can keep them from smoking in the unit. The policy is allowed if it targets the behavior, not the smoker. That just means that smokers can rent, but can't smoke in the building.
Americans with Disabilities Act and Fair Housing Act
The Americans with Disabilities Act (ADA) allows smoke free policies.1 Since smoking is not considered a disability, smokers are not protected under the Fair Housing Act (FHA). Residents with health conditions (e.g.emphysema, heart conditions, asthma, COPD) who would be affected by secondhand smoke could be considered as having a disability under FHA.
Under the FHA, manager/owners may have to provide a "reasonable accommodation" to a resident whose disability is made worse by exposure to secondhand smoke. Possible accommodations could include adopting a smoke free policy, repairing air flow systems to keep or cut back on secondhand smoke infiltration, or adding separate ventilation or heating systems.
Disability Law Center - Utah's Protection and Advocacy Agency
The Disability Law Center is a private, not-for-profit agency. They are required by federal law to help protect the civil rights of people with disabilities. All of their services are provided free of charge. For more information visit http://disabilitylawcenter.org
The State of Utah enacted the Secondhand Smoke Amendments (SHSA) in 1997. These amendments, establish smoking is a nuisance under the law, and give apartments and condominiums the authority to ban smoking in units, common areas, on the premises, or both.
The Utah Indoor Clean Air Act (UICAA) is designed to protect Utahns and visitors from exposure to the harmful effects of secondhand smoke. In general, "Smoking is prohibited in all enclosed indoor places of public access and publicly owned buildings and offices,..." UC 26-38-3(1). Outside smoking designated areas are not allowed within 25 feet of building entrances, exits, air intakes, or windows. Ashtrays closer than 25 feet of the building are required to have a sign stating "No Smoking,""For extinguishing cigarettes only-No Smoking," or similar, R 392-510-9(1) and (2).
Public Housing (Housing and Urban Development (HUD) and Section 8)
On May 29, 2012 HUD reissued a notice of PIH Notice 2009-21 titled "Non-Smoking Policies in Public Housing." The notice states that HUD, "strongly encourages Public Housing Authorities (PHAs) to implement non-smoking policies in some or all their public housing units." The notice encourages PHAs to adopt smoke free policies in their buildings, including in common areas and in individual units.2 The notice explains the health problems associated with secondhand smoke and also points out the additional costs to PHAs of cleaning units where smokers have lived. This statement is likely to encourage many more PHAs to adopt smoke free policies.
In September 2010, HUD's Multi-family Housing Section issued a noticed titled, "Optional Smoke free Housing Policy Implementation," to encourage owners and management agents (O/As) of HUD Multi-family Housing rental assistance programs, to put smoke free policies in some or all of their properties.3 The notice explains the requirements in creating and adopting smoke free housing policies and only applies to O/As who choose to establish such policies.
These notices are huge developments in clarifying the right of local PHAs, as well as providers of Section 8, senior, and disabled affordable housing, to adopt smoke free policies for the buildings under their control. HUD's support for smoke free housing is key because many individuals and families who live in buildings receiving HUD funding are among the most vulnerable to the serious health impacts of secondhand smoke exposure.For more information on HUD housing in Utah, contact:
Salt Lake City Field Office
Department on Housing and Urban Development
125 S. State Street, Suite 3001
Salt Lake City, UT 84138
References1.Graff, Samantha K. There is No Constitution Right to Smoke: 2008. Tobacco Control Legal Consortium, 2008.
2.Department of Housing and Urban Development, Office of Public and Indian Housing. Smoke Free Policies in Public Housing. May 29, 2012.. PIH-2012-25.
3.Department of Housing and Urban Development, Office of Public and Indian Housing. Optional Smoke Free Housing Policy Implementation. September 15, 2010. H 2010-21.