HUD Housing Notice § 2012-22

               U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
                                       WASHINGTON, DC 20410-8000


ASSISTANT SECRETARY FOR HOUSING-
FEDERAL HOUSING COMMISSIONER




Special Attention of:                                         NOTICE: H 2012-22

Multifamily Hub Directors                                     Issued:    October 26, 2012
Multifamily Program Center Directors
Rural Housing Services (RHS) Directors                        Expires:   This notice remains in effect
Supervisory Housing Project Managers                                     until amended, revoked, or
Housing Project Managers                                                 superseded
Contract Administrators
Multifamily Owners and Management Agents                      Cross References: H 2010-21


Subject:         Further Encouragement for O/As to Adopt Optional Smoke-Free
                 Housing Policies

I.      Purpose
        Many owners and management agents (O/As) participating in one of the Multifamily
        Housing rental assistance programs listed in Section III of this Notice have taken steps to
        implement smoke-free housing policies in some or all of the properties they own/manage
        since the issuance of Housing Notice 2010-21. The purpose of this Notice is to further
        encourage the adoption of smoke-free housing policies by O/As who have not yet chosen to
        do so. The guidance found in this Notice for O/As choosing to implement a smoke-free
        housing policy has not changed from Housing Notice 2010-21.

II.     Background
        Exposure to smoke, whether direct or secondhand, causes adverse health outcomes such as
        asthma and other respiratory illnesses, cardiovascular disease, and cancer. The 2010
        Surgeon General’s Report – How Tobacco Smoke Causes Disease: The Biology and
        Behavioral Basis for Smoking-Attributable Disease supports this statement by explaining
        that low levels of smoke exposure, including exposure to secondhand smoke, lead to a rapid
        and sharp increase in dysfunction and inflammation of the lining of blood vessels, which are
        implicated in heart attacks and strokes. Additionally, the report states that cigarette smoke
        contains more than 7,000 chemicals and compounds. Hundreds of these chemicals and
        compounds are toxic and at least 69 cause cancer.

        In 2006, the U.S. Department of Health and Human Services published The Health
        Consequences of Involuntary Exposure to Tobacco Smoke: A Report of the Surgeon
        General. This document expounds on health effects due to involuntary exposure to tobacco
        smoke. The report defines secondhand smoke, in the past referred to as environmental
       tobacco smoke (ETS), as smoke composed of sidestream smoke (the smoke released from
       the burning end of a cigarette) and exhaled mainstream smoke (the smoke exhaled by the
       smoker). The report lists several major conclusions, all based on scientific data, including
       the following: 1) The scientific evidence indicates that there is no risk-free level of
       exposure to secondhand smoke; and 2) Eliminating smoking in indoor spaces fully protects
       nonsmokers from exposure to secondhand smoke. Separating smokers from nonsmokers,
       cleaning the air, and ventilating buildings cannot eliminate exposure of nonsmokers to
       secondhand smoke.

       Below are relevant statistics and conclusions from The Health Consequences of Involuntary
       Exposure to Tobacco Smoke: A Report of the Surgeon General.
              According to a 2005 estimate by the California Environmental Protection
                  Agency, Office of Environmental Health Hazard Assessment, approximately
                  50,000 excess deaths result annually in the United States from exposure to
                  secondhand smoke.
              Children exposed to secondhand smoke are at an increased risk for sudden infant
                  death syndrome, acute respiratory infections, ear problems, and more severe
                  asthma.
              Secondhand smoke has been designated as a known human carcinogen (cancer-
                  causing agent) by the U.S. Environmental Protection Agency, National
                  Toxicology Program and the International Agency for Research on Cancer.
              Exposure of adults to secondhand smoke has immediate adverse effects on the
                  cardiovascular system and causes coronary heart disease and lung cancer.
              Nonsmokers who are exposed to secondhand smoke at home or at work increase
                  their risk of developing heart disease by 25-30 percent.
              Nonsmokers who are exposed to secondhand smoke at home or at work increase
                  their risk of developing lung cancer by 20-30 percent.

       The United States Fire Administration (USFA) indicates smoking as the number one cause
       of preventable home fire deaths in the United States. Furthermore, about 1,000 people are
       killed every year in their homes by fires caused by cigarettes and other smoking materials.
       The USFA states 25 percent of people killed in smoking-related fires are not the actual
       smokers; of this percentage, more than one third of these victims were children of the
       smokers, and 25 percent were neighbors or friends of the smokers. In addition to the
       negative health effects of secondhand smoke, smoking is a proven hazard to physical
       structures.

III.   Applicability
       This Notice applies to:

       A. Project-based Section 8
          1. New Construction
          2. State Agency Financed
          3. Substantial Rehabilitation

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         4. Section 202/8
         5. Rural Housing Services Section 515/8
         6. Loan Management Set-Aside (LMSA)
         7. Property Disposition Set-Aside (PDSA)
      B. Rent Supplement
      C. Section 202/162 Project Assistance Contract (PAC)
      D. Section 202 Project Rental Assistance Contract (PRAC)
      E. Section 811 PRAC
      F. Section 811 Project Rental Assistance Demonstration units under a Rental Assistance
         Contract
      G. Section 236
      H. Rental Assistance Payment (RAP)
      I. Section 221(d)(3) Below Market Interest Rate (BMIR)

IV.   Update to House Rules/Policies and Procedures
      O/As choosing to implement a smoke-free housing policy must update their House Rules
      and Policies and Procedures, as applicable, to incorporate the smoke-free housing
      requirements. O/As are encouraged to establish smoke-free policies that pertain specifically
      to their buildings and grounds including any common areas, entry ways, openings to the
      buildings (e.g. windows), and/or playground areas.

      In carrying out any smoke-free housing policy, O/As must comply with all applicable fair
      housing and civil rights requirements in 24 CFR 5.105, including, but not limited to, the Fair
      Housing Act; Title VI of the Civil Rights Act of 1964; Section 504 of the Rehabilitation Act
      of 1973; Title II of the American Disabilities Act; Section 109 of the Housing and
      Community Development Act of 1974.

V.    Requirements for Implementing Smoke-free Housing Policies
      O/As who choose to establish smoke-free housing policies may establish policies that allow
      smoking in individual units but prohibit smoking in all common areas or policies to create a
      totally smoke-free property.

      A. The O/A’s policies must:

         1. Be in accordance with state and local laws.

         2. Address smoking in a tenant’s unit, common areas, playground areas, areas near any
            exterior window or door, and areas outside a tenant’s unit.

         3. Designate specific smoking areas and identify these areas with clear signage
            unless the O/A establishes a totally smoke-free policy.




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      B. The O/A must not have policies that:

         1. Deny occupancy to any individual who smokes or to any individual who does not
            smoke who is otherwise eligible for admission.

         2. Allow the O/A to ask at the time of application or move-in whether the applicant or
            any members of the applicant’s household smoke. However, if the O/A has
            established a smoke-free building as of a certain date, the O/A must inform
            applicants after that date that the property is totally smoke-free. The O/A must not
            maintain smoking or nonsmoking specific waiting lists for the property.

         3. Allow the O/A to ask at the time of recertification, whether the tenant or any
            members of the tenant’s household smoke.

         4. Require existing tenants, as of the date of the implementation of the smoke-free
            housing policies, to move out of the property or to transfer from their unit to another
            unit.

      C. Grandfathering

         O/As are not required to grandfather current tenants living at their properties, however,
         they do have the option to do so. Such policies must be clearly defined (e.g. whether
         current tenants are allowed to smoke in their units).

      D. Non-smoking wings, buildings, floors, or units

         O/As are not restricted from establishing smoke-free wings, buildings, floors, and/or
         units at their property. When a unit becomes available, regardless of where this unit is
         located, it must be offered to the first eligible household on the waiting list. Waiting
         lists must be maintained (including the removal of names from the waiting list)
         according to existing procedures found in HUD Handbook 4350.3 REV-1, Occupancy
         Requirements of Subsidized Multifamily Housing Programs, Chapter 4.

      O/As who have already established smoke-free policies may continue to enforce their
      current policies so long as the policies do not violate state or local laws or any of the above
      guidance.

VI.   Implementation
      O/As must implement any new smoking-related House Rules in accordance with HUD
      Handbook 4350.3 REV-1, Occupancy Requirements of Subsidized Multifamily Housing
      Programs, paragraphs 6-9 and 6-12.

      A. New admissions. O/As are required by existing HUD policies to provide the House
         Rules to all new tenants.


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     B. Existing tenants. O/As must notify existing tenants, who have completed their initial
        lease terms, of the modifications to the House Rules 30 days prior to implementation.
        Notification is accomplished by forwarding a copy of the revised House Rules to
        existing tenants. For those tenants who have not yet completed their initial lease terms,
        the owner must provide the tenant with 60 days notice, prior to the end of their lease
        terms, of the change in the House Rules.

        Communications to applicants and existing tenants regarding smoke-free housing
        policies must be provided in a manner that is effective for persons with disabilities, see
        24 CFR § 8.6, and for persons who have limited English proficiency. O/A’s should refer
        to HUD’s published Final Guidance to Federal Financial Assistance Recipients: Title VI
        Prohibition Against National Origin Discrimination Affecting Limited English Proficient
        Persons (LEP Guidance)(72 FR 2732) for assistance and information regarding LEP
        obligations.

VII. Penalties for Violating the House Rules
     Repeated violations of the non-smoking policy may be considered material noncompliance
     with lease requirements and may result in termination of tenancy. When pursuing eviction
     due to material noncompliance with lease requirements, existing HUD procedures found in
     HUD Handbook 4350.3, REV-1, Occupancy Requirements of Subsidized Multifamily
     Housing Programs, Chapter 8 must be followed.

VIII. Further Information
     If you have any questions regarding the requirements in this Notice as they pertain to the
     Office of Housing’s programs, please contact your local HUD Field Office.




                                           ________________________________
                                           Carol J. Galante
                                           Acting Assistant Secretary for Housing -
                                             Federal Housing Commissioner




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