HUD Housing Notice § 2010-21
Optional Smoke-Free Housing Policy Implementation (HUD Housing Notices)
Operative Text
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
WASHINGTON, DC 20410-8000
ASSISTANT SECRETARY FOR HOUSING-
FEDERAL HOUSING COMMISSIONER
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Special Attention of: NOTICE: H 2010-21
Multifamily Hub Directors Issued: September 15, 2010
Multifamily Program Center Directors
Rural Housing Services (RHS) Directors Expires: September 30, 2011
Supervisory Housing Project Managers
Housing Project Managers Cross References:
Contract Administrators
Multifamily Owners and Management Agents
Subject: Optional Smoke-Free Housing Policy Implementation
I. Purpose
The purpose of this Notice is to encourage owners and management agents (O/As)
participating in one of the Multifamily Housing rental assistance programs listed in Section
III of this Notice to implement smoke-free housing policies in some or all of the properties
they own or manage. This Notice provides instructions to O/As on the requirements for
implementing smoke-free housing policies and only applies to O/As who choose to establish
such policies.
II. Background
It has been proven that exposure to smoke, whether direct or secondhand, causes adverse
health outcomes such as asthma and other respiratory illnesses, cardiovascular disease, and
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 National Toxicology Program estimates that at least 250 chemicals in
secondhand smoke are known to be toxic or carcinogenic (cancer causing).
In addition to the negative health effects of secondhand smoke, smoking is a proven hazard
to physical structures. The United States Fire Administration (USFA) indicates smoking as
the number one cause of 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, 34 percent of the victims were children of the smokers,
and 25 percent were neighbors or friends of the smokers.
III. Applicability
This Notice applies to:
A. Project-based Section 8
1. New Construction
2. State Agency Financed
3. Substantial Rehabilitation
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
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F. Section 236
G. Rental Assistance Payment (RAP)
H. 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 building and grounds including any common areas, entry ways, openings to the
building (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 prohibits 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.
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 building is a totally smoke-free building. The O/A
must not maintain smoking or nonsmoking specific waiting lists for the property.
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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 property, 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 according to existing procedures found in HUD Handbook
4350.3 REV-1, Occupancy Requirements of Subsidized Multifamily Housing Programs,
Chapter 4 and the removal of names from the waiting list according to HUD Handbook
4350.3 REV-1, Occupancy Requirements of Subsidized Multifamily Housing Programs,
paragraph 4-20.
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.
B. Existing tenants. O/As must notify existing tenants, who have completed their initial
lease term, 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 term,
the owner must provide the tenant with 60 days notice, prior to the end of their lease
term, of the change in the House Rules.
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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.
/s/
________________________________
David H. Stevens
Assistant Secretary for Housing -
Federal Housing Commissioner
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Housing Notice § 2010-21 is a voluntary HUD guidance document that allows—but does not require—owners and management agents (O/As) of certain federally assisted multifamily housing programs to adopt smoke-free policies for their properties. When an O/A does choose to implement such a policy, the notice sets out specific rules about how the policy must be structured, including prohibitions on denying housing based on smoking status and requirements for advance notice to existing tenants. Repeated violations of an adopted smoke-free policy may be treated as material noncompliance with lease terms, which can lead to eviction proceedings conducted under existing HUD procedures.
Plain English — not legal advice.
Under Housing Notice § 2010-21, participation in a smoke-free policy is entirely optional, but O/As who opt in must follow a defined framework: updating House Rules and Policies and Procedures, providing 30 days' notice to existing tenants who have completed their initial lease term (or 60 days' notice before the end of the lease term for those who have not), and complying with all applicable fair housing and civil rights requirements. Compliant operators do not deny admission based on smoking status, do not ask applicants or tenants whether they smoke, and do not maintain smoking-specific waiting lists. Designated smoking areas, where permitted, must be clearly marked with signage, and any eviction pursued for repeated policy violations must follow the procedures in HUD Handbook 4350.3 REV-1, Chapter 8.
General guidance for property managers — not legal advice for your specific situation. Consult an attorney for advice on your case.
Housing Notice § 2010-21 makes clear that even if a property adopts a smoke-free policy, tenants cannot be denied housing solely because they smoke, and landlords are prohibited from asking applicants or tenants—at application, move-in, or recertification—whether anyone in the household smokes. Existing tenants as of the date a smoke-free policy is implemented cannot be required to move out or transfer units, and they must receive advance written notice before any new smoking-related House Rules take effect. Tenants who believe a property's smoke-free policy violates these protections may contact their local HUD Field Office, reach out to a tenant-rights organization, or raise the issue as a defense in any eviction proceeding brought under the policy.
General guidance for tenants — not legal advice for your specific situation. Consult a tenant-rights organization or attorney for advice on your case.
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