Should your building be smoke-free?
October 1, 2007
Guardian Management is making the 8,000 units it manages smoke-free. As we reported in the August issue, Guardian’s no smoking policy will prohibit smoking inside apartment units and common areas, such as entryways, parking areas, patios and balconies, as well as within 25 feet of any building on these properties. Residents will be asked to sign a no-smoking agreement upon leasing a unit, and they will be responsible for enforcing the policy within their units among inhabitants, guests and visitors.
They are doing that for several reasons. One, claimed the article we reprinted, was “more renters prefer to live in smoke-free dwellings, and would be willing to pay more to live in those environments.” Another is “A smoke-free property lowers the risk of fire, and it also lowers cleaning and maintenance bills for the removal of tobacco residue.”
Both of those reasons are probably accurate. Certainly the vast majority of Americans are nonsmokers. The Centers for Disease Control estimates that only 20.9 percent of Americans, about 45 million, smoke (see the sidebar). However, that doesn’t tell the whole story. More about that later.
The cost of renting to the average smoker is much higher than that of renting to the non-smoker. Cleanup cost alone is staggering when a smoker has lived in one of your rental units. The New York Times reported in a February 8, 2004 article,
“Professional smoke-residue cleaners, whose fees range from about $1,500 for a relatively small job to more than $10,000 for deodorizing a really large, really stinky home, employ a wide variety of cleaning agents and air-freshening machines and generally base their fees on square footage as well as what eyes and nose tell them about the condition of a property.”
Cleanup can involve installing a fresh-air replenishing device known as an ‘ozone machine’ and then removing all window treatments, ripping up all carpeting and padding, having the floors beneath refinished and repainting every square inch of the house,” reported the New York Times article. That’s only if the smoker is careful, as most are, and doesn’t start a fire in the property. The National Fire Protection Association reports that “In 2003, there were an estimated 25,600 smoking material structure fires in the United States. These fires caused 760 civilian deaths and 1,520 civilian injuries.”
Property damage from a fire caused by a careless smoker is an average of $14,478 per incident, reports the Department of Homeland Security. Fire is not the result of a careless smoker resulted in damage of $11,832 per incident.
Then there is the loss of rental income when a unit is occupied by a smoker. If there was a fire, the time it will take to put the unit back into rental condition would be months. But even if there is no fire, the cleanup time for a smoke-stained and infected unit is at least a month, what with the repainting, replacing of window coverings and rugs and cleaning out the ductwork.
A third issue is the safety and comfort of other tenants. Even assuming you have careful smokers as your tenants and there is no fire, you can run into Fair Housing issues when second-hand smoke from other tenants enters the apartment of a sensitive person. “Potentially millions of Americans on medication who are exposed to tobacco smoke,” reports the Tobacco Control Legal Consortium in their white paper, “Infiltration of Secondhand Smoke into Condominiums, Apartments and Other Multi-Unit Dwellings.” “Even though their health care providers advise them to avoid it, they would qualify as ‘disabled’ under the FHA [Fair Housing Act].”
That means that, as landlords, we would be required to provide “reasonable accommodation” to those tenants so their condition would not be exacerbated by another tenant’s second-hand smoke. Says the Tobacco Control Legal Consortium, “Such accommodations could include developing or enforcing a smoke-free policy, repairs to reduce or eliminate secondhand smoke infiltration, or adding separate ventilation or heating systems.”
Mind you, that is mostly speculation. The report from the Consortium could cite only one case where a landlord was required to make his building smoke-free, HUD case No. 05-97-0010-8 in 1998. In that situation, current smokers were asked to relocate elsewhere in the building to make some areas of the apartment building smoke-free.
How Many Tenants Smoke?
Non-smoking advocates claim that landlords won’t lose any tenants by instituting a non-smoking policy in their properties. But is that true, or just the talk of people with an axe to grind, assiduously ignoring all the facts?
Here’s the question to ask. While it is true that only 20.9 percent of Americans smoke, how many renters smoke? Cigarette smoking estimates are highest for adults with a General Education Development (GED) diploma (43.2%) or 9– 11 years of education (32.6%), and lowest for adults with an undergraduate college degree (10.7%) or a graduate college degree (7.1%). Cigarette smoking is more common among adults who live below the poverty level (29.9%) than among those living at or above the poverty level (20.6%).
How many of your tenants have GED diplomas as opposed to undergraduate college degrees? How many of your tenants live below the poverty level as opposed to above it? Just look at those figures. Over 43 percent of people with a GED smoke. That’s more than four out of every 10 people. So if your property attracts tenants who are often poorly educated, you are discouraging a high percentage of those prospective tenants.
The decision is a tradeoff. Is renting to smokers worth the tradeoff of the cleanup costs and the higher possibility of residential fires? Only you can decide if creating a smoke-free policy will work in your properties.
Isn’t It Discrimination to Not Allow Smoking?
Of course it’s discrimination. But not all discrimination is illegal; and sometimes it is a wise decision.
It is illegal to discriminate against someone on the basis of race, creed, color, national origin, religion, disability or familial status, but for any other reason it is perfectly acceptable. We discriminate against prospective tenants all the time because of amount of income, rental history, criminal records, and landlord references. That is perfectly acceptable and good business.
The 2nd Circuit Court ruled that there is no state or federal constitutional right to smoke. And on July 23, 2003 the Chief Counsel of a Housing and Urban Development (HUD) field office in Detroit said that “nothing in federal law, including the federal Fair Housing Act, prevents landlords from making some or all of their apartment units smoke-free.” (Tobacco Control Legal Consortium)
How to Go Smoke-Free
So you want to change to smoke-free properties, how do you go about it so it works with as little disruption as possible?
The Smoke-Free Apartment House Registry suggests the following: As tenants who smoke move out, inform your current tenants of your intention to convert the building to a smoke-free building. Advertise the available apartment as smoke-free. When you interview prospective tenants, ask them on the rental application whether they smoke or allow others to smoke in their home.
There is no law that prohibits asking tenants to acknowledge in the lease or month-to-month rental agreement that they do not smoke and will not smoke or allow smoking in the unit they are renting from you. In a month-to-month rental agreement, you can ask the tenant to agree that if they or their visitors begin smoking, they will move in thirty days.
Managing a Smoke-free Building
Provide information to your building manager and tenants about the reasons for converting to a smoke-free building.
Develop a protocol for your building manager to follow if there are complaints from tenants about a resident in violation of the policy or from tenants who smoke and are unhappy about the new policy.
Post “This is a smoke-free building,” or “no smoking” signs in elevators, stairwells, laundry rooms, garages, hallways, and outdoor play areas.
If you wish, designate an outdoor area for smoking which will not affect nonsmokers. (It is not necessary to have an outdoor smoking area or to allow it on the premises.)
Prepare written warning notices to send to tenants who may be violating the no-smoking policy. Send a copy of the notice to the tenants who have made the complaint.
Whether you allow smoking in your buildings is still your decision in most places in this country. The cost of allowing smoking is considerable. But the cost of not allowing it could also be considerable, depending on whom your typical tenant is.
Eventually, I believe, almost every state and/or city will try to prohibit smoking in multi-unit buildings, and maybe even in single-family homes. We need to be prepared to deal with it.