HUD has just announced a proposed rule intended to prohibit smoking in all public housing properties around the country. 80 Fed. Reg.71762 (Nov. 17, 2015). Specifically, within 18 months of the date of the final rule, all public housing agencies (PHAs) would be required to establish rules to prohibit smoking of “lit tobacco products” (such as cigarettes, cigars and pipes) inside all indoor areas of public housing, including individual apartments, indoor common area and management offices, and in all outdoor spaces within 25 feet of PHA buildings. The rule would not extend to mixed-finance buildings. This is an extension of a series of optional initiatives HUD has pursued to restrict smoking in affordable housing under its jurisdiction. The purpose of this rule is to improve the health of residents, and in particular to eliminate the threat that second-hand smoke poses to nonsmokers, including the elderly and children.
The proposal raises a number of interesting questions. First, while a few statutory citations are provided, there is no actual discussion of HUD’s legal authority for mandating anti-smoking policies at PHA-owned properties. If HUD is mandating this action, it would be wise to provide a detailed explanation of its authority to do so. Second, as HUD acknowledges, the largest cost of this proposal is likely to be enforcement-related, but HUD fails to quantify these costs (at least at this point). The proposal invites comments about the prospective costs the rule would impose on PHAs, and many PHAs likely will complain about the time, expense and administrative burden of enforcing system-wide anti-smoking policies. One of the odder aspects of the proposal is HUD’s acknowledgement that PHAs may find themselves considering – and possibly granting – reasonable accommodation requests from disabled person, presumably to smoke in places where non-disabled persons are barred from smoking. It is not immediately clear how reasonable it is to request permission to engage in conduct that, according to the proposed rule itself, is harmful to the smoker and other persons. The rule also makes it clear that while smoking will not be permitted, PHAs should continue to rent to persons who smoke. It is at least possible that some smokers may find themselves having to choose between a decent place to live and the need to satisfy their smoking habit.
The proposal includes a list of subjects for which additional comments are requested. Comments are due by January 19, 2016.