Going smoke free in senior housing has legal support


By Marianne Delorey©

“Due to state laws, the restaurant was nonsmoking, which as a nonsmoker pleases me, but as a Libertarian it pisses me off. ― Jarod Kintz, This Book Has No Title

As with many other housing providers, our community is in the process of going completely smoke free. Of course, we decided this for all the usual, logical reasons. Namely:

M.Delorey_headshotCosts — It takes about three times as much money to prep a former smoker’s unit as it does to prep a nonsmoker’s unit upon turnover.

Complaints — Smoke coming from a neighbor’s unit is a common reason for complaining about a neighbor.

Personnel — Maintenance staff, who have to work in units when something is broken, should not be exposed to carcinogens on the job.

Safety — Cigarettes are the leading cause of deaths from fire. This is an even bigger consideration when some residents may be using oxygen.

Health — Nobody benefits from smoking. Not the smoker, their neighbors, staff, or anyone visiting them.

The good news for us is that the laws support the decision to go smoke free in apartment buildings. First, despite what a lot of people believe, there is no right to smoke. Of course, it is legal, but as a landlord, we have the right to put restrictions on many behaviors in our lease. For instance, while people have the right to talk, the freedom of speech can get you kicked out of a theater. If you want to discuss the acting with your friend, the expectation is that you would do so outside where it is not going to bother others.

The same is true in housing. Your landlord has a lease that spells out expectations. You have the right to find a landlord and a lease that works for you, and your landlord has a right to put forward a lease that he or she believes will work well for their business and their customers.

A common concern is that banning smoking is discrimination. Legally, you can’t treat someone differently if they belong to a protected class. For instance, you can’t refuse to rent to someone who is a different religion. Smokers, however, are not a protected class. Moreover, in some cases it is illegal to refuse to rent to someone who is a smoker, but you can still have a nonsmoking policy because that bans the behavior, not the person.

What about people with disabilities? In housing, we often need to consider how to accommodate a disability in our rules and policies. The best known example is parking. People who, because of a disability, need a space closer to the entrance should be assigned one. This is the best way to ensure that people with disabilities have an equal opportunity to enjoy the housing environment. The argument could be made that someone who is mobility impaired will have a hard time getting off the property in order to smoke. While this is true, an accommodation to a disability cannot infringe on others. Moreover, a tenant would be hard pressed to have a doctor provide a note saying that smoking is considered a medical necessity.

There is a downside to going smoke free. We’ve had some otherwise great tenants leave and we’ve had applicants turn us down because they want to be able to smoke in their homes. Fortunately, we have healthy waiting lists and the loss of these customers has had a minimal impact.

While there are no easy answers to many questions in housing, going smoke free seems like one of the easiest. In the end, I believe this is the way that we show we care about our staff and residents and show pride in our buildings.

Marianne Delorey, Ph.D. is the executive director of Colony Retirement Homes. She can be reached at 508—755-0444 or mdelorey@colonyretirement.com and www.colonyretirementhomes.com. Archives of articles from previous issues can be read at www.fiftyplusadvocate.com