Establishing a Non-Smoking
Environment in Your
Community: What You Should
Know
Presented by AAHSA
January 31, 2007
Faculty
• Candi Atkins - CPM, ARM, Candi Atkins
Consulting, Las Vegas, NV
• Kathelene Coughlin Williams - Attorney with
The Law Firm of Williams & Edelstein, P.C.,
Norcross, GA
• Tom Akins - VP Development, Brewster Place,
Topeka, KS
• Alan R. “Corky” Abraham - VP Housing,
Lutheran Homes of Oshkosh, Inc., Oshkosh,
WI
• Cory Kallheim - Senior Attorney, AAHSA
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The Decision to Make a
Building Non-Smoking Operational Issues
Candi Atkins, CPM® , ARM®
Candi Atkins Consulting
Las Vegas, NV
candiatkinsconsulting.com
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The Decision to Make a Building
Non-Smoking:
Operational Issues
• Emotional Decision – fire caused death previously
• Economic Decision – turnovers are very costly in
smoker’s units
• Insurance Costs – premiums are increasing so much,
a non-smoking building may pay lower premiums
• Staff in assisted living or nursing settings are
exposed to a second hand carcinogens
• Marketing Decision – many more applicants are
anxious to not be exposed to second hand smoke
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What to Consider?
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Number of smokers in residence
Number of smokers on staff
Entire Building or Floor(s)
Overtime, through attrition or all at one time
Rights of residents and employees
Board or Owner’s opinions
Cost to make changes
How to Move Towards Change?
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Can you evict? Terminate residency?
Lease addendum
House rules
Smoking cessation classes, support,
patches, gum
• Smoking area outside of building – where,
covered
• Meetings with staff
• Meetings with residents
How Long is a “Safe” Time to Make the
Change?
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Resident profile
Employee profile
Benefit to doing it slowly – example
Commitment to decision
LEGAL ISSUES IN CREATING
A SMOKE FREE
ENVIRONMENT IN YOUR
FACILITY
Kathelene Coughlin Williams, Esq.
The Law Firm of Williams & Edelstein, P.C.
Norcross, GA
www.fairhouse.net
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RATIONALE FOR PROHIBITING
SMOKING
Danger of fire
Each year residents are killed in apartment fires caused by smokers
Results in serious property damage
Displacement of elderly residents
Smoke damage to apartments
Cost to repair unit of smoker can be twice as high due to nicotine damage
to walls, ceiling, appliances
Health concerns of second-hand smoke
Requirement to provide reasonable accommodation to disabled residents
with breathing impairments
Fire and liability insurance
Some facilities report decrease in cost of insurance
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VARIOUS OPTIONS FOR
LIMITING AND PROHIBITING
SMOKING IN YOUR FACILITY
Limiting Smoking -- Prohibiting smoking in public and
common areas
Grandfathering existing smokers -- Prohibiting
smoking in apartments of all new residents
Complete ban on smoking -- Prohibiting smoking by
all residents in all areas of the facility, including
individual apartments, except for designated smoking
areas on the property
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NON-SMOKING RULES FOR
EMPLOYEES
• There are additional considerations for banning
employees from smoking
• Facilities can always prohibit employees from
smoking on the property, or limit smoking to
designated areas on the property
• Some facilities have decided to refuse to hire or
maintain employment of smokers
• There can be positive health insurance benefits
• Must consult attorney to review state’s employment
laws
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FAIR HOUSING/CIVIL RIGHTS
CONCERNS
• The Fair Housing Act and other civil rights
laws protects certain categories of persons
• Smokers are not protected under any known
federal or state laws
• It is not discriminatory or illegal to prohibit
smoking because residents do not have a
“right” to smoke
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STEPS TO IMPLEMENT NONSMOKING RULES
• Board and/or Owners must be supportive
• Determine specific date for initiation of the
new rules
• Positive and sensitive approach
• Notice period to permit existing residents to
stop smoking or move
• Education and support residents to
encourage them to quit smoking
• Establish reasonable smoking areas
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LANDLORD TENANT
CONSIDERATIONS
• Smoking ban must be reflected in the lease and/or house rules
• Revising the lease will need to be implemented in stages
– Providing legal notice and instituting new lease or wait for
renewal for existing residents
• Consult with state landlord/tenant attorney to insure that proper
notice is provided and that a smoking ban in the lease is not
prohibited by state law
• This panel is not aware of any state that prohibits smoking bans
in residential housing
NOTE - HUD funded communities cannot revise their leases
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HUD FUNDED APARTMENTS
• Owners cannot change the HUD Model
Leases
• Owners are limited to changing the House
Rules and ensuring that the House Rules are
properly revised and incorporated into
existing leases.
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EXAMPLE OF HOUSING RULE
Complete Ban:
• [Name of Property] is a smoke-free environment. The purpose
of this rule is to protect the health and safety of our residents
and property. It is a violation of the House Rules for any
resident, guest, visitor, contractor, and/or staff persons to
smoke, carry, inhale or exhale lighted cigarettes, pipes, cigars,
or any other tobacco product anywhere inside the building
except in the designated areas. The public designated area is
[describe area(s)]. The smoking prohibition extends to
residents’ apartments, hallways, community areas, laundry
rooms, public and common areas, and the immediate areas
(within __ feet) outside the door to the building. Violation of the
smoke-free policy may result in eviction as a violation of the
House Rules, which Rules are incorporated by reference in the
lease.
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EXAMPLE OF HOUSING RULE
Smoke Free Except Apartments of Current Residents
(Grandfather Rule):
•
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[Name of Property] is becoming a smoke free environment. The
purpose of this rule is to protect the health and safety of our residents
and property. It is a violation of the House Rules for any resident, guest,
visitor, contractor, and/or staff persons to smoke, carry, inhale or exhale
lighted cigarettes, pipes, cigars, or any other tobacco product anywhere
inside the building except in the designated areas. The public
designated area is [describe area(s)]. Certain tenants’ apartments
have been designated as smoking areas if such tenants were residing
in his/her apartment prior to Management’s institution of the smokefree policy. As these tenants move out or enter into new leases, the
smoke-free policy will become effective for these apartments. Violation
of the smoke-free policy may result in eviction as a violation of the
House Rules, which Rules are incorporated by reference in the lease.
NEW HOUSE RULES
• Notice Period – 30 days
• Signed and Dated
• Referenced in the Lease
• Should also change the Tenant Selection Plan and
Application to reflect non-smoking rules
• Banning Smoking is not contrary to any HUD
regulations or policies
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HUD HANDBOOK PROVISION
Occupancy Handbook 6-9
NOTE: There are no statutory or regulatory
provisions governing smoking in assisted
housing. HUD assisted properties are required to
comply with applicable state and local laws, which
would include any laws governing smoking in
residential units. Owners are free to adopt
reasonable rules that must be related to the safety
and habitability of the building and comfort of the
tenants. Owners should make their own informed
judgment as to the enforceability of house rules
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OWNERSHIP CONSIDERATIONS
• Consult state real estate and condominium laws
• Depends upon the rights of management to
change rules for resident’s actions inside the
dwelling
• Provide legal and adequate notice to current
residents
• If existing rules cannot be revised may require
grandfathering current owners
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ENFORCEMENT
• It is important that residents believe there will be strict enforcement
• Due to difficulties of achieving a lease termination and eviction or
forced sale of dwelling by an elderly resident, develop a series of
graduated enforcement actions
• It may be necessary to remove a persistent violator – be prepared
• Thorough documentation is necessary
• Consistent enforcement is important
• Other residents will police and report violations
• Do not prepare or take action without legal consultation
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NON-SMOKING INFORMATION
WEB SITE RESOURCES
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www.mismokefreeapartment.org
www.tcsg.org
Smoke-Free Environments Law Project
The Center for Social Gerontology, Inc.
www.no-smoke.org
Americans for Non-Smokers Rights
www.smokefreeapartments.org
A registry of smoke-free apartment homes in California
www.ASH.org
Action on Smoking and Health
www.ansrmn.org
Association for Non-smokers—Minnesota
www.stateoftheair.org
Reports of the American Lung Association
www.tobacco.org
Information about tobacco
http://www.aahsa.org/advocacy/housing/operations/fact_sheets/default.asp
Click on Smoke-free housing title
Brewster Place Retirement
Community
Tom Akins
VP Development and Planning
Topeka, Kansas
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The Congregational Home
Topeka, Kansas
Three distinct components:
• 375-resident CCRC
• Separately incorporated Foundation
• LLC providing in-home and community-based
products and services targeted toward the
55+ age demographic
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Brewster Place Retirement
Community
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Founded in 1964
225 employees
26-acre campus
Annual payroll of $6.4 million
Annual operating budget of $12 million
Wellness is Our Goal
• Wellness Initiative
– Intellectual
– Social
– Spiritual
– Physical
• Activities Highlights Campaign
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Activities Highlights Campaign
• Drives our marketing efforts
• Creates an image
• Facilitates our programming
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What does all this have to do with
not smoking?
• How can we profess to be about
wellness yet turn our backs on the #1
health issue of our time?
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The Facts
It seems almost sublimely ridiculous to remember back to the days
when the tobacco industry argued forcefully that smoking was not
harmful. We know different now.
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Lung cancer is the leading cause of cancer death in the US for both men
and women
87% of lung cancer deaths can be attributed to tobacco use
In the US, tobacco use is responsible for nearly 1 in 5 deaths or an
estimated 440,000 deaths per year
According to the Centers for Disease Control, 44.5 million US adults were
smokers in 2004 (the most recent year for which numbers are available).
This is 20.9% of all adults (23.4% of men, 18.5% of women)
About half of all Americans who continue to smoke will die because of the
habit
Cigarettes kill more Americans than alcohol, car accidents, suicide, AIDS,
homicide, and illegal drugs combined
The Facts, Cont’d
• We also know that it’s not just smokers who suffer.
• Each year, secondhand smoke may be responsible for about
3,000 lung cancer deaths in non-smoking adults and an
additional 35,000 to 40,000 cases of heart disease in people
who are not current smokers.
• Secondhand smoke is a mixture of two forms of smoke:
– Sidestream smoke: smoke that comes from the end of a
lighted cigarette, pipe, or cigar
– Mainstream smoke: smoke that is exhaled by a smoker
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• The 2006 US Surgeon General’s report on
secondhand smoke reached several important
conclusions, chief among them that it causes
premature death and disease in children and adults
who do not smoke. The report also found that
exposure of adults to secondhand smoke has
immediate adverse effects on the cardiovascular
system and causes coronary heart disease and lung
cancer. Finally, it indicated that separating smokers
from non-smokers, cleaning the air, and ventilating
buildings cannot eliminate exposures of non-smokers
to secondhand smoke.
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The Policy -- Purpose
Brewster Place promotes wellness and safety
for residents, staff and volunteers, and will
develop policies that encourage people to quit
smoking and refrain from using tobacco as part
of a healthy lifestyle. Brewster Place wishes to
restrict tobacco use on the Brewster Place
campus while recognizing the rights of
individuals. Tobacco use restrictions shall be
articulated and defined through policies so that
they may be communicated to residents, staff,
volunteers and visitors.
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The Policy -- Scope
This policy applies to all Brewster Place property
including real estate and vehicles. This policy
applies, as detailed, to Brewster Place staff,
residents, volunteers, vendors, and other guests.
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The Policy
1.
2.
3.
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Smoking and use of tobacco is permitted only in
designated resident homes. Residents may permit
smoking in their homes except in buildings
designated as tobacco free.
Except as noted above, smoking or use of tobacco
in any form is prohibited on the Brewster Place
campus. Smoking or use of tobacco is also
prohibited in all Brewster Place vehicles at all
times.
Employees are not permitted to smoke or use
tobacco at any time while on duty, including
authorized break times. Employees may not
smoke or use tobacco in resident homes even if
given permission to do so by the resident.
The Policy Cont’d
• Residents who were smokers at the time of the
policy’s implementation were grandfathered in; we
also designated most accommodations on campus
as “tobacco-free” at that time and required new
residents who wished to smoke to pay an additional
fee that recognized the additional cost to Brewster of
cleaning smokers’ apartments.
• Since then, we’ve made all accommodations on
campus tobacco-free
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Preparation
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Announced six months before implementation
Steering committee of smokers and non-smokers
Met with local health department
Smoking cessation course
– Paid for completion of the course, not for stopping
smoking
• Met with local American Cancer Society Chapter
– Materials for employee meetings
– Posters for on-campus bulletin boards
– Presentations by their staff
– Favorable coverage in their newsletters and local
media
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Counted down last two months
– Posters
– Candy
– Buddy system
– Payroll stuffers
– Vendor billings
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Challenges
•Enforcement
•Visitors/Family members
•Signage
•Vendors
•Applications
–Employment
–Residents
•Marketing
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Lutheran Homes of Oshkosh
Alan “Corky” Abraham
Vice President of Housing
Oshkosh, WI
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Lutheran Homes of Oshkosh
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CCRC
Oshkosh, Wisconsin – since 1965
Sponsored by the ELCA
501(c)(3)
Approximately 600 residents: 340 staff
members
• Low-income elderly apartments, independent
retirement community, skilled nursing facility,
assisted living facility, and an Alzheimer’s
facility
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Why did we implement non-smoking
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Health affects to smokers
Health affects to non-smokers
Risk of Fire
Property Insurance costs
Maintenance costs – i.e. cleaning, re-decorating, carpeting,
painting, etc.
• Consumer demand for smoke-free apartments
• Seniors are NOT responsible smokers
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How was it implemented?
• Require staff support from the top down
• Require support of the Board of Directors
• Process for non-subsidized and subsidized
slightly different
• Both utilized a resolution to the BOD
– Resolution banned smoking for
residents, staff, contractors, visitors
including family and friends
– Unanimously endorsed and approved by the
BOD
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Resolution
Lutheran Homes of Oshkosh understands the consequences of
smoking.
They include:
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Irritation and known health effects of secondhand smoke
Increased risk of fire from smoking
Increased maintenance cleaning and redecorating costs
Higher costs of Property Insurance
Consumer demand for smoke-free apartments
Therefore, effective (date) the following facilities (name of
facilities) are to be a totally smoke-free environment and the
use of any tobacco products in any part of the building
including resident apartments by residents and/or visitors is
prohibited.
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How was it implemented? (Continued)
• Non-subsidized gave a 30-day notice to all
smokers including sponsors
– Volunteered assistance to existing smokers to
help them quit
– Provided a designated smoking area outside
– Changed the Resident Handbook
– Received no objections
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How was it implemented? (Continued)
• Subsidized process
– Held resident meetings and notified sponsors before 30-day notice
– Contacted the Department of HUD
– HUD approved with requirement to grandfather all existing
smokers permanently
– Volunteered assistance to existing smokers to help them quit
– Provided a designated smoking area outside
– Changed Resident Handbook and required all residents to
acknowledge receipt of change
– Once implemented, requested HUD to ban the “grandfather clause”
– HUD mandated a one-year grandfather term
– That HUD decision would result in a tragic fire
– Continue to admit smokers but have a non-smoking preference
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How did we enforce?
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Some residents have smoked for 50 years
Used staff and residents as “vigilantes”
Responded to every call about suspected smoker
If caught smoking in building, sent warning letter
advising it was their last chance
• To this date, have evicted four residents
• Got to commit to it and take a very strong stand
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Where do smokers go to smoke?
• Have provided a “Designated Area for Smokers”
• Located outside and away from the building
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Cannot smoke next to exit doors
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Cannot smoke on balconies
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Some residents use their vehicle to smoke in
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Some have quit because of inconvenience
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Some have chosen to move
What would we have done different?
• Go smoke-free much earlier – it was easy
• Contest the grandfather clause of HUD
• Spend more time with educating residents of
policy change
– Had a very difficult time making smoking
residents understand the seriousness of our
decision
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Final Thoughts
– Do it now, rather than later
– Don’t even consider grandfathering in smokers
NO SMOKING MEANS NO SMOKING
• Your buildings and residents are not safe with
just one smoker in the building
– If your buildings are not sprinklered, consider it
– Conduct Fire Drills regularly
– If you don’t have a disaster plan, get one
•
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IF THERE WAS ONE REASON WHY YOU WOULD GO NON-SMOKING,
TRAGIC FIRE SUCH AS OURS SHOULD CONVINCE YOU!
A
Contact Information
Candi Atkins, President
Candi Atkins Consulting, Las Vegas,
caandi@aol.com (702) 434-3933
Kathelene Coughlin Williams, Partner
The Law Firm of Williams & Edelstein, P.C., Norcross, GA
kathi@fairhouse.net (770)840-8483
Tom Akins, Vice President, Development and Planning
Brewster Place Retirement Community
toma@brewsterplace.org (785) 274-3397
Alan “Corky” Abraham, Vice President, Housing
Lutheran Homes of Oshkosh, Inc., Oshkosh, WI
cabraham@lutheranhomes.com (920) 232-5232
Cory Kallheim, Senior Attorney, AAHSA
ckallheim@aahsa.org (202) 558-5691
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