Considering quitting smoking? Now might be just the right time. Smoking bans have become the indisputable norm in the workplace and are now a clear trend for restaurants, entertainment venues, and even hotels. Take Marriott International. Last summer, the hotel giant banned smoking in all of its nearly 400,000 guest rooms.

Property managers eager to take a cue from their hospitality counterparts are now following suit. Calabasas, Calif., recently joined several other California cities in restricting smoking in apartments. The Calabasas ordinance, which went into effect in February, requires at least 80 percent of apartment buildings to be permanently designated nonsmoking; owners have until 2012 to comply. At this point, the trend is more common in public housing than in privately owned apartments: At least 47 public housing agencies have banned smoking on their properties.

Still, many multifamily firms are now considering portfolio-wide and property-specific smoke-free policies, as well as less restrictive policies that limit smoking to certain floors or buildings within a community.

NO RIGHT TO SMOKE

One of the biggest reasons many apartment firms have been hesitant to adopt smoke-free policies is a mistaken belief that restricting a resident's ability to smoke within their apartment could violate the law. In fact, firms can actually reduce their legal liability by restricting or banning smoking.

Consider the legislation introduced in California in February. The law would explicitly allow apartment operators to ban smoking in individual rental units in the Golden State. In contrast to the above-mentioned local ordinances that ban smoking, the statewide bill would allow—but not require—multifamily owners and managers to limit smoking at their California properties. Supporters of the proposed legislation say that owners often don't realize that they may ban smoking, and the law is necessary to make that legal ability clear.

Indeed, there is no “right to smoke,” and smokers are not a protected class under fair housing laws. State and federal courts have found that the act of smoking is not a protected activity under the U.S. Constitution. Some courts have ruled that even if a policy singles out or burdens smokers individually or as a group, the policy does not in and of itself violate the Constitution's Equal Protection Clause. Other courts have said simply that there is no state or federal constitutional right to smoke.

What's more, an addiction to tobacco, nicotine, or smoking is not considered to be a disability under the Fair Housing Act or the Americans With Disabilities Act. In fact, the U.S. Department of Housing and Urban Development has specifically stated that smokers are not a protected class under federal regulations. While HUD has not promulgated a policy with regard to smoking, it has said that it leaves the authority to regulate smoking in multifamily dwellings to individual property owners as long as those policies are consistent with applicable state and local laws.

According to HUD, rules restricting smoking in rental housing must be “reasonable” and must express a legitimate concern for the safety of residents and the condition of individual apartment units and the property generally. For example, a reasonable policy would grandfather existing leases or amend them upon renewal, not during an existing lease term. However, federally assisted properties that are required to use the HUD model lease must obtain prior approval of a smoke-free lease amendment just as any other lease amendments must be approved.

In contrast to conventional wisdom, apartment owners may be held more legally liable by allowing smoking than by restricting it. Residents have become more knowledgeable about the risks of secondhand smoke and savvier about pursuing legal options to protect their health. Courts in Oregon, Massachusetts, and New York have ruled against apartment owners and have ordered significant rent reductions and other penalties. A resident may sue a property owner under a variety of legal theories based on the premise that the apartment owner did not protect residents from secondhand smoke. In addition, courts have held that an apartment resident with severe breathing difficulty that is exacerbated by secondhand smoke may be entitled to reasonable accommodation under the Fair Housing Act.

Firms that decide to restrict smoking or institute a smoke-free policy should consider implementing a prospective policy at lease renewal and for new leases instead of trying to amend current lease agreements. The lease language should clearly define the purpose of the policy, proscribed activities, and owner and resident responsibilities. Plus, lease language should limit an owner's liability for violations when the owner takes all reasonable steps to enforce the policy. Finally, the lease should clearly define what constitutes a resident's breach of the smoke-free policy and the consequences of a breach. Apartment managers should be prepared to consistently enforce a policy's stated consequences of a breach.