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, AAHSA2

The Decision to Make a Building Non-Smoking -

Operational Issues

Candi Atkins, CPM® , ARM® Candi Atkins Consulting

Las Vegas, NV candiatkinsconsulting.com

3

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

4

What to Consider?

• 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

5

How to Move Towards Change?• 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

6

How Long is a “Safe” Time to Make the Change?

• Resident profile• Employee profile• Benefit to doing it slowly – example• Commitment to decision

7

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

8

RATIONALE FOR PROHIBITING SMOKING

Danger of fireEach year residents are killed in apartment fires caused by smokersResults in serious property damageDisplacement of elderly residents

Smoke damage to apartmentsCost to repair unit of smoker can be twice as high due to nicotine damage to walls, ceiling, appliances

Health concerns of second-hand smokeRequirement to provide reasonable accommodation to disabled residents with breathing impairments

Fire and liability insurance Some facilities report decrease in cost of insurance

9

VARIOUS OPTIONS FOR LIMITING AND PROHIBITING SMOKING IN

YOUR FACILITYLimiting Smoking -- Prohibiting smoking in public and

common areasGrandfathering 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

10

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

11

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

12

STEPS TO IMPLEMENT NON- SMOKING 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

13

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

14

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.

15

EXAMPLE OF HOUSING RULEComplete 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.

16

EXAMPLE OF HOUSING RULESmoke Free Except Apartments of Current Residents

(Grandfather Rule):• [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 smoke-free 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.

17

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

18

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

19

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

20

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

21

NON-SMOKING INFORMATIONWEB SITE RESOURCES

• www.mismokefreeapartment.org• www.tcsg.org

Smoke-Free Environments Law ProjectThe Center for Social Gerontology, Inc.

• www.no-smoke.orgAmericans for Non-Smokers Rights

• www.smokefreeapartments.orgA registry of smoke-free apartment homes in California

• www.ASH.orgAction on Smoking and Health

• www.ansrmn.orgAssociation for Non-smokers—Minnesota

• www.stateoftheair.orgReports of the American Lung Association

• www.tobacco.orgInformation about tobacco

• http://www.aahsa.org/advocacy/housing/operations/fact_sheets/default.aspClick on Smoke-free housing title

22

Brewster Place Retirement Community

Tom AkinsVP Development and Planning

Topeka, Kansas

23

The Congregational HomeTopeka, 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

24

Brewster Place Retirement Community

• Founded in 1964• 225 employees• 26-acre campus• Annual payroll of $6.4 million• Annual operating budget of $12 million

25

Wellness is Our Goal

• Wellness Initiative– Intellectual– Social– Spiritual– Physical

• Activities Highlights Campaign

26

27

Activities Highlights Campaign

• Drives our marketing efforts

• Creates an image

• Facilitates our programming

28

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?

29

The FactsIt seems almost sublimely ridiculous to remember back to the dayswhen the tobacco industry argued forcefully that smoking was notharmful. We know different now.

• 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

30

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

31

• 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.

32

The Policy -- PurposeBrewster 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.

33

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.

34

The Policy1. 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.

2. 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.

3. 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.

35

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

36

Preparation• 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

37

Counted down last two months

– Posters

– Candy

– Buddy system

– Payroll stuffers

– Vendor billings

38

Challenges•Enforcement•Visitors/Family members•Signage•Vendors•Applications

–Employment–Residents

•Marketing

39

Lutheran Homes of Oshkosh

Alan “Corky” AbrahamVice President of Housing

Oshkosh, WI

40

Lutheran Homes of Oshkosh• 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

41

Why did we implement non-smoking

• 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

42

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

43

ResolutionLutheran Homes of Oshkosh understands the consequences of

smoking.

They include:– 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.

44

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

45

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

46

How did we enforce?

• 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

47

Where do smokers go to smoke?• Have provided a “Designated Area for Smokers”

• Located outside and away from the building

– Cannot smoke next to exit doors

– Cannot smoke on balconies

– Some residents use their vehicle to smoke in

– Some have quit because of inconvenience

– Some have chosen to move

48

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

49

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

• IF THERE WAS ONE REASON WHY YOU WOULD GO NON-SMOKING, A TRAGIC FIRE SUCH AS OURS SHOULD CONVINCE YOU!

50

Contact InformationCandi 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 PlanningBrewster Place Retirement Communitytoma@brewsterplace.org (785) 274-3397

Alan “Corky” Abraham, Vice President, HousingLutheran Homes of Oshkosh, Inc., Oshkosh, WIcabraham@lutheranhomes.com (920) 232-5232

Cory Kallheim, Senior Attorney, AAHSAckallheim@aahsa.org (202) 558-5691

51