UNITS - Oklahoma Magazine...Reprinted with permission from the December 2007 issue of UNITS magazine, published by the National Apartment Association (NAA). For more information about

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Clearing theAir

Industry Discusses Trend Toward Smoke-Free Housing

Also

• Top 10 Markets for 2008• Student Housing Grows Up

• Annual Report Inside

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BY SUSAN SCHOENMARKLIN AND JACQUE PETTERSON

Smoke Signals

W hether change comes voluntarily or through the passage of laws,the demand for smoke-free housing is only going to increase,according to recent studies and apartment executives. More andmore cities and states are banning smoking in public places and residents arebecoming increasingly knowledgeable about the hazards of secondhand smoke.

In this new era, many owners and managers are choosing not to ignore the problems that can result from a smoke-friendly community. They are finding that keeping the smoke out is the best way to retain both residents and profits.

Following is a five-part look at smoke-free apartment communities, including reasons for such a policy, implementing a policy at large and smallcommunities, awareness of legal implications and efforts and effects of remediating rental homes previously occupied by smokers.

Susan Schoenmarklin is a consulting attorney for the Smokefree Environments Law Project(SFELP) and can be reached at 414/581-3746 or [email protected]. SFELP is based in AnnArbor, Mich., and is at www.tcsg.org/sfelp/home.htm.

Kylie Meiner, MPH, is part of the Portland-Vancouver Metro Area Smokefree Housing Project,www.smokefreehousingNW.com, and is a collaborative effort of the American Lung Associa-tion of Oregon, Clark County Public Health and the Multnomah County Health Department.

Jacque Petterson is the owner of Smoke-Free Housing Consultants, based in Helotes, Texas.She can be reached at 210/383-3244 or [email protected].

About This Report

Reprinted with permission from the December 2007 issue of UNITS magazine,published by the National Apartment Association (NAA). For more informationabout NAA, please visit www.naahq.org or call 703/518-6141.

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A s public awareness about second-hand cigarette smoke’s hazardsgrows stronger, pressure ismounting for owners and managers ofthe nation’s apartment communities toprovide smoke-free living spaces.

Fortunately, what is in the best interestof resident health is also in the best inter-est of community owners’ bottom lines.Surveys from market research firms inPortland, Ore., and in Minneapolis andSt. Paul, Minn., as well as informal pollsof renters from across the country, show ahigh demand for smoking to be bannedin apartments, which means more resi-dents and more revenue for those ownerswho meet that demand.

Before smoke-free air laws becameprevalent in the mid-1990s, it wouldhave been difficult to imagine rentingan apartment without tobacco stains onthe bathroom vanity and carpet.Although the smoking rate may be high-er in some areas, the Centers for DiseaseControl note that less than one quarter(21 percent) of American adults smoketoday. That means almost 80 percent ofadults do not smoke, and of those whodo, some smoke outdoors to protectloved ones and to avoid allowing theodor to seep into their furnishings.

Nation-Wide AppealTo assess the market’s impression of

secondhand smoke in the apartmentarena, the Portland-Vancouver MetroArea Smokefree Housing Project commis-sioned a market survey of area renters in2006. It found that 75 percent of renterswould prefer living in a smoke-free build-ing, and more than half would be willingto pay more rent to live in a smoke-freecommunity.

Kirk Taylor, Executive Vice President inthe Portland office of real estate firm CBRichard Ellis, said business for ownerswith no-smoking policies will improvebecause they will be able to show healthi-er-looking apartment home rentals. “Fora [prospective resident who is a] non-smoker, it’s like walking into a place with

a dirty toilet,” Taylor said. “They think,‘Why would I want to rent this thing?’ ”

Three-quarters of respondents support-ed the right of owners to prohibit smok-ing in order to prevent secondhandsmoke from seeping into neighboringunits. The survey also found that whileone-fourth of residents smoke, most arealready taking the habit outside; only 11percent of renters smoke inside theirapartment homes on a regular basis.

Other surveys show a similarly strongpreference for no-smoking apartments onthe East Coast and in the Midwest. Arecent survey by the New York Coalitionfor a Smoke-Free City found that morethan 69 percent of New Yorkers want tolive in smoke-free buildings, and nearlyhalf of them would pay more to live incommunities that ban smoking.

In a 2006 survey of King County Hous-ing Authority residents conducted by theUniversity of Washington, 84 percentreported that they did not allow smokingin their apartment homes. Surprisingly,although disabled respondents had asmoking rate of 39 percent, more thantwo-thirds did not allow smoking in theirapartment homes.

Nearly three-quarters (73 percent) ofresidents surveyed supported prohibitingsmoking inside apartments in housingauthority buildings.

Many market leaders across the coun-try are discovering that, contrary to con-ventional thought, when they bansmoking from their communities theyattract new residents—those seekingapartments that do not allow smoking.These community owners’ profits areencouraging others to join the trend.

Katie Zuleski, who manages 160 resi-dences for Flo Mar Apartments in Ypsilan-ti, Mich., said that she believes thechange to a smoke-free community “hasbeen a selling point for us. It has madeour community that much more attrac-tive to prospective residents. I think it isbeneficial to our bottom line.”

On Sept. 1, Guardian Management, areal-estate investment and management

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firm based in Portland, Ore., operating inseven states, prohibited smoking inapproximately 8,000 of its conventionaland affordable housing units after thesuccess of a no-smoking policy adoptedfor its new communities.

“We have successfully implementedno-smoking policies in several of our newcommunities, and we have found thatresidents appreciate the amenity,” TomBrenneke, Owner and President ofGuardian Management, said. “In addi-tion to the health benefits of a smoke-freeenvironment, we can provide residentswith cleaner, better maintained resi-dences and a reduced fire risk.”

Raising the RentCharlene Jacobson, who owns and

manages Elmcrest Estates in Waterloo,Iowa, banned smoking in her apartmentsnearly a decade ago. At first, some of herresidents did not renew their leasesbecause of the no-smoking rule, buttoday she has no vacancies, and when anapartment is up for lease, someone is

ready to rent the open apartment. “Froma manager’s standpoint, it has been avery smart decision,” said Jacobson.

According to a Minnesota study ofboth large and small apartment com-munities, 95 percent of owners or man-agers who have prohibited smoking intheir apartments reported that no-smok-ing policies either increased occupancyor had no impact either way. A fewcommunity owners and managers even

raised their rents as a result of the poli-cy change.

The Low Income Housing Instituterecently opened a smoke-free apartmentcommunity in Seattle, and one of its firstresidents was a regular smoker. ExecutiveDirector Sharon Lee said the resident wasdirected to smoke outside—a communitypolicy he has embraced.

“He figured it’s good for him,” Leesaid. “He said it’s good for his health notto smoke in his apartment, and he willget lots of exercise walking up and downthe stairs to go outside to smoke.”

“By being an early implementer ofsmoke-free policies, a community man-agement company could earn a reputa-tion in the market for doing a better jobof recognizing and offering the amenitiesthat residents want, while at the sametime ensuring higher retained earningsas a result of lower maintenance andrelated costs,” said John Campbell, Presi-dent of Campbell DeLong Resources, themarket research firm that conducted thePortland area survey. ■

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“In addition to the health benefits of asmoke-free environment,we can provide residentswith cleaner, better maintained residencesand a reduced fire risk.”

—Tom BrennekeOwner and President

Guardian Management

No Smoking, No Problem

Few owners experience backlash from residents after implementing and enforcing a no-smoking policy.

Although it is natural to worryabout change, community man-agers who banned smoking intheir communities have found it mucheasier than imagined.

The president of one large managementcompany, Centrum Management, whichhas 5,450 affordable housing residences,prohibited smoking for all new residentsand was pleased with the change. Centrumoperates in four states, including tobacco-friendly North Carolina.

In a recent interview, Centrum Presi-dent Rob Couch said that he had notheard a “single negative comment” fromanybody, and that “a lot of people havecome up and said, ‘Thank you verymuch.’ ”

Monica Slamkowski, CommunityAdministrator at the Village at the BluffsApartments in Colorado Springs, Colo.,said the most important thing for herwhen implementing the policy was having the support of all of the uppermanagement in her company.

Slamkowski’s community became 100percent smoke-free Feb. 1, 2007. Preparedfor a battle, she gave the community’ssmoking residents notice (she suggests 30to 60 days) and said she found it interest-

ing that they did not complain.Katie Zuleski, who manages 160 apart-

ments for Flo Mar Apartments in Ypsilan-ti, Mich., said the community’s transitionto banning smoking three years ago went“smoothly.”

“There was no backlash,” Zuleski said.“People love it; for the most part, I don’tget negative input.” She said when man-agement decided to adopt a no-smokingpolicy in the apartments, only one per-son, a smoker, complained. The smokerwas given one year to comply with thenew policy.

Community owners and managerswho have banned smoking have foundthat enforcement is a lot easier thanmediating disputes between smokers andnon-smokers without a policy in place.

Gruber Management, based in AnnArbor, Mich., has banned smoking in its40 apartment residences for 20 years with-out significant enforcement difficulties.Fred Gruber, President, said that onlytwice in the past 10 years has he had tocollect a fine from a resident who violatedthe smoke-free policy.

Gruber’s lease specifies that smoking isnot permissible anywhere in the communi-ty and levies a fine for smoking violations.

State & Local Policies in ProgressSmoke-free apartment housing

educational initiatives are being consid-ered in many states, including Califor-nia, Colorado, Maine, Maryland,Massachusetts, Michigan, Minnesota,New Jersey, New York, Oregon, Utah andWashington.

In addition to voluntary efforts, there is a movement in California to pass lawsrequiring some smoke-free apartments.

On Sept. 11, 2007, Belmont, Calif.,passed an ordinance that went into effectSept. 31, requiring all multifamily build-ings, with the exception of side-by-sidetown homes, to be smoke-free within 14months.

Temecula, Calif., recently passed anordinance requiring 25 percent of allapartment housing (contiguous resi-dences) to be smoke-free.

The California city councils in Calabasas and Belmont are consideringlaws that require some smoke-free apart-ments with residents not in complianceto be fined or evicted.

The industry’s position is for owners tovoluntarily enforce no-smoking policiesat their communities, instead of beingforced to do so based on legislation. ■




Model Lease Language for Smoke-Free Communities

A n apartment community owner or manager interested in operating asmoke-free community may consider reviewing a model lease draftedfor the Center for Energy and Environment by a legal advisory committee that included attorneys who regularly represent community owners and managers.

Among other provisions, the lease states that the owner or manager isnot a guarantor of smoke-free environments and informs residents that theirassistance with enforcement is needed. The model lease is available atwww.mncee.org/pdf/research/report.pdf.

Work with Residents to Achieve a Smoke-Free Environment

C reating a smoke-free communityrequires community managers’ dedication, but it also requires committed residents. Owners can takeseveral steps to encourage the successof a no-smoking policy:

•Advertise the apartments as smoke-freeto attract residents who do not smokeor who smoke only outside. Informprospective residents of the no-smokingpolicy when showing the community.

•Put the no-smoking rule in the leaseagreement and highlight the rule forresidents as they sign their leases. Forexisting residents, request that theysign a no-smoking lease addendum.

•Post “No Smoking” signs in the building and around the community.

•Inform residents that smoking in theirapartments will expose them to financial obligations for bringing theapartment back to rentable condition.

•Use the same warning and enforcementmethods for smoking rule violations thatare used for other community rules.To accommodate residents who do

smoke and who are in good standing, con-sider providing a designated outdoor smok-ing area. The space should be at least 25feet away from windows and doors. Clearlymark the area to help avoid confusion. ■

Jim Wiard is a Portfolio Manager withGuardian Management, which recentlyapplied a no-smoking policy to approxi-mately 8,000 apartments in the West.

BY JIM WIARD

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Filtering Out Smokers

Independent rental owner Rich Sommer has perfected the fine art of informing prospective residents of a no-smoking policy.

A ccording to Rich Sommer, anindependent rental owner inStevens Point, Wisc., askingapplicants up front whether or notthey smoke can clear the air about a no-smoking policy.

During a prospective resident’s firstphone call or visit to the community,Sommer asks, “Do you smoke?” Even ifthey say “only outside,” he tells themthat he rents only to non-smokers.“Yes, some callers get upset,” Sommersaid. “We also ask about the smokinghabits of everyone who will be living inthe apartment and explain that theirguests cannot smoke in the building,either.”

Sommer said this line of questioningcauses him to eliminate many potentialresidents. “It is almost like askingcallers if they will have any money topay the rent,” Sommer said. “Theiranswer right there may eliminate a lot

of people. They may have two jobs,make $900 a month and are calling ona $600 apartment. With no smoking, nopets and the requirement to havemoney to pay the rent, we continue theconversation with only about one in 10callers.”

Sommer said the positive side to leas-ing in a no-smoking community is thathe can promote his smoke-free policy tocurrent and prospective residents.

“When we get the right people on theapartment tour, we point out that theywill not have to deal with smoke odorsor pet sounds or odors, and they appre-ciate that,” Sommer said. “When youfill your community with residents whodon’t smoke, the policy is easy toenforce, because no one is lighting up.”

Sommer said one of his residentsrecently wanted to add a roommate tohis lease. “The roommate had no prob-lem with the size of the apartment or

the rent increase, but we later learnedthat the roommate smoked,” Sommersaid. “So, we ended the lease with our30-day notice clause and then had tore-rent the apartment. This can hap-pen, but it won’t happen frequently ifthe owner sets the right tone in the no-smoking policy from the beginning.” ■

This article was written based on a message Rich Sommer posted on NAA’s IRO List Serve at www.naahq.org.Sommer can be reached at 715/341-3158 or [email protected].


A partment owners in every stateare free to ban smoking in theirrental communities, just as theyare free to ban pets or loud music. Thisincludes prohibiting individuals fromsmoking in their apartments, as well asin common areas, such as pools andplaygrounds.

A U.S. Surgeon General’s report issuedin 2006, “The Health Consequences ofInvoluntary Exposure to TobaccoSmoke,” states, “a review of potentiallegal remedies for residents affected bysecondhand smoke concluded that stateregulations, such as sanitary codes, pro-vide general language for protecting thehealth of residents in multi-unit build-ings. Residents can also use traditionalclaims of nuisance, warranties of habit-ability and the right of quiet enjoyment.”

Some managers mistakenly believethat residents have a right to smoke, butstate and federal courts have made itclear that smoking is not a protectedactivity. There are a number of cases inwhich smokers have sued for the “right”to smoke, and the smoker has lost everytime.

In the words of one court: “There is nomore a fundamental right to smoke ciga-rettes than there is to shoot up or snortheroin or cocaine or run a red light”

(Fagan v. Axelrod, 550 N.Y.S. 2d 552(1990)). For details, see Samantha Graf,Tobacco Control Legal Consortium,“There is No Constitutional Right toSmoke” (2005), which is available atwww.tobaccolawcenter.org.

Instead of worrying about the smoker,the more critical legal worry for ownersand managers should be liability forhealth problems caused by secondhandsmoke.

A Nuisance to ResidentsDavid Wasserman, Vice President of the

San Francisco Apartment Association whoalso serves on the Government AffairsCommittee for the California ApartmentAssociation, recently warned that courtswere likely to consider secondhand smoke“a nuisance,” or an act that substantiallyinterferes with enjoyment of property, inlight of new scientific evidence of itshealth effects.

In an article for a San Francisco Apart-ment Association publication, Wassermanwrote that “the [community owner ormanager] could face problems for failureto abate the nuisance if another [resi-dent] is injured as a result of the second-hand smoke. Imagine the claim apregnant [resident] could make for beingexposed to these toxins.” Wasserman

advised community owners and man-agers to consider eliminating smoking intheir buildings “before a claim can bemade against you.”

In 2004, the Ohio Court of Appealsupheld a jury verdict granting a damageaward and rent reduction to a residentbased on a finding that secondhandsmoke from an adjoining apartment wasinfiltrating his apartment (Heck v.Whitehurst). The jury found that thecommunity owner failed to keep the non-smoker’s apartment in habitable condi-tion even though the owner said he hadmade numerous efforts to seal the non-smoker’s apartment. In another recentcase, Poyck v. Bryant, a New York courtfound that secondhand smoke driftingbetween apartments was a breach of theimplied warranty of habitability.

Additionally, federal fair housing lawscould be interpreted to require prohibit-ing smoking in common areas andneighboring units from which smokemay drift. In a 1998 case against arental-housing community receiving sub-sidies from the U.S. Department of Hous-ing and Urban Development, thedepartment approved as a “reasonableaccommodation” a conciliation agree-ment in which an existing building wasmade smoke-free for future residents. ■

Smoked OutState and federal courts have made it clear

that smoking is not a protected activity.



F ueling renter demand for no-smoking apartments is the 2006U.S. Surgeon General’s report,“The Health Consequences of InvoluntaryExposure to Tobacco Smoke,” whichwarns that there is no risk-free level ofexposure to secondhand smoke, and that“even small amounts of secondhandsmoke exposure can be harmful to people’s health.”

The report includes a discussion of thedangers of secondhand tobacco smoke inapartment housing and how the smoketravels from one apartment into others,and recommends that apartment ownersand community managers begin volun-tarily implementing no-smoking policies.

Community owners and managersmay receive resident complaints aboutsecondhand smoke that range fromwatery eyes and scratchy throats to suchsevere breathing difficulties that theirdoctors strongly advise moving. For some residents, secondhand smoke can be alife-or-death issue.

Dangerous HabitRecently, Richard Grelle of Arlington,

Texas, a resident of River Ridge Apart-ments, received a frantic call from his

handicapped wife telling him she washaving difficulty breathing. A new neigh-bor who smoked inside her apartmenthad moved in below the Grelles.

The smoke from the neighbor’s apart-ment had traveled through cracks, elec-trical and plumbing outlets and into theGrelles’ home. Grelle’s wife experienced asevere respiratory reaction; by the timethe ambulance arrived, she had passedout on the bathroom floor in respiratoryarrest. If she had not managed to call herhusband at work before passing out, shelikely would have died.

Many community owners and man-agers are unaware of the extent to whichsecondhand smoke spreads throughapartment buildings. Secondhand smokeseeps through electrical outlets, pipes,light fixtures, ceiling crawl spaces anddoorways into all areas of a building thathouse smokers.

Need to VentAccording to James Repace, a biophysi-

cist and visiting professor at Tufts Univer-sity School of Medicine, research on airquality in apartment buildings revealedthat 60 percent of the air residentsbreathe is shared by all apartments.

Ventilation technology and air cleanersare often touted as solutions, but the latest ventilation techniques and aircleaners cannot stop all smoke fromspreading. Engineers from the Center forEnergy and Environment (CEE), in a2004 study, unsuccessfully tried to elimi-nate secondhand smoke seepage in sixapartment buildings through a variety ofexpensive ventilation and air-sealingtreatments.

Almost one-third of the apartmenthomes they treated had no reduction incontaminants at all. The CEE studyfound that the leak sealing was only ofmarginal benefit if it was the sole methodof treatment for secondhand smoke seepage.

According to the American Society of Heating, Refrigeration and Air-Condi-tioning Engineers (ASHRAE), governingagency for all air filtration systems in theUnited States, “no engineering approach-es, including current and advanced dilution ventilation or air-cleaning tech-nologies, should be relied upon to controlhealth risks from ETS (environmentaltobacco smoke) exposure in spaces wheresmoking occurs.”

ASHRAE has acknowledged that sec-

Have Smoke Will Travel

Americans are finding that it’s not whether or not secondhand smoke is harmful, but rather how harmful.

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ondhand smoke can drift into neighboring apartments, andencourages elimination of smoking in the indoor environmentas the “optimal way to minimize ETS exposure.”

Enforcing a no-smoking policy has led to cost savings forsome apartment owners as they have been able to reduce dam-age to the apartment home.

Kennedy Restoration, a restoration maintenance company inPortland, Ore., recently developed a cost estimate for cleaning asmoker’s apartment. It identified the need to replace carpetingand vinyl appliances, as well as the possible replacement ofother flooring and sub-flooring, lighting fixtures, cabinets andceiling fans, and the use of special sealants to control odorsbefore painting. Kennedy estimated the cost of properly cleaninga two-bedroom, two-bath, smoked-in apartment at approxi-mately $15,000. ■

Unhealthy Facts

T here are more than 4,000 toxins and more than 50cancer-causing chemicals in tobacco smoke. Someof the better known carcinogens include:

•Acetone, an eyes, nose and throat irritant, which can cause liver and kidney damage;

•Cadmium, used in batteries, which can cause liverand kidney damage;

•Formaldehyde, a cause of nasal cancer, which candamage the lungs, skin and digestive system;

•Hydrogen cyanide, used in gas chambers, whichweakens the lungs and causes nausea, headachesand fatigue; and

•Carbon monoxide, dangerous to heart and musclefunction, which causes breathing problems.

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UNITS - Oklahoma Magazine...Reprinted with permission from the December 2007 issue of UNITS magazine, published by the National Apartment Association (NAA). For more information about