August 9, 2005
SMOKING AND SECTION 8 HOUSING
By: Joseph Holstead, Research Analyst
You asked if federal and state law prohibit smoking in Section 8 Housing and if a landlord may prohibit smoking for Section 8 tenants.
The Office of Legislative Research is not authorized to give legal opinions and this report should not be considered one.
We did not find any federal or state law prohibiting smoking in Section 8 housing. However, it appears nothing in the law prohibits landlords from banning smoking in Section 8 housing. Section 8 is the federal Department of Housing and Urban Development (HUD) rent subsidy program, which is generally administered by public housing authorities and, in Connecticut, also by the Department of Social Services.
By law, a landlord may impose lease terms beyond just paying rent. For example, they may prohibit pets or smoking, or require that they be allowed reasonable inspection of the leased premises (CGS § 47a-3). Incidentally, Connecticut law prohibits smoking in any building owned and operated, or leased and operated, by the state or any of its political subdivisions, but excepts public housing projects (CGS § 19a-342).
Banning smoking for new tenants who move into Section 8 housing is permissible in Connecticut and the other 49 states, according to a May 2005 report by Attorney Susan Schoenmarklin, completed for the Center for Social Gerontology, Inc.'s Smoke Free Environment's Law Project, a non-profit research, training, and social policy organization that promotes the individual autonomy of older persons. The report entitled, “Analysis of the Authority of Housing Authorities and Section 8 Multiunit Housing Owners to Adopt Smoke-Free Policies in Their Residential Units,” analyzes several areas of the law, such as the Americans with Disabilities Act and state's human rights law, to come to its conclusion. It notes that current tenants who smoke would have to be grand-fathered in (allowed to smoke until their leases expire) if a no smoking rule was instituted.
Citing a 2003 letter from the chief counsel of HUD's Detroit field office, the report states, “ 'project owners may devise reasonable no smoking rules at their properties that express legitimate concerns for the safety of the residents and condition of individual units and buildings as a whole.' The letter goes on to state that if the change is made in house rules HUD approval is not required. However, if the owner wants to change the lease to incorporate a no-smoking provision, “HUD approval is required to the extent that the owner is bound to utilize HUD's model lease.' ”
We have attached a copy of the report or click the following link: http://www.tcsg.org/sfelp/public_housing24E577.pdf.