RD Issues Updated Guidance on Optional Smoke-Free Housing Policies
On October 13, 2021, Rural published an Unnumbered Letter (UL) titled “Multifamily Housing – Optional Smoke-Free Housing Policy”. This UL was issued to provide continued guidance on implementing an optional smoke-free policy at Multi-Family RD Housing. This unnumbered letter replaces UL issued 11/21/2012 on Smoke-Free housing (which replaced the Smoke-Free UL from 12/29/10).
Changes from USDA/RD’s Last UL Issued 11/21/12
It appears that this latest UL was amended to provide clarity to borrowers as to whether the guidelines stipulated when creating a smoke-free policy are optional or required.
- The previous UL issued on 11/21/12 provided guidelines for which the UL stated SHOULD be included in a smoke-free policy.
- This updated UL on 10/13/21, states that certain guidelines MUST be included when a borrower chooses to develop.
“An eligible smoke-free housing policy must:
- Be in accordance with State and local laws.
- Address smoking in a tenant’s unit, common areas, playground areas, areas near any exterior window or door, and areas outside a tenant’s unit.
- Designate specific smoking areas and identify these areas with clear signage unless the MFH borrower establishes a totally smoke-free policy.
- Inform applicants at the time of application that the building is smoke-free”
The current UL also amended what provisions are prohibited are when developing a smoke-free policy.
One of the provisions from the 11/21/12 UL prohibited borrowers from denying “ occupancy to any individual who smokes or to any individual who does not smoke who is otherwise eligible for admission” However, this provision was removed from the 10/13/21 UL.
Furthermore, the updated UL states that borrowers must not establish separate waiting lists for smoking versus non-smoking applicants.
“Smoke-free housing policies must not:
- Require/request that applicants or tenants disclose whether they or any member of their household smoke, either at application or recertification
- Establish separate waiting lists for smoking versus non-smoking applicants
- Require existing tenants who are smokers to move out of the property or to transfer ”from their unit to another unit, unless at tenant request. Such tenants could remain in their units but would be required to adhere to the smoke-free policies.”
Grandfathering & Non-smoking wings, buildings, floors, or units:
There were no notable changes to the guidance provided on grandfathering or to the guidance regarding non-smoking wings, buildings, floors, or units.
- “Grandfathering: MFH borrowers have the option to create an exception for current tenants, or “grandfather” allowing them to stay under the previous policy. Such exceptions must be clearly defined in the Occupancy Rules and enforced uniformly.
- “Non-smoking wings, buildings, floors, or units: MFH borrowers may establish smoke-free wings, buildings, floors, and/or units at their property. When a unit becomes available, regardless of location and smoking status, it must be offered to the first eligible household on the waiting list. The applicant should be notified of the unit’s smoking policy so the applicant can make the choice to accept the unit or wait for another. Waiting lists must be maintained according to existing procedures found in 7 CFR 3560.154 (f).”
Reminders When Implementing a Smoke-Free Housing Policy
MFH borrowers who choose to implement a smoke-free housing policy must update their Management Plans and Occupancy Rules
- New admissions. MFH borrowers are required to attach the Occupancy Rules to leases.
- Existing tenants. MFH borrowers must notify existing tenants of the modifications to the Occupancy Rules at least 30 days in advance of implementation.