Establishing a Non-Smoking Environment in Your Community: What You Should Know

1. Establishing a Non-Smoking Environment in Your Community: What You Should Know Presented by AAHSA January 31, 2007

2. 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, AAHSA 2

3. The Decision to Make a Building Non-Smoking - Operational Issues Candi Atkins, CPM® , ARM® Candi Atkins Consulting Las Vegas, NV candiatkinsconsulting.com 3

4. 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

5. 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

6. 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

7. How Long is a “Safe” Time to Make the Change? • Resident profile • Employee profile • Benefit to doing it slowly – example • Commitment to decision 7

8. 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

9. RATIONALE FOR PROHIBITING SMOKING Danger of fire Each year residents are killed in apartment fires caused by smokers Results in serious property damage Displacement of elderly residents Smoke damage to apartments Cost to repair unit of smoker can be twice as high due to nicotine damage to walls, ceiling, appliances Health concerns of second-hand smoke Requirement to provide reasonable accommodation to disabled residents with breathing impairments Fire and liability insurance Some facilities report decrease in cost of insurance 9

10. VARIOUS OPTIONS FOR LIMITING AND PROHIBITING SMOKING IN YOUR FACILITY Limiting Smoking -- Prohibiting smoking in public and common areas Grandfathering 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. EXAMPLE OF HOUSING RULE Complete 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

17. EXAMPLE OF HOUSING RULE Smoke 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

18. 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

19. 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

20. 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

21. 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

22. NON-SMOKING INFORMATIONWEB SITE RESOURCES • www.mismokefreeapartment.org • www.tcsg.org Smoke-Free Environments Law Project The Center for Social Gerontology, Inc. • www.no-smoke.org Americans for Non-Smokers Rights • www.smokefreeapartments.org A registry of smoke-free apartment homes in California • www.ASH.org Action on Smoking and Health • www.ansrmn.org Association for Non-smokers—Minnesota • www.stateoftheair.org Reports of the American Lung Association • www.tobacco.org Information about tobacco • http://www.aahsa.org/advocacy/housing/operations/fact_sheets/default.asp Click on Smoke-free housing title 22

23. Brewster Place Retirement Community Tom Akins VP Development and Planning Topeka, Kansas 23

24. 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

25. 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

26. Wellness is Our Goal • Wellness Initiative • Intellectual • Social • Spiritual • Physical • Activities Highlights Campaign 26

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28. Activities Highlights Campaign • Drives our marketing efforts • Creates an image • Facilitates our programming 28

29. 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

30. The Facts It seems almost sublimely ridiculous to remember back to the days when the tobacco industry argued forcefully that smoking was not harmful. 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

31. 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

32. 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

33. The Policy -- Purpose Brewster 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

34. 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

35. The Policy • 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. • 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. • 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

36. 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

37. 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

38. Counted down last two months • Posters • Candy • Buddy system • Payroll stuffers • Vendor billings 38

39. Challenges Enforcement Visitors/Family members Signage Vendors Applications Employment Residents Marketing 39

40. Lutheran Homes of Oshkosh Alan “Corky” Abraham Vice President of Housing Oshkosh, WI 40

41. 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

42. 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

43. 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

44. Resolution Lutheran 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

45. 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

46. 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

47. 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

48. 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

49. 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

50. 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