Smoke out: Attorney is an advocate for smoke-free housing


By Sheila Pursglove
Legal News

The market for smoke-free housing is huge, according to attorney Jim Bergman from the Smoke-Free Environment Law Project (SFELP) in Ann Arbor, that provides information, consultation and advice for businesses, local government, and individuals on policies and practices to protect people from the harmful effects of environmental tobacco smoke (ETS).

Bergman, who spoke on, “Smoke-Free Multi-Use Housing: It’s Becoming the Norm in Washtenaw County, Michigan and the Nation” at the February 17 meeting of the Washtenaw County Bar Association Real Estate Law Section, cites statistics showing that about 80 percent of adults don’t smoke; over 90 percent of seniors don’t smoke; and that many smokers don’t want smoke in their homes.

“The marketplace is way behind demand, but ‘smoke-free’ is becoming more common as an amenity item in marketing by apartment owners and managers and online listings often add ‘smoke-free,’” he says.

When Bergman and his team began working on the smoke-free multi-unit housing issue in 2002, very few states were addressing this matter.

“Michigan became the leader in the nation working on this issue and has remained so,” he says. “We’re looked to by HUD and the federal Centers for Disease Control as a leading authority on this topic, and Michigan is among the leading states.  Other states that have moved very successfully on this include Maine, Minnesota, Colorado, Oregon, Washington and California.

“Today, there is smoke-free multi-unit housing virtually everywhere in Michigan.  However, the larger cities have by far the most such properties, including Ann Arbor, Detroit, Grand Rapids, Lansing, and Marquette in the Upper Peninsula.  Some regions, such as the Genesee County area, took a little longer than other parts of the state to have smoke-free housing, but now they also have a decent amount of such housing.”

A lawyer and advocate, in 1992 Bergman was the first executive director of STAT (Stop Teenage Addiction to Tobacco), a national advocacy organization based in Springfield, Mass. After moving to Ann Arbor in 1995, he and his wife, Penny Hommel, became co-directors of The Center for Social Gerontology, Inc. (TCSG) and Bergman started the National Center for Tobacco-Free Older Persons, and the Smoke-Free Environment Law Project.

In 2000, only two U.S. Public Housing Authorities, in two states, had smoke-free policies, and there were virtually no smoke-free apartments in the U.S. in private or public housing, Bergman notes.

“Most apartment owners and many HUD officials thought it was illegal to have a smoke-free policy, and many newspapers thought it was illegal to allow ads saying ‘no smoking’ or ‘SF,’ he says. “Also, most tenants didn’t realize they had some rights to smoke-free housing.”

Fast forward to 2014, and hundreds of thousands of units of market-rate housing across Michigan and the U.S. are smoke-free, including large, multi-state companies, moderate sized and small companies, and single-family home rentals; and tens of thousands of units of affordable housing across Michigan and the country are smoke-free, including apartment buildings owned by for-profit and non-profit entities, as well as local governments and tribes.

“The Sault Tribe was first Michigan tribe to establish smoke-free tribal housing,” Bergman says.

By November 2014, about 600 housing authorities in all 50 states were smoke-free; and more than 20 percent of about 3,100 PHAs; 73 Michigan public housing commissions had smoke-free policies, ranging from small to the largest; including 11 of 12 Michigan tribal PHAs. About 50 percent of Michigan PHAs are smoke-free and 92 percent of tribal PHAs are smoke-free.

Compare that to a decade earlier when only about 18 housing authorities in 10 states had smoke-free policies for some or all of their buildings; and no Michigan housing commission had a smoke-free policy.

In 2005, 84 public housing units, and 188 people, in Michigan were covered by a smoke-free policy; by 2012, that number had risen to 10,364 units and 23,215 people.

As of October 2011, Michigan Public Housing Commissions that had passed smoke-free housing policies included Detroit, Melvindale, Allen Park, Monroe, Eastpointe, Livonia, Northville, Plymouth, Dundee, Lansing, Grand Rapids, South Haven, and Hillsdale, among several others.

Studies show that anywhere from 5 to 60 percent of the air in apartment units seeps from other units, through light fixtures, wall electrical outlets, ceiling crawl spaces, and doorways, Bergman notes.

The smoke – as toxic as most automotive and industrial air pollutants – can’t be controlled by ventilation or air cleaning, and breathing in even a little secondhand smoke can be harmful and even life-threatening for many older persons, as well as younger persons with respiratory problems, and is a risk factor in asthma, lung cancer, ear infections and other chronic respiratory illnesses, such as bronchitis and pneumonia.

“While things have improved, children and the elderly are at greater risk, and low income persons are exposed at much higher rates,” Bergman says.

Bergman notes that smoke-free policies are legal in HUD public housing, HUD-subsidized and other affordable housing, as well as in market-rate housing – “In other words, in all housing,” he says.
“Neither federal nor state law prohibits an owner from making their apartment building totally smoke-free. Smokers are not a protected class under federal law, and the Michigan Attorney General has affirmed the right of apartment owners to have smoke-free policies.”

In addition, non-smokers with serious breathing disabilities or smoke allergies have legal protection under the Americans with Disabilities Act and the Fair Housing Act.

“Residents negatively impacted by secondhand smoke actually have the right to seek legal action against owners who do not make adequate provisions to protect them from second hand smoke,” Bergman explains. “Fair Housing Act complaints can be filed seeking a ‘reasonable accommodation,’ and a smoky environment may be a possible violation of warranty of habitability or peaceful enjoyment.”

Bergman points out that smoke free policies are also a boon to property owners and help contribute to a healthy bottom line. Smoking not only poses a hazard for fire, smoke and water damage – causing at least $36 million a year in damages in Michigan – it also causes cigarette burn damage and stench to carpets and counters, and leaves smoke residue on walls and curtains. It can cost anywhere from $500 to $8,000 more to clean, re-carpet and repaint an apartment in which a smoker lived than a non-smoker. In addition, insurance premiums may be lower with a smoke-free policy; and the rental and resale value of the property may increase.

Bergman notes that landlords have the same legal right to make their property smoke-free as they have to decline to rent to pet owners.

In his talk to the WCBA Real Estate Law section, Bergman also discussed medical marijuana.

“Both the SFELP and the Michigan Attorney General have done an analysis of whether multi-unit property owners can prohibit its use on their property – we both concluded yes,” he says. “We also recommend that landlords prohibit smoking of electronic cigarettes – or e-cigs – in their properties.”

According to Bergman, private and public multi-unit owners uniformly report that enforcement is not an issue and that residents consistently follow the no-smoking rule.

“Violators are most likely to be violators of other rules,” he says. “And while eviction is possible, it rarely, if ever, occurs.”

Smoking has dropped drastically over the past decade – in 2011, 76 percent of Michigan households were smoke-free. And Bergman reports there has been a significant reduction in calls to his organization – “Probably because there are now many multi-unit properties that are totally smoke-free,” he says. “I would hope, and actually expect, that 80 to 90 percent of multi-unit housing in Michigan will be totally smoke-free in the next decade – that would match the percentage of adults in the state who do not smoke.”

For additional information, including a list of smoke-free apartment listings, visit