Remember the old Seinfeld episode when Kramer went on a smoking binge for 72 hours and even set up a “smoking lounge” for “pipe night” in his apartment?  You know, the one where Jerry told Kramer that the smoking was starting to negatively impact his appearance, so Kramer decided he wanted to sue the tobacco companies?  Look away, I’m hideous!  Gone are the days of lighting up in an apartment, especially for those individuals who live in public housing.  In 2009, U.S. Office of Housing and Urban Development (HUD) released guidance that encouraged public housing agencies (PHA’s) and property owners/agents of subsidized multifamily housing to implement smoke-free policies.  Aside from the overwhelming medical data about the dangers of secondhand smoke, HUD reported that secondhand smoke in multifamily house resulted in higher property maintenance costs, an increase in unit turnover and increased the risk of fires.  Fast forward to 2016 when HUD finalized a rule (24 CFR Parts 965 and 966) requiring all PHA’s to implement a smoke-free policy by July 31, 2018 prohibiting the use of certain tobacco products in all public housing living units, indoor common areas in public housing and in PHA administrative offices.

Effective July 31, 2018, HUD prohibits smoking cigarettes, cigars and pipes in PHA apartments, public areas or within 25 feet of public housing buildings.  The 25-foot perimeter is necessary to prevent secondhand smoke from entering open windows in lower level units and prevent secondhand smoke exposure to individuals on lower floor balconies or porches.  Water pipes and hookahs are also a no-no.  At this time, the smoking ban does not apply to electronic cigarettes (“e-cigarettes”).  This ban does not yet affect the Section 8 programs or any other affordable housing program.  Oh, the humanity!

In response to HUD’s new rule, many [non-PHA] landlords are jumping on the smoke-free policy bandwagon and implementing strict “No Smoking” policies into their leases, thus making a tenant’s failure to comply with a smoke-free policy a default under the lease and grounds for eviction.  Is it crazy?  Or so sane that it just blew your mind?  However, the “one strike you’re out” policy does not apply to public housing residents—HUD regulations allow residents up to three violations of the smoke-free policy prior to commencing a summary proceeding.  HUD encourages PHA’s to assist residents with locating smoking cessation resources rather than jumping to an eviction.  In other words, termination of assistance for a single incident of smoking, in violation of the smoke-free policy, is not grounds for eviction.  HUD encourages a graduated enforcement approach to address violations of the smoke-free policy that includes escalating warnings with documentation to the tenant file and leaves specific graduated enforcement procedures up to state and local governments.

As New York moves towards legalizing adult-use of marijuana, owners and landlords of federally assisted housing should know that HUD requires owners of federally assisted multifamily properties to deny admission to any household with a member who the owner determines is, at the time of application for admission, illegally using a controlled substance as defined by the Controlled Substances Act (CSA), 21 U.S.C. Section 801 et. seq.  These pretzels are making me thirsty!  The CSA categorizes marijuana as a Schedule 1 substance and therefore the manufacture, distribution, or possession of marijuana is a federal criminal offense.  Because the CSA prohibits all forms of marijuana use, the use of “medical marijuana” is illegal under federal law even if it is permitted under state law.  See, Quality Housing and Work Responsibility Act of 1996 (QHWRA), P.L. 105-276 (Oct. 21, 1998), 42 U.S.C. 13662; see also, U.S. Dep’t of Housing and Urban Dev., Memorandum Regarding the Use of Marijuana in Multifamily Assisted Properties (Dec. 29, 2014).  The QHWRA provides owners with the discretion to determine, on a case by case basis, when it is appropriate to terminate a tenant’s lease for violation of the CSA.  This has led many [non-PHA and PHA] landlords to specifically identify and prohibit recreational adult marijuana use in their smoke-free lease policies in anticipation of the forthcoming legalization.  If and when New York legalizes adult marijuana use, regardless of the purpose for which it is legalized under state law, the use of marijuana in any form is illegal under the CSA and therefore is an illegal controlled substance under Section 577 of QHWRA so it will not be allowed in PHA housing.  You better believe it, buddy!

Before you shift to soup mode, there’s more!  Protected Classes include Source of Income, Immigration Status and Citizenship

What else is new with Fair Housing?  Well, unfortunately, not every prospective tenant can be as well off as H.E. Pennypacker (the wealthy industrialist, philanthropist and bicyclist).  On June 21, 2018, the Erie County Legislature voted 9-2 to approve a Fair Housing Law to make it illegal for landlords or property owners to discriminate against prospective tenants who receive government subsidies like vouchers or who are not U.S. citizens.  This law expands existing state and federal anti-discrimination housing laws to include “source of income” and “immigration and citizen status” as protected classes.

According to the Erie County Fair Housing Law, as amended Local Law No. 4 at Section 1, “[i]t is the intent of the Legislature to provide for fair housing through the County of Erie and prohibit discrimination of any kind in the sale, rental or leasing of housing to any person.”  As set forth in Section 3 of the Erie County Fair Housing Law, the legislature prohibits discrimination against any tenant or prospective tenant on the basis of “…race, color, religion, sex, age, marital status, disability, national origin, source of income, sexual orientation, gender identity, military status, familial status or immigration and citizenship status.” The remainder of the law remained unchanged, except to exempt from protection any “…religious or religious organizations limiting the sale, rental or occupancy of housing accommodations which it owns or operates, to persons of the same religion or giving preference to such persons, unless membership in such religion is restricted on account of race, color, religion, sex, age, marital status, disability, national origin, source of income, sexual orientation, gender identity, military status, familial status or immigration and citizenship status.

The change in Erie County’s law is significant for landlords and property owners across the entire state of New York.  On April 26, 2018, Governor Andrew Cuomo proposed a bill to prohibit landlords and property owners from refusing housing to a person based on that individual’s source of income.  The bill also would prohibit related advertising limiting who can come to the Festivus table (no more “will not rent to Section 8” advertising).  The bill was first introduced by Assemblyman Walter Mosley, D-Brooklyn (Bill A10077/S08606) before Gov. Cuomo introduced his own bill at the end of May.  Stay tuned, George—if this bill makes it through, a statewide anti-discrimination shift to protect tenants (and prospective tenants) on the basis of source of income could take effect as early as Spring 2019.

But what about the Fair Housing Act, Jerry?!

On May 18, 2018, Gov. Cuomo announced New York State was the first state to join a lawsuit, In National Fair Housing Alliance et al v. U.S. Dep’t of Housing and Urban Dev., which seeks to reverse HUD’s suspension of the implementation of the Affirmatively Furthering Fair Housing Rule, a set of federal regulations implemented under the Obama administration that encourage grantees of federal funding to conduct an Assessment of Fair Housing (AFH) planning process.  The AFH informs efforts to address housing discrimination, encourage residential integration, and remove barriers to opportunity. The rule also requires the results of that analysis to be submitted to HUD, with actions identified to remove barriers to fair housing, prior to receiving federal housing funds.  In January, under the Trump administration, HUD put the kibosh on the implementation of a requirement that local governments conduct an AFH thus resulting in over 40 communities in New York and over 1,000 communities nationwide left in a standstill without federal funds to resolve their neighborhood fair housing disparities.  It’s outrageous, egregious, preposterous!

But before you start calling HUD the Soup Nazi, HUD recently filed a housing discrimination complaint against Facebook for its alleged ongoing violations of the Fair Housing Act.  Happy, Pappy?  According to its Complaint dated August 13, 2018, HUD alleges that Facebook “unlawfully discriminates by enabling advertisers to restrict which Facebook users receive housing-related ads based on race, color, religion, sex, familial status, national origin and disability.”  The Complaint cites the following non-exhaustive list of ways in which Facebook’s ad targeting tools enable advertisers of housing and housing-related services to discriminate including, but not limited to:

  • Facebook enables advertisers to discriminate based on sex by showing ads only to men or only to women.
  • Facebook enables advertisers to discriminate based on disability by not showing ads to users whom Facebook categorizes as interested in “assistance dog,” “mobility scooter,” “accessibility” or “deaf culture.”
  • Facebook enables advertisers to discriminate based on familial status by not showing ads to users whom Facebook categorizes as interested in “child care” or “parenting” or by showing ads only to users with children above a specific age.
  • Facebook enables advertisers to discriminate based on religion by showing ads only to users whom Facebook categorizes as interested in the “Christian Church,” “Jesus” “Christ” or the “Bible.”
  • Facebook enables advertisers to discriminate based on national origin by not showing adds to users whom Facebook categorizes as interested in “Latin America,” “Southeast Asia” “China,” “Honduras,” “Somalia,” the “Hispanic National Bar Association” or “Mundo Hispanico.”
  • Facebook enables advertisers to discriminate based on race and color by drawing a red line around majority-minority zip codes and not showing ads to users who live in those zip codes.

…To name a few (serenity now!).  For all the landlords out there, here is your courtesy reminder to review your online advertisements to determine if your targeting follows a pattern like the one above.  Any targeting of advertisement that purposefully excludes classes of persons protected from discrimination under federal, state or local law should be discontinued immediately.  Giddyup, Jerry!

Jennifer Aronson -Jovcevski is an associate and a member of Boylan Code’s Real Estate Practice Group. She concentrates her practice in commercial and residential real estate, commercial lending, Fair Housing and Charter School law.

To read the published article in the Daily Record, click here.