1. Presented by AAHSA January 31, 2007
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
Robertson

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 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 INFORMATION WEB SITE RESOURCES
Smoke-Free Environments Law Project
The Center for Social Gerontology, Inc.
Americans for Non-Smokers Rights
A registry of smoke-free apartment homes in California
Action on Smoking and Health
Association for Non-smokers—Minnesota
Reports of the American Lung Association
Information about tobacco
Click on Smoke-free housing title 22
Robertson

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

24. The Congregational Home Topeka, 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
Robertson

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
Robertson

26. Wellness is Our Goal Wellness Initiative Intellectual Social Spiritual
Physical
Activities Highlights Campaign 26
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27. 27

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

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
Robertson

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
Robertson

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
Robertson

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
Robertson

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
Robertson

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
Robertson

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
Robertson

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
Robertson

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
Robertson

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: 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

51. Contact Information
Candi Atkins, President
Candi Atkins Consulting, Las Vegas, (702)
Kathelene Coughlin Williams, Partner The Law Firm of Williams & Edelstein, P.C., Norcross, GA  (770)
Tom Akins, Vice President, Development and Planning
Brewster Place Retirement Community
(785)
Alan “Corky” Abraham, Vice President, Housing
Lutheran Homes of Oshkosh, Inc., Oshkosh, WI
(920)
Cory Kallheim, Senior Attorney, AAHSA
(202) 51