Yada, yada yada: 2018 Fair Housing update

Jennifer Aronson-Jovcevski, BridgeTower Media Newswires

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 (PHAs) 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 homes 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 PHAs 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 PHAs 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 some states move toward 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.

In states that legalize 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!"

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 ads to users whom Facebook categorizes as interested in "Latin America," "Southeast Asia" "China," "Honduras," "Somalia," the "Hispanic National Bar Association" or "Mundo Hispanico"; and

- 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.

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.

Published: Thu, Aug 30, 2018