NYC Smokers Group Sues Over Ban In Public Housing

NEW YORK, NY — These smokers won't let the feds snuff their butts without a fight. A Brooklyn-based smokers-rights group sued the U.S. Department of Housing and Urban Development on Monday in a last-minute attempt to block a ban on smoking in public housing.

The agency, known as HUD, finalized a rule in 2016 aimed at barring public housing tenants from lighting up in their apartments, in common areas or within 25 feet of buildings. Public housing agencies across the country have to implement their own "smoke-free" policies by July 31.

The lawsuit NYC Citizens Lobbying Against Smoker Harassment, or CLASH, filed in Washington, D.C. federal court argues the rule violates tenants' constitutional rights and wrongly forces local agencies to enforce a federal policy.

"Government can’t come in, whether it’s smoking or any other legal behavior, to tell you, 'You can’t do that,'"said CLASH founder Audrey Silk of Marine Park, Brooklyn.

The 55-page complaint asks the federal court to vacate HUD's rule or modify it to allow smoking in private dwellings.

HUD spokesman Brian Sullivan declined to comment on the pending case, but said the department is "moving ahead with fully implementing" the rule.

The rule, published in December 2016, requires the New York City Housing Authority and hundreds of similar agencies nationwide to establish policies banning smoking in or around their residential and administrative buildings.

HUD has argued the shift will benefit tenants' health and cut smoking-related damage and maintenance costs. The move is expected to save housing agencies $43 million in renovations for "smoking-permitted units" and $16 million in losses from smoking-related fires, according to a 2016 HUD news release.

But CLASH's complaint argues the rule wrongly bans tenants from engaging in a legal activity in their own homes "under threat of eviction."

The group, which has more than 2,000 members, brought the suit against HUD and Secretary Ben Carson along with six smokers living in public housing in New York, Tennessee, New Mexico and Illinois.

The policy also forces residents to go out into rough weather and potentially dangerous environments just to light up, Silk said.

"I know what the public housing is like around this city. You’re putting your life in your hands going out for no good reason," she said.

The ban also violates the "anticommandeering doctrine," which holds that states can't be forced to enforce federal regulations, the suit argues. HUD's rule goes against that idea by issuing a "direct command" to public housing agencies to "implement and enforce" a federal regulatory program, according to the complaint.

The suit comes just over a week before the rule takes hold across the country. NYCHA has briefed tenant leaders on the smoke-free policy and engaged more than 21,000 residents through various outreach efforts since last year, the housing authority said.

"As a public housing landlord, we are required to implement a smoke-free policy but as New Yorkers, we support programs city-wide that reduce exposure to secondhand smoke and expand access to resources for smokers who want to quit," NYCHA spokesman Chester Soria said in a statement.

CLASH started considering a lawsuit over the rule after it was first proposed, Silk said, but it took time to do research, develop legal arguments and consider the cost of suing.

"We think we have an extremely strong case on a number of grounds," Silk said.

HUD has noted that more than 600 public housing entities had already adopted smoke-free policies when it announced its own rule close to two years ago.

"Not only are there real substantiated public health concerns about smoking in a publicly subsidized environment like public housing, but the costs associated with smoking justify this rule," Sullivan said.

(Lead image: Photo from Shutterstock)