In July of this year, Buffalo Municipal Housing will begin a soft implementation of its new smoke-free policy. This policy will not allow employees or residents of BMHA buildings to smoke in their apartments or on BMHA property. Smoking will, however, be permitted 25 feet away from buildings. Renowned constitutional attorney Barry Covert spoke to WGRZ about how this ban interacts with the residents’ 4th Amendment rights. The full story is available on the WGRZ website.
Challenges to smoking ban
WGRZ reports that the Department of Housing and Urban Development (HUD) is expected to mandate smoke-free public housing throughout the country. Buffalo Municipal Housing will roll out its own version on July 1 and, barring complications, the rule will be fully enforced in early 2017. HUD has proposed that every Public Housing Authority, such as BMHA, “implement a policy prohibiting lit tobacco products in all living units, indoor common areas in public housing, and in administrative office buildings. The smoke-free policy must also extend to all outdoor areas up to 25 feet from the housing and administrative office buildings.” Many tenants who smoke are not pleased by the new rule, but BMHA maintains that the apartments are subsidized by the federal government, so they are subject to rules and mandates on public housing authorities. According to WGRZ, there will be seminars and programs to help BMHA residents quit smoking.
WGRZ reached out to Barry Covert to see if tenants’ rights were being violated. He said, “Well, there’s luxury condominiums in New York City that have banned smoking and I haven’t seen any challenges as to that. There’s going to be definitely a balancing act here between the 4th Amendment rights to do what you want in your home, in your castle, which, in these individuals’ cases, is their apartment.” When asked if he had seen a successful challenge, Mr. Covert responded, “I’ve never seen a successful challenge, but this is a different form of a challenge to the smoking ban because it is telling people in their home, in their castle, that they are not allowed to do something that is perfectly lawful everywhere else.”
Smoking in apartments could pose health risk
According to WGRZ, the smoke-free policy is being implemented because it is considered healthy. It is an attempt to prevent secondhand smoke, which poses a health risk to adults and children, from traveling between units and harming residents. Mr. Covert told WGRZ that “it has been deemed by the court that the public good outweighs the inconvenience to that individual. It is their own apartment, so this is a different question that they’re going to be able to bring forward as opposed to an office building.”
BMHA is still determining how to enforce the rule and what the penalties should be. They are considering that a first offense be punished with a warning, a second with a $50 fine, and a third with eviction.
About Barry N. Covert
Mr. Covert, a senior partner in Lipsitz Green Scime Cambria’s Criminal Defense Trials and Appeals Practice Area, is known for his aggressive representation of clients in the areas of New York State and federal criminal trials and appeals; driving while intoxicated; constitutional law, including First Amendment, civil rights actions, and federal False Claims Act; defending against allegations of scientific misconduct and fraud, research misconduct and fraud, plagiarism, and fabrication of evidence; and professional licensing defense. Mr. Covert frequently provides legal analysis for WGRZ and other media outlets.