A No-Smoking Policy Is Legal
A common question is whether implementing a property-wide no smoking policy is legal.
There is no doubt as to the answer. It is legal.
There Is No Constitutional Right to Smoke
No court has ever recognized smoking as a fundamental right, nor has any court ever found
smokers to be a protected class.
Right to Privacy
The rights to privacy protected by the Constitution only apply to marriage, family relationships and the rearing of children.
Anti-Discrimination Laws Do Not Protect Smoking
“No Smoking” policies fall under the same category as pet clauses, public nuisance or loud noises. Anti-discrimination laws, such as the Americans with Disabilities Act (“ADA”) and the Federal Fair Housing Act of 1988 are designed to prevent discrimination based on race, disability and certain other characteristics. Since smoking is a behavior, such policies can be implemented because they are against the act of smoking not the smoker.
Housing Subsidies or Public Funding Do Not Prohibit “No Smoking Policies”
Neither New Hampshire, nor the United States Department of Housing and Urban Development (“HUD”) prohibit property managers from implementing no smoking policies. In fact, property managers are encouraged to establish policies for the protection of the health of their tenants, which would include a no smoking policy.
Note: Property managers required to use the HUD model lease, should first contact their HUD
supervisor before implementing a no smoking policy.