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Public Health Advocacy Institute

at Northeastern University School of Law

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Boston, MA 02115

tobacco@tobaccopolicycenter.org

You are here: Home > Tobacco Control > Tobacco Litigation > Smoke-Free Public Housing

Smoke-Free Public Housing

NYC C.L.A.S.H., Inc. et al. v. Sec’y of U.S. Dep’t of Hous. & Urban Dev. & U.S. Dep’t of Hous. & Urban Dev., 1:18-cv-1711 (D.D.C. July 23, 2018)

On July 23, 2018, N.Y.C. Citizens Lobbying Against Smoker Harassment (“CLASH”) and six public housing residents sued the U.S. Department of Housing and Urban Development (“HUD”). Plaintiffs challenge the federal agency’s rule requiring public housing agencies (“PHAs”) to implement a tobacco use policy by July 30, 2018. PHA policies must prohibit use of combusted tobacco products (including waterpipes/hookah) in and within 25 feet of all public housing living units and common areas, and PHA administrative office buildings. Additionally, the rule allows a PHA to include e-cigarettes in its tobacco use policies.

Fourth Amendment Claims

Plaintiffs claim that the HUD rule violates the U.S. Constitution’s Fourth Amendment protections against unreasonable government search and seizure by allegedly authorizing PHA staff to enter a resident’s unit to investigate a potential policy violation. In addition, Plaintiffs argue that the HUD rule violates the “unconstitutional conditions doctrine,” whereby the government may not require a person to give up a constitutional right in exchange for a discretionary benefit. The plaintiffs claim they are being forced to relinquish their Fourth Amendment protections from unreasonable search and seizure in exchange for the discretionary government benefit of living in public housing.

Fifth Amendment & Fourteenth Amendment Claims

The Fifth and Fourteenth Amendments of the U.S. Constitution restrain government from depriving any person of their rights without “due process of law” (proper legal proceedings). Plaintiffs allege that the Fifth and Fourteenth Amendments protect an individual’s right to engage in lawful activities in their home, and the HUD rule violates this right by authorizing PHAs to prohibit residents from use of legal tobacco products within their individual PHA units.

Tenth Amendment Claims

The Tenth Amendment of the U.S. Constitution reserves to the 50 states and the people all powers not delegated to the federal government, or prohibited by the Constitution, and prohibits the federal government from commandeering states to administer or enforce a federal regulatory program. Plaintiffs allege that the HUD rule violates the Tenth Amendment by requiring state PHAs to implement and enforce a federal policy—namely, the HUD-mandated prohibition of tobacco use in state-run PHA housing and administrative buildings.

Commerce Clause Claims

The Commerce Clause of the U.S. Constitution limits federal government regulatory authority to activities affecting interstate commerce, i.e., transactions between states. Plaintiffs argue that the regulatory authority over public health is beyond the federal government’s scope to regulate interstate matters, and reserved to the states as a purely intrastate matter. In this case, Plaintiffs claim that HUD’s rule prohibiting tobacco use within a state PHA has no discernable relationship to interstate commerce, thus, regulatory authority over PHAs falls to the states.

Administrative Procedure Act (“APA”) Claims

The APA prohibits federal agencies from adopting rules that exceed their statutory authority, or rulemaking in an “arbitrary and capricious” manner, such as basing decisions on irrelevant factors. Plaintiffs claim that public health and safety regulations fall within the exclusive domain of the states, thus, HUD’s rule prohibiting tobacco use at PHAs for the benefit of public welfare, exceeds the federal agency’s statutory authority in violation of the APA. Plaintiffs further claim that HUD based its rule on irrelevant criteria, including unsupported scientific principles (e.g., smoking in one unit could affect the health of the resident in the adjacent unit). Thus, Plaintiffs allege, the rule is arbitrary and capricious in violation of the APA.  

Relief Sought

Plaintiffs request that the court vacate the HUD rule, or in the alternative, modify the rule so as to remove the prohibition on the use of tobacco products in individual PHA units.

HUD Response and Subsequent Motions

In its October 9, 2018 response, HUD argues that CLASH does not have “standing” (i.e., is not an eligible party) to sue HUD for its rule Instituting Smoke-Free Public Housing. HUD further argues Plaintiffs have not asserted a right that the court is able to remedy. That is, HUD argues that Plaintiffs have not made any viable legal claims, and accordingly, HUD need not respond to Plaintiffs’ specific claims. To the extent the court finds Plaintiffs have asserted a viable argument requiring Defendant’s response, HUD asserts the rule does not violate any law as asserted by Plaintiffs.

On January 9, 2019, Kirk Becker, a private citizen who is a smoker and who lives in affected public housing in Austin, Texas filed a motion to intervene in this case. Like Plaintiffs, Mr. Becker argued the rule was arbitrary and capricious in violation of the APA, but he did not raise other arguments. Mr. Becker disagreed with the relief sought by Plaintiffs, and instead asked for PHA complexes to offer separate areas with smoking and non-smoking units. Both parties to the case opposed the intervention and on June 3, 2019, the court denied Mr. Becker’s motion to intervene. Mr. Becker may appeal the court’s decision.

On May 3, 2019, Plaintiffs filed a motion for Summary Judgement seeking an immediate court ruling in favor of their claims. To date, HUD has not filed its response to Plaintiffs’ motion and the court has not decided on the motion.  The Center will update this summary with subsequent actions and the District Court’s decision, once filed.

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