York, PA - Shelley Peterson knew what she was up against. The director of housing management for the York Housing Authority was trying to explain to nearly 70 rowdy residents why they would have to stop smoking in their apartments, but she kept getting interrupted.
One man pointed his finger at her and demanded to know if she had heard of a government by the people, for the people.
Another clutched a copy of the Constitution.
A third predicted a second civil war if any more restrictions were placed upon smokers.
It sounds like a basic right -- the ability to do what you want in your own living room. But when it comes to smoking in a rental property, legal experts say it's a privilege, not a right.
The York Housing Authority's proposed ban, which was discussed at Peterson's meeting last month, would prohibit the residents of its 1,068 units from smoking inside their apartments and within 25 feet of windows and entrances. Barring a no vote by the authority's board, the policy would take effect in October -- although residents can sign an exemption that would let them keep smoking until their leases end.
It's an abrupt shift in policy, but legally, the authority could have banned smoking mid-lease, said David Schaumann, the authority's solicitor.
Regardless, there is no Constitutional right to smoke, Schaumann said.
"Look in various statutes...that's where you find your laws," he said. "If you can't find something -- it isn't in there -- then the government can prohibit it."
York County joins others with similar bans
The smoking ban would be a new policy in York County, but it's hardly breaking ground. Housing authorities across the country have been enacting smoking bans for the last several years with the encouragement of the U.S. Department of Housing and Urban Development.
In 2012, housing authorities in Minneapolis and Annapolis, Md. joined more than 30 California municipalities that have already banned smoking in public housing units, according to published reports. In 2011, Boston announced the largest ban in the country, which will prohibit 25,000 public housing tenants from smoking in their units as of September. Portsmouth, Va. has also enacted a ban.
Recently, Hawaii legislators voted for a statewide ban on smoking in all public housing, although the governor has since pledged to veto it, according to a release from his office.
Many smoking bans in public housing have been successful because they're really no different than restrictions to any other rental unit, said Bruce Ledewitz, a law professor at Duquesne University. Housing authorities are bound by whatever statute created them, but often those statutes have broad language, he said.
Someone might have a case if the smoking ban were imposed mid-lease, but many leases have savings clauses that allow changes to be made that affect welfare, health and safety of the housing occupants, Ledewitz said.
"There's not even really a privacy issue," he said. "Because of the danger smoking poses...the potential for fire."
There are instances where a housing authority could go too far, however. Banning religious symbols or political signs inside units would infringe upon Constitutional rights, Ledewitz said.
"There's all sorts of stuff housing authorities have tried to ban," he said. "But almost always there are independent Constitutional rights."
Scott Harper, a West York attorney and member of the Libertarian Party, agreed that the ban would be considered legal. From a Libertarian perspective, he said, you should have the right to do what you like in your own home, regardless of who is paying the rent, but that is not how the law has been interpreted.
When you ask the government for help -- in the case of public housing, for reduced rent -- current interpretations of the law say you can put conditions on that help, Harper said.
"If it's controlling whether you can have a dog or a cat or a campfire in your house, it's one of those things," he said. "When you ask the government to step in and do everything for you, this is what it leads to. Loss of liberty."
Banning smoking is a growing trend, not just in housing, Harper said. Bans on smoking in private bars with a private clientele have also been upheld, he said.
Change in the law? Not likely
While the bans are protected under present law, there are potential legal issues that could be raised if a policy was blatantly discriminatory, Ledewitz said. When regulations have a disproportionate affect on a protected group, they can be struck down, he said.
"If I knew a disproportionate number of black residents smoke and I'd like to reduce the number of black residents...I would just (enact a ban)," he said. "But you have to prove it was for the purpose of having an affect on that population, which (in York's case) is not true."
Of course, that's little solace for the smokers affected by the ban, Schaumann said. Angry residents could always lobby at the state or federal level for a change.
Just as the federal government enacted a patient's bill of rights, a smoker's bill of rights could be passed at the state or federal level with enough support, he said.
"This has been fully vetted," Schaumann said. "You can debate whether somebody should be able to smoke and whether the government is going too far...but their redress is in the legislature."
Pennsylvania legislators have been willing to take action on smoking issues but have intentionally shied away from residential smoking, said state Rep. Eugene DePasquale, D-West Manchester Township.
Several years ago, legislators increased restrictions on smokers in the workplace and in public spaces -- including college academic buildings -- but stopped short of banning smoking in college dorms, he said.
Dorms were viewed as residential, and that was a line many lawmakers were not willing to cross, DePasquale said.
"I would be stunned if the Legislature had an interest in taking this issue up either way," he said of the housing authority bans. "It's viewed as a county, authority-level decision."

The policy
--- Effective Oct. 1, all residents, employees and guests will be prohibited from smoking inside public housing units across York County. Smoking will also be banned within 25 feet of entrances, windows and public sidewalks.
--- Temporary exemptions will be granted for current residents who wish to keep smoking until their next lease renewal. The exemption applies only to the resident who signs it, not their guests or other residents who visit the exempted resident's unit.
--- Any deviation from the smoke-free policy by the tenant, member of their household or guest will be considered a lease violation. Three violations will result in eviction.
--- Smokeless tobacco will still be permitted, but electronic cigarettes will be banned.