A. J. Johnson Consulting Services, Inc.

Every owner and manager of a housing development understands (or should understand) that disabled applicants and residents have the right to request that properties be modified (reasonable modifications) or that rules be changed or waived (reasonable accommodations) so that the disabled person has an equal opportunity to use and enjoy the housing. However, the law does not require that every request for an accommodation be granted. Requests may be denied if there is no need for the requested accommodation or if granting the request would impose an undue financial and administrative burden on the property or fundamentally alter how the property operates.

In order to demonstrate that an owner has violated fair housing law by failing to grant an accommodation request, an applicant or resident must prove that:

The request for a reasonable accommodation was made by or on behalf of an individual with a disability;
The community knew - or was aware of - the disability (owners may verify disabilities that are not obvious);
The request was necessary for the disabled individual to have an equal opportunity to enjoy the housing (i.e., there is an identifiable connection between the requested accommodation and the disability);
The request was reasonable (owners should remember that even when a request is determined to be "unreasonable," the community should engage in an interactive process that examines alternative accommodations that would meet the needs of the disabled person and that are reasonable); and
The community denied the request.

While owners often believe that any requested accommodation must be granted, this is not the case, as illustrated by a number of recent court cases. In this series of articles, I will examine court cases that have ruled against residents for requested accommodations relating to assistance animals, noise complaints, and smoking. This final article deals with the issue of whether a community has to ban neighbors from smoking in their units to accommodate another resident’s asthma.

Taccino v. Forest City Residential Management, West Virginia, June 2019

Facts of the Case

A resident lived in a Section 8 building that banned smoking in common areas such as lobbies but permitted smoking in units.
The resident, who had asthma, complained to the property manager that cigarette smoke was drifting into his unit.
The property manager investigated the complaint but could not detect the smell of cigarette smoke in his unit or the hallways outside the unit.
The resident submitted a reasonable accommodation request along with medical verification of his asthma.
The request was approved and the community offered to relocate the resident to a different unit as a reasonable accommodation.
The property manager told the resident they could not guarantee that he would not be exposed to cigarette smoke since other residents were permitted to smoke in their units.
The resident sued the community.

Decision: The court ruled in favor of the community and the resident appealed

Appellate Decision: The Appeals Court also ruled in favor of the community.

Reasoning

The court ruled that the resident did not present any evidence that the community violated fair housing law.
Only accommodations that are "reasonable" are required under federal fair housing law.
In this case, the resident wanted a guarantee that he would never be exposed to cigarette smoke while in his unit.
Since smoking in the apartments is allowed, the community could not make this guarantee.
The resident argued that is certain circumstances, fair housing law requires landlords to modify their policies.
However, the court ruled that the requirement of reasonable accommodation does not entail an obligation to do everything humanly possible to accommodate a disabled resident - both the cost to the community and the benefit to the resident must be considered.
While the cost to the community would involve upsetting the expectations of the other residents, there was no proof that changing the policy would benefit the resident.

This case demonstrates that housing providers are not required to immediately grant all requests for accommodations. Once a housing provider is aware of an individual’s request for an accommodation, the provider has an opportunity to make a final decision, which necessarily includes the ability to conduct a meaningful review to determine whether the law requires the requested accommodation.

There is certainly an industry trend to smoke-free housing, which got a big boost in 2018 when HUD issued a final rule requiring all public housing agencies to go smoke-free. HUD’s final rule requires public housing authorities to implement smoke-free policies that ban the use of prohibited tobacco products in all public housing living units, indoor common areas in public housing, and in PHA administrative office buildings. Though the new rule applies only to public housing, HUD strongly encourages all multifamily housing owners and agents to implement smoke-free policies in all their properties. However, going smoke-free for non-public housing properties is not required under federal law.

Winning Reasonable Accommodation Cases - Smoking Complaints

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