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Making Accommodations for Nonsmokers and Smokers

Introduction

It is well understood that homeowners associations should enforce the governing documents of the association in a uniform and nondiscriminatory manner so as to avoid a possible defense of discriminatory enforcement, although the association has some good faith discretion concerning when and how to do so. See e.g. Beehan v. Lido Isle Community Association 70 Cal. App. 3d 858 (1977);  Deane Gardenhome Assn. v. Denktas 13 Cal. App 4th 394 (1993); Haley v. Casa Del Rey Homeowners Assn. 153 Cal. App. 4th  863 (2007).
However, in certain cases it is against California and federal law for the association to enforce the governing documents where necessary to meet the housing needs of the disabled. In fact, the Department of Housing and Urban Development reports that in 2008, forty-four percent (44%) of the complaints filed were based on disability discrimination in contrast to thirty-five percent (35%) based on race. Because of this growing liability, directors must be sensitive to the rights of homeowners with disabilities.
If an association has a restriction against smoking and a disabled resident requests an accommodation to smoke medical marijuana to alleviate pain from bone cancer, what is the association to do? Or, if the association has a policy that marijuana and tobacco smoke does not violate the nuisance clause in the declaration, and a neighboring owner with asthma demands that action be taken, must the board of directors take action? The accommodation demands of California and federal law may indeed put an association into a conflicted position as discuss below.


California Law Requiring Accommodation

California Government Code Sections 12955.3 and 12926 defines physical and mental disabilities. The persons so defined are entitled to accommodations in the enforcement of housing policies and practices such as the use restrictions in the covenants, conditions and restrictions and the association rules.

Section 12926 (i) –(k) provides:

(i) “Mental disability” includes, but is not limited to, all of the following:

  1. Having any mental or psychological disorder or condition, such as mental retardation, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. For purposes of this section:
    1. “Limits” shall be determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.
    2. A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult.
    3. “Major life activities” shall be broadly construed and shall include physical, mental, and social activities and working.
  2. (2) Any other mental or psychological disorder or condition not described in paragraph (1) that requires special education or related services.
  3. Having a record or history of a mental or psychological disorder or condition described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.
  4. Being regarded or treated by the employer or other entity covered by this part as having, or having had, any mental condition that makes achievement of a major life activity difficult.
  5. Being regarded or treated by the employer or other entity covered by this part as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability as described in paragraph (1) or (2).”Mental disability” does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.

(k) “Physical disability” includes, but is not limited to, all of the following:

  1. Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following:
    1. Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.
    2. Limits a major life activity.  For purposes of this section:
      1. “”Limits” shall be determined without regard to mitigating measures such as medications, assistive devices, prosthetics, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.
      2. A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult.
      3. “Major life activities” shall be broadly construed and includes physical, mental, and social activities and working.
  2. Any other health impairment not described in paragraph (1) that requires special education or related services.
  3. Having a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.
  4. Being regarded or treated by the employer or other entity covered by this part as having, or having had, any physical condition that makes achievement of a major life activity difficult.
  5. Being regarded or treated by the employer or other entity covered by this part as having, or having had, a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment that has no present disabling effect but may become a physical disability as described in paragraph (1) or (2).
  6. “Physical disability” does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.
  7. Notwithstanding subdivisions (i) and (k), if the definition of “disability” used in the Americans with Disabilities Act of 1990 (Public Law 101-336) would result in broader protection of the civil rights of individuals with a mental disability or physical disability, as defined in subdivision (i) or (k), or would include any medical condition not included within those definitions, then that broader protection or coverage shall be deemed incorporated by reference into, and shall prevail over conflicting provisions of, the definitions in subdivisions (i) and (k).

California Government Code Section 12927 (c) (1)  defines “discrimination” as including the refusal to make reasonable accommodations in rules, policies, practices, or services when these accommodations may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling.


Fair Housing Amendments Act of 1988

The federal Civil Rights Act of 1968, also known as the Fair Housing Act, bars discrimination in housing because of race, color, religion, sex or national origin. [42 U.S.C. §3601-3619.] More recently, the federal Fair Housing Amendments Act (FHAA) of 1988 was adopted by Congress to recognize disabilities as an additional category of prohibited discrimination in the sale or rental of housing and the furnishing of housing services. The Fair Housing Amendments Act and its implementing regulations also enhance administrative enforcement of the fair housing laws by the Department of Housing, the United States Attorney General, and private individuals. The Act makes it a crime to interfere with housing rights available to persons with handicaps. [42 U.S.C. Section 3631.] Condominium, cooperative and other shared housing is specifically identified in the implementing regulations as subject to the Fair Housing Amendments Act.
The Fair Housing Amendment Act of 1988 protects (1) individuals with a physical or mental impairment which substantially limits one or more of a person’s major life activities; (2) an individual with a record of such an impairment; or (3) an individual who is regarded as having such an impairment, whether or not the individual is in fact so impaired. [42 U.S.C. Section 3602(h); 24 C.F.R. §100.201.] The Act, therefore, protects persons with physiological disorders or conditions, cosmetic disfigurement, anatomical loss affecting a major body system, and mental or psychological disorders, such as retardation or emotional or mental illness.
The Fair Housing Amendment Act obviously also applies to individuals who are visually or hearing impaired or impaired in their mobility. The Act extends to less obviously protected individuals, such as those with epilepsy, cancer, heart disease, diabetes, HIV infection and alcoholism. [24 C.F.R. §100.201(a)(2).] The Act applies where any of these conditions substantially limits “any major life activity” such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning or working. [24 C.F.R. §100.201(b).]
It is unlawful to discriminate against any person in the provision of services or facilities in connection with a dwelling because of a handicap of a person or a person residing in or intending to reside in a dwelling after it is sold, or any person associated with that person. The privileges, services or facilities associated with a dwelling would include maintenance or repairs required by the common interest development under the declaration or the Davis-Stirling Act, access to the common area facilities, and participation in association activities.
The Act creates affirmative duties of housing providers to persons with disabilities, including the obligation to allow certain modifications of existing premises, and the duty to make reasonable accommodations in rules, policies, practices and services to accommodate the needs of the disabled. As under California law, the failure to perform these affirmative duties is an act of discrimination. [42 U.S.C. Section 3604(f)(3)(A), (B).] This means that the Board has an affirmative duty to not enforce the rules where necessary to accommodate mentally or physically disabled individuals.
A handicapped resident may make changes to the exterior elements of a building, including the public and common use areas of a building, as well as the residence interior. [24 C.F.R. §100.201.] The Act requires that a handicapped individual, at his own expense, be allowed to make reasonable modifications to enable him or her to make the property more accessible or useable. Examples of such modifications include the installation of fold-back hinges to enable a person in a wheelchair to go through a door, and the construction of a ramp to enable a person in a wheelchair to enter a dwelling unit, lounge, lobby, laundry room, recreational area or passageways among and between buildings.
A homeowners association may require reasonable assurance that such modifications will be done in a workmanlike manner, and that required building permits will be obtained. [24 C.F.R. §100.203(b).] However, the full extent to which an association’s architectural control authority can be exercised to control the aesthetics of such modifications is not yet well established in the law. The individual making modifications to public use or common areas may not be legally required to restore the property in the future. [Appendix I to Chapter I, Sub-Chapter A, to 24 C.F.R. §100.203(a).] These rights of modification under the federal Fair Housing Amendments Act are more liberal than those allowed under state law [California Civil Code §1360.] The federal law controls in the event of a conflict. Boards receiving architectural requests for modifications necessary for blind, visually handicapped, deaf or physically disabled residents therefore must consider not only the architectural modification rights of a resident under the Davis-Stirling Act, but also under applicable federal law.
The Fair Housing Amendments Act, as noted, requires associations to make reasonable accommodations in rules, policies, practices or services when necessary to afford handicapped persons equal opportunity to the use and enjoyment of a dwelling, including public use and common area use. [42 U.S.C. §3604(f)(3)(B) and 24 C.F.R. Section 100.204(a).] The “reasonable accommodation” requirement is a potential trap for the unwary. The courts have held that accommodation is “reasonable”, and is therefore required, unless it imposes an undue financial or administrative burden on the property owner or requires a fundamental alteration in the nature of the housing program.


Enforcement of California Accommodation Right

Enforcement of the California Fair Housing Act may be by administrative action by the California Department of Fair Employment and Housing, or by the California Attorney General. Relief may include access to housing through injunctive or equitable relief, a civil penalty up to $10,000 for a first violation, $25,000 for a second violation and $50,000 for a third violation, and actual damages. Alternatively, an injured party can file a civil lawsuit within two years of the occurrence of the discriminatory housing practice. In a private civil action, the court may award injunctive relief, monetary damages, and civil penalties of $50,000 for a first violation and $100,000 for any subsequent violation, and may award the reasonable attorney fees and costs of the prevailing party.


Enforcement of Fair Housing Amendments Act

The Fair Housing Amendments Act can be enforced in a number of ways. The Secretary of Housing and Urban Development (HUD) may investigate housing practices to determine whether an administrative complaint should be brought. An aggrieved individual or the Secretary of HUD may file a complaint within one year after an alleged discriminatory housing practice has occurred. The complaint must then be answered within ten (10) days of service, and must be signed under penalty of perjury. The complaint may be prosecuted by HUD or referred to a state or local public agency certified by HUD. An attempt to conciliate the complaint is generally required, which can lead to an agreement between the respondent and the complainant. The conciliation agreement can include damages caused by humiliation or embarrassment, attorney’s fees, and other equitable and injunctive relief.

HUD also may issue a “charge” on behalf of the aggrieved person to commence formal administrative legal proceedings, or refer the matter to the Attorney General for appropriate action, including criminal penalties. If a charge is issued, the complainant or respondent may elect to have the claims decided in a civil action, in lieu of an administrative proceeding, in which case the matter is litigated in the federal court.
Relief available for violations of the Act includes temporary or permanent injunctions or restraining orders, monetary damages, and civil penalties in an amount not exceeding $50,000 for a first violation, and not exceeding $100,000 for any subsequent violation. In addition, the court has the discretion to allow a prevailing private litigant reasonable attorney fees and costs. In a civil action brought by an aggrieved person for a discriminatory housing practice, the court may award the plaintiff punitive damages, notwithstanding the absence of actual loss to the plaintiff.


Accommodations Related to Smoking

Because homeowner associations have an affirmative duty to make accommodations in their policies and practices to provide physically and mentally disable residents full enjoyment of their property, boards must properly address requests for special treatment. Where a disabled resident requests the right to smoke marijuana despite a prohibition on smoking, the association may be able to respond that the accommodation request is unreasonable because marijuana is a controlled substance under federal law. 21 U.S.C. 812 et seq. Also, the accommodation may not be reasonable because the medicinal benefits of marijuana may be available to the resident without smoking.
Owners with asthma and other respiratory illnesses who are bothered by smoke may well be entitled to certain accommodations from the association. For example, although the association generally does not upgrade the party walls between condominium units nor improve the common area ventilation system, the statutory obligation to provide an accommodation may well include the expenditure of reasonable sums to investigate how the smoke is intruding and to make improvements to the common area to prevent smoke migration.

A decision of the California Court of Appeal in County of Fresno v. Fair Employment and Housing Commission, although an employment discrimination case, provides some guidance concerning the rights of non-smokers to be free from tobacco smoke. In that case, the Fair Employment and Housing Commission (DEFH) brought proceedings against the County of Fresno on behalf of two employees who were forced to work in inadequately ventilated rooms filled with cigarette smoke despite the County’s knowledge that they suffered from severe respiratory problems and despite repeated requests for accommodation. The Commission ordered back pay, medical expenses and compensatory damages of $30,000 and $40,000 to the employees despite evidence that the County took a number of measures to address the concerns of the two employees. The compensatory damage awards were later overturned by the Superior Court and Court of Appeal.

The County of Fresno case is instructive. DEFH can bring administrative proceedings against homeowners associations, their directors and management agents for housing discrimination based on the failure to provide a reasonable accommodation. Those proceedings can result in damage awards. The boundary line of what is a reasonable accommodation is very unclear.

The use of legal counsel is appropriate to evaluate accommodation requests, including those related to smoke. Such requests must be acted on promptly and in good faith. The fair housing laws were written to protect the rights of the disabled. This policy must be kept in mind when responding to accommodation requests.