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3. Who qualifies as a person with a disability under the Act?

The Act defines a person with a disability to include (1) individuals with a physical or mental impairment that substantially limits one or more major life activities; (2) individuals who are regarded as having such an impairment; and (3) individuals with a record of such an impairment.

The term "physical or mental impairment" includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, Human Immunodeficiency Virus infection, mental retardation, emotional illness, drug addiction (other than addiction caused by current, illegal use of a controlled substance) and alcoholism.

The term "substantially limits" suggests that the limitation is "significant" or "to a large degree."

The term "major life activity" means those activities that are of central importance to daily life, such as seeing, hearing, walking, breathing, performing manual tasks, caring for one's self, learning, and speaking. (8) This list of major life activities is not exhaustive. See e.g., Bragdon v. Abbott, 524 U.S. 624, 691-92 (1998) (holding that for certain individuals reproduction is a major life activity).

6. What is a "reasonable accommodation" for purposes of the Act?

A "reasonable accommodation" is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with a disability to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces. Since rules, policies, practices, and services may have a different effect on persons with disabilities than on other persons, treating persons with disabilities exactly the same as others will sometimes deny them an equal opportunity to use and enjoy a dwelling.

ºThe Act makes it unlawful to refuse to make reasonable accommodations to rules, policies, practices, or services when such accommodations may be necessary to afford persons with disabilities an equal opportunity to use and enjoy a dwelling.

15. What if a housing provider fails to act promptly on a reasonable accommodation request?

ºA provider has an obligation to provide prompt responses to reasonable accommodation requests. An undue delay in responding to a reasonable accommodation request may be deemed to be a failure to provide a reasonable accommodation.

Most leases include statements such as "PROHIBITED CONDUCT. You and your occupants or guests may not engage in the following prohibited activities: loud or obnoxious conduct; disturbing or threatening the rights, comfort, health, safety, or convenience of others in or near the apartment community, ......

Most leases note, "COMMUNITY POLICIES OR RULES: .....Our rules are considered part of this Lease Contract. We may make reasonable changes to written rules, effective immediately, if they are distributed and applicable to all units in the apartment community and do not change the dollar amounts on page 1 of this Lease Agreement."

In other words you can designate all units in a building as non-smoking with a written notice, as well as advertise and attach an addendum or note in the Lease Agreement for future residents that those particular units are non-smoking.

 When someone is forced to move because the apartment has become uninhabitable it can be considered "constructive eviction." A smoking resident who originates the problem should be told when a resident with a chronic illness is harmed by the smoke, that the tobacco smoke creates a violation of the lease’s health and safety clause and all smoking must be done outside and away from the building while living there or until another unit opens up adjoining other smokers. No one is saying they must stop smoking or move. This is simply a health issue that requires an accommodation.

You may wish to do some research on the Internet on this problem. Just Google "Smoke-Free Apartments." Below is an excerpt from the Smoke-Free Environments Law Project of Ann Arbor, MI;

Americans with Disabilities Act and Fair Housing Act. Non-smoking tenants who are afflicted with breathing disorders may use the Americans with Disabilities Act and/or the Fair Housing Act to bring legal action against landlords for not making reasonable accommodations to protect these tenants from secondhand smoke in common areas or in their apartments.

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Smoke-Free Housing Consultants, Jacque Petterson
8810 Brae Crest Dr., San Antonio, Texas 78249-3835
Office / Fax: (210) 522-1167 / Cell: (210) 383-3244





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