Summary

If smoking is otherwise allowed in your association, you do not need to ban it as a reasonable accommodation for a person with asthma.

The Facts

Phyllis Davis suffers from asthma but lives in a condominium complex that allows residents to smoke in their units.  Davis claimed that the smoke from a neighboring unit aggravated her asthma.  Davis is a cancer survivor with “a history of asthma and multiple chemical sensitivity disorder.”  When the association didn’t ban smoking in her building she sued alleging that the association had discriminated against her by not granting her reasonable accommodation request to ban smoking in her building thereby violating the Fair Housing Act because of her disability.  Davis also alleged a nuisance claim under the bylaws.

Decision of the Court

The opinion of the United States Court of Appeals, 6^th Circuit is instructive to any association faced with a reasonable accommodation request, as it provides substantive guidance in evaluating the request.  Here is what the court said when analyzing the claim:

1. The Disability Claim. The Fair Housing Amendments Act of 1988 amended the Fair Housing Act to bar housing discrimination against the handicapped. The law makes it unlawful “[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of” that person.
2. Discrimination. Is defined to include “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.”
3. To Win. Davis must prove several things:
   1. Asthma falls within the definition of “handicap.”
   2. Her asthma was otherwise severe enough to “substantially limit[ ]” a “major life activit[y].”
   3. The accommodations are “necessary” to give a person with a handicap an “equal opportunity to use and enjoy a dwelling.”
   4. Her request qualifies as a “reasonable accommodation” to the Association’s policy of allowing smoking.

As to item 3(d), the court held that Davis cannot meet this element. Specifically, the court found that “text and precedent both show that the phrase ‘reasonable accommodation’ means a moderate adjustment to a challenged policy, not a fundamental change in the policy.”  The court proceeds to carefully analyze this last requirement and define what it means by both text and precedent.  In the end, the court simply concludes that a total ban would be a fundamental change in the policy and therefore she loses the FHA case.

4. Nuisance Claim. The court held, “Davis chose to live in a condo complex whose bylaws do not restrict smoking.  As other courts have found, while even a small amount of smoke might be a nuisance in a complex that bans smoking, the same cannot be said for a complex that allows it.”  The court went on to find that while smoking affects Davis more than other residents “nuisance is not subjective.”  The language relates to “an ordinary resident, not a resident with unique needs.”  Plus, the association did not ignore her complaints.  The board sent a letter asking the owner to assist in reducing the smoke, then contracted for a fresh air system and paid for a $275 system in Davis’s condo, and “ultimately put the issue to the condo owners by holding a vote on whether to ban smoking.”  Therefore, the board did not fail to enforce the bylaw.

Lessons Learned

1. For any association faced with a demand for a smoking ban, this case is very instructive on the steps the association should review;
2. People with handicaps, assuming asthma is a handicap for the moment, still need to be held to a reasonable standard; and;
3. Making reasonable efforts to accommodate all of your residents goes a long way toward building favor with the court.

Davis v. Echo Valley Condominium Association, 945 F.3d 483 (2019) (Michigan).