Does a tenant with a lung disability have the right to a designated smoke free area in outside common areas?

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Does a tenant with a lung disability have the right to a designated smoke free area in outside common areas?

I live in public housing and have a significant lung disability. I live in a smoke free building, however tenants are allowed to smoke outdoors. We have a courtyard and a community garden (garden beds that are assigned to residents who sign up). I would like to participate, but there is too much cigarette smoke in the courtyard. I would like to put in a reasonable accommodation to have the Housing Authority set up a designated smoking area away from the gardens. They have conveyed to me the smokers have a right to be there. I disagree. What are my rights? Am I being reasonable?

Asked on June 30, 2011 under Real Estate Law, Washington

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

If your county or municipality has anti-smoking laws that would entitle to you what you want, you may be entitled to it. Under general housing discrimination law--the law which prevents discrimination against the disabled--you probably do not. The housing discrimination law is different from employment discrimination law; while employment discrimination law can require changes in procedures, housing discrimination law mostly requires, in terms of accomodations, only physical changes to the tenant's own dwelling unit or the building (such as shower grab bars; a wheelchair ramp or wheelchair accessible doors; etc.), but not changes in community rules. Usually requiring the community to make changes to a smoking policy would not be considered a reasonable accomodation. However, that is just a general legal analysis--every case is different, and sometimes new law is made by challenging the old rules. To understand what your rights are in this case and your chance of success, you should speak with an attorney; if you can't afford one, legal services often helps disabled lower-income or public housing tenants.

Also, even if you might not have the right to force this change, nothing stops you from asking; the housing authority may well choose voluntarily to accomodate you.


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