What Constitutes Handicap?

November 17, 2016

At this point in our discussion of land use accommodations, I must address the essential question, what constitutes a handicap?

However, before I do, I must explain that I would much prefer to use the more acceptable term “disability”.  Unfortunately that term was not in vogue when Congress enacted the Federal Fair Housing Act (the “Act”).

The definition of handicap, as used in the Act is as follows:  “a physical or mental impairment which substantially limits one or more of such person’s major life activities, a record of having such an impairment or being regarded as having such an impairment, but such term does not include current, illegal use of or addiction to a controlled substance (as defined in Section 802 of Title 21).”¹ In the land use context, courts have applied that definition to a variety of institutional settings and held that skilled nursing facilities², assisted living facilities,³ and drug and alcohol rehabilitation facilities⁴ all serve handicapped individuals.

Although sponsors of such facilities can take comfort in these cases, sponsors of drug and alcohol rehabilitation facilities should address the drug use qualification in the definition. That is best done by creating a factual record which includes a description of policies and practices which assure that those under treatment are effectively denied access to controlled substances, and should a resident secure such substances, they are removed from the facility.

My next blog post will address the question of standing, or who may bring an action to protect the rights of the handicapped.

Thanks, Steve.

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¹ 42 U.S.C. 3602(h).

² Hovsons v. Twp. of Brick, 89 F.3d 1096 (3d Cir. 1996).

³ Assisted Living Assocs. Of Moorestown, L.L.C. v. Moorestown Twp., 996 F. Supp. 409 (D.N.J. 1998).

⁴ United States v. Borough of Audubon, 797 F. Supp. 353 (D.N.J. 1991); Oxford House-Evergreen v. City of Plainfield, 769 F. Supp. 1329 (D.N.J. 1991).