By: Steven M. Williams
I was recently told that the Americans with Disabilities Act requires that I provide interpreter services for prospective residents who do not speak English and cannot understand my application or lease documents. Is this true?
First, the ADA would not apply in this case. The ADA only applies regarding the accessibility of the “public accommodation” portions of your community, such as your rental office. If there are other areas in the community (a pool or tennis courts, for example) that are open to the public, they must also be accessible under the ADA. Otherwise, the ADA does not apply in the housing context, except in the case where the landlord receives public funding of some kind or participates in a publicly funded voucher program.
Second, the inability to speak English (or limited English proficiency, “LEP”) does not constitute a disability. Furthermore, under the federal and Pennsylvania state laws, LEP is not a protected class. This does not end the analysis, though. For example, LEP may be a protected class in some localities. And, discriminating against someone with LEP could lead to a discrimination claim based on national origin, race, or possibly religion. Thus, accommodating someone with LEP may be required in order to avoid a discrimination claim based on another protected class, but not disability. As such, I recommend that landlords find a way to work with someone with LEP to avoid possible claims. Having the ability to convert the lease documents into the native language, providing interpreters, or having someone on staff who speaks the language assist, would all be appropriate.
We prohibit drug activity in our community. The other day, I sent a lease default notice to a resident who was caught smoking marijuana on his patio. He claimed that he is disabled and has a medical marijuana card and insisted that I cannot do anything about it. Please tell me that this is not correct.
Your skepticism is right on. Your tenant is not only wrong, he is violating the law. Smoking is not a permissible use of medical marijuana in Pennsylvania. Currently, medical marijuana is legally available, and useable, only in the form of pills, oils, gels, creams, ointments, tinctures, liquid, and non-whole plant forms for administration through vaporization or eating. Thus, medical card or not, your resident is not in compliance with the law, and you are well within your right to consider him in default of his lease.