March 15, 1995
Mr. C. Robin Britt, Sr., Secretary
N. C. Department of Human Resources 101 Blair Drive
P.O. Box 29526 Raleigh, North Carolina 27626-0526
RE: Advisory Opinion; Whether Substance Abuse Is Included In Definition of Handicapped Person and Halfway Houses Considered Family Care Homes; G.S. 168-1; 168-21
Dear Secretary Britt:
You ask our opinion (1) whether substance abuse is included in the definition of handicapped person in G.S. 168-21(2); and (2) if so, whether substance abuse halfway houses are considered family care homes under G.S. 168-21(1)? We have researched these questions and do not find sufficient authority to include substance abusers in the relevant definition of handicapped persons; therefore, a substance abuse halfway house would not qualify as a family care home.
G.S. 168-21 provides that for purposes of the Article on Family Care Homes, a handicapped person has a "temporary or permanent physical, emotional, or mental disability, including, but not limited t o . . . emotional disturbances." This definition has not been interpreted by the courts.
However, the broader, Chapter-wide definition of handicapped persons at G.S. 168-1 includes those with "physical, mental and visual disabilities." This statutory definition has been inter preted judicially, applying general rules of statutory construction, such that "disability refers to ‘a present, non-correctible loss of function which substantially impairs a person’s ability to function normally’." Burgess v Joseph Schlitz Brewing Co., 298 N.C. 520, S.E.2d 248 (1979).
Judicial application of these definitions to particular facts has led to decisions that:
- (1)
- a person suffering glaucoma, who has 20/20 vision with eyeglasses, is not handicapped. Burgess, 528.
- (2)
- a person suffering from occasional episodes of stress, depression and mental exhaustion did not have a mental disability, and thus was not a handicapped person. Pressman v. University of North Carolina, 78 N.C App 296, 337 S.E.2d 644(1985).
- (3)
- people suffering pulmonary problems and all people who are harmed or irritated by tobacco smoke are not handicapped persons. GASP v. Mecklenburg County, 42 N.C. App. 225, 256 S.E.2d 477 (1979).
We find no medical legal authority to include substance abuse as a present, non-correctible loss of function which substantially impairs a person’s ability to function. Therefore, our opinion is that substance abuse is not a handicapping condition under G.S. 168-21(2). Accordingly, it also is our opinion that a substance abuse halfway house would not qualify as a family care home under G.S. 168-21(1).
We recognize that G.S. 168-1 et seq. is a remedial statute which should be construed liberally in a manner which assures fulfillment of the beneficial goals for which it was enacted and which brings within it all cases fairly falling within its intended scope. Burgess, supra. However, the words and phrases of a statute must be interpreted contextually, in a manner which harmonizes with the other provisions of the statute and which gives effect to the reason and purpose of the statute. In Re Hardy, 294 N.C. 90, 240 S.E.2d 367 (1978); Underwood v Howland, Commr. of Motor Vehicles, 274 N.C. 473, 164 S.E.2d 2 (1968).
When looking at the enumerated handicaps in G.S. 168-21(2), there appears to be a contextual dissonance with substance abuse. Compare substance abuse with "mental retardation, cerebal palsy, epilepsy, autism, hearing and sight impairments, emotional disturbances and orthopedic impairments but not including mentally ill persons who are dangerous to others as defined in
G.S. 122C-3(11)b." These latter conditions meet the requirements of a present, non-correctible loss of body function, which substantially impairs a person’s ability to function normally. Substance abuse is not necessarily a condition which is non-correctible, includes a loss of body function, or which substantially impairs a person’s ability to function normally.
Looking at the other areas of statutory protection for handicapped persons under G.S. 168-1 et seq., we see rights of access to and use of public places, G.S. 168-2; rights to use public conveyances, G.S. 168-3; rights to habilitation and rehabilitation services, G.S. 168-8; rights to housing, G.S. 168-9; rights to equal treatment and consideration in accident and health insurance coverage, G.S. 168-10. While these sections are not directly connected with family care homes under Article 3, they are under Chapter 168, so they provide a contextual backdrop for the entire Chapter and some additional guidance on whether the legislature intended to include substance abuse as a handicapping condition.
This opinion is limited to analysis of the North Carolina statutes cited, and does not include any federal laws or regulations which may apply to substance abusers (e.g. The Fair Housing Act).
Please do not hesitate to contact us for clarification or additional questions on this matter.
Ann Reed Senior Deputy Attorney General
Bruce S. Ambrose
Associate Attorney General