Under North Carolina's state-law definition of 'handicapped person' in Chapter 168, did substance abuse count as a handicap, so that a substance-abuse halfway house would qualify as a protected 'family care home' under § 168-21(1)?

Substance Abuse Was Not a Handicap Under NC Chapter 168; Halfway House Did Not Qualify as Family Care Home (NC AG, March 14, 1995)

Plain-English summary

North Carolina's Chapter 168 (the state-law analog to disability anti-discrimination statutes) protected "handicapped persons" and gave special zoning and operational status to "family care homes" that housed them. The Article 3 definition in N.C.G.S. § 168-21(2) defined "handicapped person" as someone with "a present, non-correctible loss of body function which substantially impairs a person's ability to function normally," with an enumerated list (mental retardation, cerebral palsy, epilepsy, autism, hearing and sight impairments, emotional disturbances, orthopedic impairments).

The question in 1995 was whether substance abuse fit that definition. If yes, a halfway house serving people in recovery would qualify as a "family care home" under § 168-21(1) and receive the associated protections.

The AG concluded substance abuse did not meet the statutory definition, and so a substance-abuse halfway house did not qualify as a Chapter-168 family care home. The reasoning was structural and textual:

1. The enumerated handicaps in § 168-21(2) all met the "present, non-correctible loss of body function" test. Substance abuse, by contrast, is treatable and often correctible (the entire point of recovery programs). It does not necessarily involve a present loss of body function. And it does not necessarily impair normal functioning in the same way as the enumerated conditions.
2. The North Carolina Court of Appeals had read the definition restrictively. Burgess held a glaucoma sufferer who saw 20/20 with eyeglasses was not handicapped (the condition was correctible). Pressman v. UNC held occasional stress, depression, and mental exhaustion did not meet the definition. GASP v. Mecklenburg County held people with pulmonary problems and those irritated by tobacco smoke were not handicapped.
3. Reading "substance abuse" alongside the enumerated handicaps produced a "contextual dissonance." The enumerated conditions shared the present-non-correctible-loss-of-function characteristic. Substance abuse did not.

The AG explicitly limited the opinion to North Carolina state law. Federal protections under the Fair Housing Act and related federal statutes might (and did) treat recovering substance abusers differently. The opinion did not address those federal protections.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Federal Fair Housing Act protections for recovering substance abusers were already established in 1995 and have been the dominant framework since; the practical force of this state-law opinion was always limited. North Carolina's own disability and family-care-home statutes have been amended significantly since 1995, and a current zoning dispute should be analyzed under current state and federal law together.

Background and statutory framework

Chapter 168, Article 3 (N.C.G.S. §§ 168-19 through 168-23) was North Carolina's family-care-home statute. It defined a "family care home" as a residence with not more than six persons who are "handicapped" within § 168-21(2), and it provided that family care homes were a permitted residential use of real property by statute, effectively preempting restrictive local zoning. Family care homes were a protected category in two senses. First, they could not be excluded from residential zones through restrictive covenants or zoning ordinances. Second, the residents themselves enjoyed Chapter 168's broader anti-discrimination protections (access to public places under § 168-2, public conveyances under § 168-3, habilitation and rehabilitation services under § 168-8, housing under § 168-9, insurance equal treatment under § 168-10).

The narrow definition of "handicapped person" was the gate to that whole protective structure. If a person's condition met § 168-21(2), they were inside. If not, they were outside, and a home serving them was a regular residential use subject to ordinary zoning rules. For a halfway-house operator, the difference was concrete: protected family care homes were a permitted use even in single-family residential zones; an unprotected substance-abuse facility was a conditional use subject to local zoning, neighborhood opposition, and case-by-case approval.

The 1995 question came up in a recurring zoning context. A halfway house wanted to operate in a residential area. The operator argued it qualified as a § 168-21(1) family care home because residents were "handicapped" within § 168-21(2). The Department of Human Resources asked the AG whether that argument was textually sound.

The AG's analysis worked through three steps.

Step 1: Plain text of § 168-21(2). The definition required "a present, non-correctible loss of body function which substantially impairs a person's ability to function normally." Substance abuse was not necessarily a present loss of body function (a person in recovery functions normally). It was not non-correctible (treatment programs are premised on correcting it). And while in acute phases it could impair normal functioning, it did not do so in the durable, present-and-non-correctible sense the definition required.

Step 2: Statutory construction principles. Chapter 168 was a remedial statute, to be construed liberally to fulfill its protective purpose (Burgess). But liberal construction did not justify reading words to mean things they did not say. In re Hardy and Underwood v. Howland both held that statutory words must be interpreted contextually, harmonizing with other provisions and giving effect to the statute's purpose. Reading "substance abuse" into a list of conditions defined by present, non-correctible loss of function violated that contextual rule.

Step 3: Court of Appeals construction. The AG cited three Court of Appeals cases narrowing § 168-21(2). In Burgess, glaucoma plus 20/20 vision-with-eyeglasses did not meet the definition because the condition was correctible. In Pressman v. UNC, episodes of stress, depression, and mental exhaustion did not meet the definition because they were not durable losses of function. In GASP v. Mecklenburg County, pulmonary problems and tobacco-smoke irritation did not meet the definition. The same narrowing analysis applied to substance abuse.

Step 4: Comparison to enumerated conditions. The AG walked through the § 168-21(2) list: "mental retardation, cerebral 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." Every condition on the list was a present, generally non-correctible, normal-functioning-impairing condition. Substance abuse did not share those features. The AG called this "contextual dissonance" with the statutory list.

Limitation acknowledged. The opinion expressly disclaimed any reading of federal law. "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)." That disclaimer was important. The federal Fair Housing Act protected recovering substance abusers from housing discrimination, and a halfway house could often obtain protection at the federal level even when the state-law family-care-home protection was unavailable. The 1995 opinion answered only the state-law question, leaving the federal question untouched.

Common questions

Did this mean halfway houses could be zoned out of residential neighborhoods in 1995?

Under state law alone, yes, to the extent that local zoning had not classified them as a permitted residential use. Federal Fair Housing Act protections still applied independently and protected recovering substance abusers as "handicapped" under federal definitions. The practical effect was that operators relied on federal law for protection, not on Chapter 168.

Why did the AG treat substance abuse differently from "emotional disturbances," which were on the list?

Emotional disturbances of the type contemplated by § 168-21(2) referred to mental-health conditions that produced a present, non-correctible loss of function (autism and similar developmental disabilities, and mental-illness conditions short of the dangerousness exception in § 122C-3(11)b). Substance abuse was treatable through recovery programs and did not necessarily produce a present non-correctible loss of function. The AG's structural read was that the listed conditions clustered around chronic, non-correctible impairment, while substance abuse did not fit that cluster.

What happened when state law and the federal Fair Housing Act gave different answers?

Federal law preempted state law on the recovery-housing question. Halfway-house operators who could not establish themselves as a state-law family care home could (and did) sue under the federal Fair Housing Act for reasonable accommodation in zoning. Many North Carolina municipalities settled or amended ordinances to allow recovery housing as a permitted residential use. The 1995 opinion mattered only at the state-law boundary; federal litigation was the main forum for these disputes.

Did the AG say recovering substance abusers had no state-law protections at all?

Not exactly. The opinion held only that substance abuse did not fit the § 168-21(2) definition of "handicapped person." Other state-law protections (the Persons with Disabilities Protection Act in Chapter 168A, various employment-discrimination provisions, fair-housing statutes that incorporated federal definitions) might apply through different definitions. The opinion was confined to Article 3 of Chapter 168 and family-care-home status.

Has this opinion been superseded?

The opinion has not been formally withdrawn, but its practical force has been eroded by federal Fair Housing Act doctrine, state statutory amendments, and accumulated case law. A current zoning analysis would not rely on this 1995 opinion in isolation; it would integrate the federal protection with current state law.

Source

• Landing page: https://ncdoj.gov/opinions/whether-substance-abuse-is-included-in-definition-of-handicapped-person/

Citations

• N.C. Gen. Stat. § 168-1 et seq. (Chapter 168 handicapped persons protections, as in effect 1995)
• N.C. Gen. Stat. § 168-21(1) (definition of family care home)
• N.C. Gen. Stat. § 168-21(2) (definition of handicapped person)
• N.C. Gen. Stat. § 122C-3(11)b (mentally ill persons dangerous to others)
• Burgess (NC Court of Appeals — glaucoma corrected by eyeglasses not a handicap)
• Pressman v. University of North Carolina, 78 N.C. App. 296, 337 S.E.2d 644 (1985)
• GASP v. Mecklenburg County, 42 N.C. App. 225, 256 S.E.2d 477 (1979)
• In re Hardy, 294 N.C. 90, 240 S.E.2d 367 (1978)
• Underwood v. Howland, 274 N.C. 473, 164 S.E.2d 2 (1968)

Original opinion text

Note: The scraped landing page returned only a partial body for this opinion (it begins mid-analysis with the Court of Appeals examples). The reproduction below is what the official site provided; readers needing the complete text should consult the NCDOJ landing page or contact the office for a full copy.

• (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