BILL ANALYSIS Ó
AB 2760
Page 1
Date of Hearing: May 3, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 2760
(Mathis) - As Amended April 25, 2016
SUBJECT: LANDLORD AND TENANT: SUPPORT ANIMALS
KEY ISSUES:
1)SHOULD state law allow landlords to prohibit tenants from
having support animals on the rental property in likely
violation of federal fair housing law and other laws when
doing so Could jeopardize millions of dollars in federal
housing funds to california?
2)should state law ALLOW new grounds for eviction against
disabled persons with legitimate support animals, including
for reasons that are vague or not under the control of the
tenant?
SYNOPSIS
This controversial bill, sponsored by the California Association
of Realtors, would allow landlords, as a condition of a lease,
to prohibit a tenant or prospective tenant from possessing a
support animal, as defined, and creates new grounds for eviction
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specific to tenants with support animals. The bill would codify
a new definition of "support animal" that excludes service
animals, as that term is already defined under state and federal
law, but that would require the support animal to be prescribed
by a California licensed physician or mental health professional
in order to treat a mental or emotional illness or disability.
Proponents of this bill, primarily apartment associations, argue
that the bill is necessary to respond to an epidemic of
apartment tenants trying to get around a landlord's "no pets"
policy by claiming pets are support animals, while many of these
unauthorized animals damage the property or threaten the safety
of other tenants or animals.
Numerous state and federal laws, including the Federal Fair
Housing Act and the California Fair Employment and Housing Act,
require landlords to make reasonable accommodations for
individuals with disabilities when the accommodations are
necessary to provide the individuals with the equal opportunity
to use and enjoy their housing. California courts have
previously held that a disabled person is entitled to a
reasonable accommodation for a support animal. Auburn Woods I
Homeowners Assn. v. Fair Employment & Housing Comm. (2004) 121
Cal. App. 4th 1578. Settled case law, as well as federal HUD
regulations and guidance, provide broad support for an
individual's right to have a support animal and prohibit housing
providers from placing unnecessary restrictions on this right.
Opponents of the bill, including advocates for tenants, disabled
persons, and animal welfare organizations, contend that this
bill creates a mechanism for landlords to deny disabled tenants
reasonable accommodations in housing to which they are entitled
under federal and state law.
By ignoring the fact that support animals-not just service
animals--are entitled to reasonable accommodation, this bill
conflicts with federal law and appears to facilitate illegal
discrimination against disabled persons with support animals.
In addition, the bill contains a number of other provisions that
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appear to conflict with federal fair housing law, including the
prescription requirement, the authorization to charge extra fees
or deposits for the support animal, among other things. These
provisions, which conflict with federal law are especially
troubling, opponents contend, because they could jeopardize
California's ability to receive millions of dollars of federal
housing funds from the Department of Housing and Urban
Development (HUD). Specifically, if California were to enact
laws later found to be out of compliance with federal fair
housing standards, the state would likely lose its certification
by HUD that provides the State Department of Fair Employment and
Housing (DFEH) with millions of dollars in funding to carry out
its fair housing enforcement duties. For all of these reasons,
a better alternative than passing this bill would be to support
the CA Fair Employment and Housing Council's ongoing efforts to
develop official rules and regulations about support animals
through the administrative rulemaking process, which while
slower and more deliberate (given the public comment and
hearings involved) is assured of producing a fair solution that
does not violate federal fair housing law as this bill
unfortunately appears to do on many levels.
SUMMARY: Allows landlords, as a condition of a lease, to
prohibit a tenant or prospective tenant from possessing a
support animal, as defined, and creates new grounds for eviction
specific to tenants with support animals. Specifically, this
bill:
1)Provides that a residential lease may require a tenant who
possesses a support animal on the rented premises or
associated common areas to be subject to the following
conditions:
a) The tenant must notify, and receive approval from, the
landlord prior to bringing the support animal on the rented
premises or associated common areas.
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b) The support animal must be housebroken.
c) The support animal may not disturb the quiet enjoyment
of the premises by other tenants or pose a threat to other
tenants or their property.
d) The presence of the animal may not jeopardize the
availability or price of insurance.
2)Provides that if a tenant or prospective tenant satisfies the
conditions specified above in Item 1), above, then he or she
shall not be prohibited from possessing a support animal on
the rented premises or associated common areas.
3)Provides that if a residential lease contains the conditions
specified above in Item 1), then a breach of any one of the
conditions constitutes a breach of the lease, subjecting the
tenant to eviction.
4)Clarifies that these provisions shall not affect the ability
or rights under any law to possess a service animal, nor
affect the amount of, or ability to pursue, a security
deposit, including a pet deposit, under any law.
5)Defines "support animal" to mean a support dog, companion
animal, emotional support animal, or assistive animal that is
prescribed by a California licensed physician or licensed
mental health professional in order to treat a mental or
emotional illness or mental or emotional disability.
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6)Defines "service animal" to include guide dogs, signal dogs,
service dogs, and service animals, as those terms are defined
under various sections of existing law, and further provides
that a support animal does not include a service animal.
EXISTING FEDERAL LAW:
1)Requires reasonable accommodations in rules, policies,
practices, or services when the accommodations are necessary
to provide a disabled individual equal opportunity to use and
enjoy the dwelling. (24 CFR 200.204.)
2)Pursuant to the Fair Housing Act (FHA), defines
"discriminatory housing practice" as including, among other
things, the refusal to make reasonable accommodations in
rules, practices, policies, or services when such
accommodations are necessary to afford an individual with a
disability equal opportunity to use or enjoy the dwelling.
(42 U.S.C. Section 3604.)
3)Defines a "service animal" as any dog or housebroken miniature
horse that is individually trained to do work or perform tasks
for the benefit of an individual with a disability and
expressly provides that comfort, emotional support, and
companionship animals are not services animals. (28 CFR
35.104 and 28 CFR 35.136.)
4)Prohibits public entities from asking about the nature of an
individual's disability, but permits public entities to ask
whether an animal is required because of a disability and what
work or tasks the animal has been trained to perform. (28 CFR
35.136 (f).)
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5)Requires housing providers to make reasonable accommodations
in housing with disabilities, including granting an exception
to a "no pets" policy to accommodate the need for a support
animal. (Auburn Woods I Homeowners Association v. Fair
Employment and Housing Commission (2004) 121 Cal. App.4th
1578.)
6)Pursuant to the Americans with Disability Act (ADA), provides
that a qualified individual with a disability shall not be
excluded or denied benefits, services, programs, or activities
from a public entity due to the individual's disability. (42
U.S.C. Section 12132.)
7)Pursuant to Section 504 of the Rehabilitation Act of 1973
("Section 504"), provides that no otherwise qualified
individual with a disability in the United States shall,
solely by reason of her or his disability, be excluded from
the participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity
receiving Federal financial assistance or under any program or
activity conducted by any Executive agency. (29 U.S.C.
Section 794.)
EXISTING STATE LAW:
1)Declares that the opportunity to seek, obtain, and hold
housing without discrimination based on certain specified
characteristics including race, religion, gender identity,
sexual identity, and disability is a civil right. (Government
Code Section 12921. All further references are to this code
unless otherwise stated.)
2)States that federal law provides a floor for protecting
individuals with disabilities whereas the law of this state
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provides additional protection, and defines physical
disability, mental disability, and medical condition broadly.
(Sections 12926.1 (a), 12926 (b), and 12955.6.)
3)Provides "discrimination" includes, among other things, the
refusal to make reasonable accommodations in rules, policies,
practices, or services when they are necessary to afford a
disabled person equal opportunity to use and enjoy a dwelling.
(Section 12927.)
4)Prohibits discrimination based on, among other things, race,
religion, gender identity, sexual orientation, and disability
in housing accommodations and specifies discrimination in
housing accommodations is against public policy. (Section
12955.)
5)Prohibits any person from printing or publishing a statement
relating to the sale or renting of a housing accommodation
expressing preference for or discriminating against a group
based on, among other things, race, gender, or disability.
(Sections 12955 (c).)
6)Provides intent to discriminate against an individual based
on, among other things, a disability is considered to be a
violation of the Fair Housing Amendments Act and can be proven
by circumstantial evidence. (Section 12955.8 (a).)
7)States a landlord can only make a claim of payment or deposit
for the amount that is reasonably necessary to remedy a
tenant's defaults in the payment of rent, to repair damages to
the premise caused by the tenant, and to clean the premise
after the tenancy has been terminated. (Civil Code Section
1950.7 (c).)
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8)Provides that any person renting, leasing, or otherwise
providing real property for compensation shall not refuse to
make reasonable accommodations in rules, policies, practices,
or services, when those accommodations may be necessary to
afford individuals with a disability equal opportunity to use
and enjoy the premises. (Civil Code Section 54.1.)
FISCAL EFFECT: As currently in print this bill is keyed
non-fiscal.
COMMENTS: This controversial bill, sponsored by the California
Association of Realtors, would allow landlords, as a condition
of a lease, to prohibit a tenant or prospective tenant from
possessing a support animal, as defined, and create new grounds
for eviction specific to tenants with support animals. The bill
would also codify a new definition of "support animal" that
would require the support animal to have been prescribed by a
California licensed physician or mental health professional in
order to treat a mental or emotional illness or disability.
According to the Realtors:
Too often, landlords are subjected to untrained animals
being brought onto their property without proper notice.
Many of these animas cause extensive property damage and
threaten the safety of other tenants and their service
animals. AB 2760 will require the furnishing of a tenant's
medical need for a companion animal prior to its
permittance with a place of residence that limits pets.
This bill will help to mitigate the damages caused by
unregistered companion animals while protecting the rights
of landlords and tenants.
Background on "service animals" vs. "support animals."
According to the author, and as stated in the recent legislative
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findings that were amended into the bill, "[S]ervice animals are
a special class of animals uniquely deserving of protections and
accommodations in law, and are already clearly defined in
California law and in federal law. . . [while] so-called
"support," "companion," or "emotional support" animals are not
clearly defined in law, and their appropriate use in the context
of rental housing requires clarification."
The author is partially correct in that the definition of a
service animal is clearly defined in state and federal law. The
bill itself defines the term "service animal" by incorporating
several statutory definitions from elsewhere in the California
Codes, namely:
(1) "service dog" under Health & Safety Code Section 113903
("any dog that is individually trained to do work or
perform tasks for the benefit of an individual with a
disability, including a physical, sensory, psychiatric,
intellectual, or other mental disability");
(2) "guide dog" under Civil Code Section 54.1 ("any guide
dog that was trained by a person licensed under Chapter 9.5
(commencing with Section 7200) of Division 3 of the
Business and Professions Code or as defined in the
regulations implementing Title III of the Americans with
Disabilities Act of 1990 (Public Law 101-336)");
(3) "signal dog" under Civil Code Section 54.1 ("any dog
trained to alert an individual who is deaf or hearing
impaired to intruders or sounds."); and
(4) "service dog" under Civil Code Section 54.1 ("any dog
individually trained to the requirements of the individual
with a disability, including, but not limited to, minimal
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protection work, rescue work, pulling a wheelchair, or
fetching dropped items.")
By contrast, the bill defines a "support animal" to mean "a
support dog, companion animal, emotional support animal, or
assistive animal that is prescribed by a California licensed
physician or licensed mental health professional in order to
treat a mental or emotional illness or mental or emotional
disability." Finally, the bill states that a support animal
does not include a service animal, that they are mutually
exclusive categories.
Disability Rights California (DRC) disputes the author's
contentions that "service animals" are clearly defined while
"support animals" are not clearly defined under law. Contrary
to the author's contention, DRC cites a number of cases where
courts did not have any problem distinguishing between a service
animal and a support animal. (See, e.g. Auburn Woods I
Homeowners Association v. Fair Employment and Housing Commission
(2004) 121 Cal.App.4th 1578, 1595-96, recognizing that the dog
at issue "did not need special skills to ameliorate the effects
of the defendants' disabilities [but it was] the dog's
friendliness and ability to interact with humans that made it
therapeutic here." See also Janush v. Charities Housing
Development Corp. (2000) 169 F. Supp. 2d. at 1136-37.)
DRC contends that guidance developed by the U.S. Department of
Housing and Urban Development (HUD) is fairly clear on this
subject, although it does not correspond to the framework of
definitions proposed by this bill. First of all, HUD guidance
refers to a category of "assistance animals," which includes
what some people term "support animals," "assistive animals,"
"therapy animals," and "service animals." ("Service Animals and
Assistance Animals for People with Disabilities in Housing and
HUD-Funded Programs," HUD FHEO Notice: FHEO-2013-01 (April 25,
2013), [hereafter "HUD FHEO Notice"]. According to HUD
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guidance, and most importantly for purposes of this bill, these
assistance animals are treated alike with respect to the law of
reasonable accommodations. (Emphasis added.) The concept of
assistance animals, including both service animals and support
animals, is also important simply to distinguish them from mere
pets. HUD guidance states:
An assistance animal is not a pet. It is an animal that
works, provides assistance, or performs tasks for the
benefit of a person with a disability, or provides
emotional support that alleviates one or more identified
symptoms or effects of a person's disability. Assistance
animals perform many disability-related functions,
including but not limited to, guiding individuals who are
blind or have low vision, alerting individuals who are deaf
or hard of hearing to sounds, providing protection or
rescue assistance, pulling a wheelchair, fetching items,
alerting persons to impending seizures, or providing
emotional support to persons with disabilities who have a
disability-related need for such support. (HUD FHEO Notice,
p.2.)
Relationship to ADA; a separate definition for different
purposes. The Americans With Disabilities Act (ADA) adds
complexity because it maintains a separate definition of
"service animal", distinct from that which is part of the
category of "assistance animals:" under FEHA. ADA regulations
define "service animal" narrowly as any dog that is individually
trained to do work or perform tasks for the benefit of an
individual with a disability, including a physical, sensory,
psychiatric, intellectual, or other mental disability. (HUD FHEO
Notice, p. 4.) The revised regulations also specify that "the
provision of emotional support, well-being, comfort, or
companionship do not constitute work or tasks for the purposes
of this definition"-in essence excluding support animals from
this definition.
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In addition to their reasonable accommodation obligations under
the FHA and Section 504, housing providers may also have
separate obligations under the ADA. The ADA definition of
"service animal" applies to state and local government programs,
services, activities, and facilities and to public
accommodations, such as leasing offices, social service center
establishments, universities, and other places of education.
Because the ADA requirements relating to service animals are
different from the requirements relating to assistance animals
under the FHA and Section 504, an individual's use of a service
animal in an ADA-covered facility must not be handled as a
request for a reasonable accommodation under the FHA or Section
504. Rather, in ADA-covered facilities, an animal need only
meet the ADA definition of "service animal" to be allowed into a
covered facility.
By ignoring the fact that support animals-not just service
animals--are entitled to reasonable accommodation, this bill
conflicts with federal law and appears to facilitate illegal
discrimination against disabled persons with support animals.
This bill draws an unnecessary and incorrect distinction between
service animals and support animals, which under federal fair
housing law, reasonable accommodation is required to be made for
both types of animals. Consequently this bill appears to
facilitate illegal discrimination in housing against disabled
persons with support animals and conflicts with federal law for
the reasons described below.
Housing discrimination against persons with disabilities is
prohibited both under federal law in the Fair Housing Act (FHA),
and under comparable California laws: FEHA and the Unruh Act.
Under the FHA, FEHA, and the Unruh Act, landlords must make
reasonable accommodations for people with disabilities. (See
Civil Code Section 54.) Reasonable accommodations are
exceptions to rules or policies necessary in order to allow
persons with disabilities to have an equal opportunity to use
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and enjoy a dwelling as compared to persons without
disabilities. The obligation to make reasonable accommodations
includes a requirement that housing providers make exceptions to
a "no-pets" policy to permit persons with disabilities to use
and live with either a service or emotional support animal.
(HUD FHEO Notice at p. 3.)
In the context of housing, the federal government uses a more
inclusive definition of what types of animals must be allowed in
housing as a reasonable accommodation under the Fair Housing
Act. As mentioned above, the broader term used in housing is
"assistance animal." An assistance animal is "an animal that
works, provides assistance, or performs tasks for the benefit of
the person with a disability, or provides emotional support that
alleviates one or more identified symptoms or effects of a
persons' disability." (HUD FHEO Notice, p.2.) This means that,
in addition to service animals, emotional support animals and
animals that provide some type of disability-related assistance
are permitted as a reasonable accommodation in housing.
California courts have previously held that a disabled person is
entitled to a reasonable accommodation for a support animal.
(Auburn Woods I Homeowners Assn. v. Fair Emp't & Hous. Com.
(2004) 121 Cal. App. 4th 1578.) In Auburn Woods, the court held
a homeowners association had failed to provide the tenants with
a reasonable accommodation by forcing them to remove their dog
from the property. As noted by the National Housing Law
Project, "Both settled case law and HUD regulations and guidance
provide broad support for an individual's right to a have a
support animal and prohibits housing providers from placing
unnecessary restrictions on this right."
The premise of the bill appears to be that people having support
animals may effectively be denied accommodations to, or evicted
from, rental property because support animals, as that term is
uniquely defined by this bill, are not protected or deserving of
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protection to the same extent that service animals are under
existing law. This bill would allow a landlord, as a condition
of a lease, to prohibit a tenant or prospective tenant from
possessing a support animal, as defined. It would also create
several new grounds for eviction specifically enforceable by a
landlord against a tenant possessing a support animal, as
defined. Instead of ensuring reasonable accommodations are
made, however, this bill appears to do the opposite and
potentially allows landlords to discriminate against and deny
housing to disabled persons with support animals in violation of
federal law.
By violating federal fair housing law, this bill unfortunately
jeopardizes California's ability to receive millions of dollars
of federal funding from HUD. Federal fair housing provisions
establish a legal framework regarding support animals.
Opponents of the bill, as discussed above, believe that the
standards under which a landlord may refuse a requested
accommodation conflict with and are a significant departure from
federal law. The Western Center on Law and Poverty (WCLP) notes
that federal requirements in the area of fair housing are a
floor, not a ceiling, and California cannot enact lower
standards, as the bill does in several instances (to be
discussed later). In addition to triggering needless litigation
over lower conflicting requirements in state law, there is an
even more pressing concern at stake when considering this bill,
or any legislation like it that conflicts with federal
standards. WCLP further explains:
If California were to be found out of compliance with
federal fair housing standards, enacting this bill could
jeopardize federal housing funds. The Department of
Housing and Urban Development has the authority to certify
a state or local fair housing agency with "substantial
equivalency." This certification means that a state
"enforces a law that provides substantive rights,
procedures, remedies, and judicial review provisions that
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are substantially equivalent to the federal Fair Housing
Act. Importantly, HUD certification provides the State
Department of Fair Employment and housing ("DFEH") with
millions of dollars in funding to carry out its fair
housing enforcement duties-vital funds given California's
current budget crisis. Thus, DFEH is responsible for much
of the fair housing enforcement in the state. This bill
jeopardizes the state's certification, which is renewed
every five years. Without the certification and the
funding that it provides, the DFEH would have to
drastically reduce its enforcement of fair housing rights,
not just for people with disabilities, but for all
protected classes.
The California Fair Employment and Housing Council to promulgate
rules about support animals. Because of the jeopardy to federal
funding potentially caused by this bill, many of the advocates
opposing the bill urge the Committee to not derail the ongoing
work of the California Fair Employment and Housing Council to
draft and promulgate official rules and regulations about
support animals. According to the National Housing Law Project:
Members of the California Fair Employment and Housing
Council are currently undertaking a thoughtful and detailed
process in drafting housing regulations that will apply to
the entire state. The administrative procedure involves
many stakeholders including landlord and realtor trade
groups, tenant advocates, and residents. Reasonable
accommodations and service animals are covered in the draft
regulations and interested parties are part of an ongoing
dialogue with the Council on these important issues. We
request that the Assembly defer to the Council and the
administrative process, of which a vast array of
stakeholders are already involved, to promulgate rules
about service animals.
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According to WCLP, "expert stakeholders are already
participating in a full dialog to develop effective and fair
regulations. The bill unnecessarily short-circuits this
process. Although some object that the process has been slow,
this issue area is complex, and requires careful deliberation.
A quick fix will cause more problems than it might solve."
Opponents contend that the California Fair Employment and
Housing Council is essentially commanded to ensure the
guidelines they develop for support animals meet the
requirements for the substantial equivalence certification, and
therefore (unlike this bill) California will not be at risk of
losing millions of dollars in funding from the federal
government.
Additional ways in which this bill conflicts with federal
housing law. In addition to the reasons already stated,
numerous other provisions of AB 2760 appears to conflict with
federal law. Opponents contend that housing providers following
the rules established by this bill, were it to become law, would
almost certainly find themselves violating federal fair housing
law and anti-discrimination laws that protect disabled persons,
and of course strengthening the degree to which the bill
jeopardizes federal funding of DFEH. Several of the conflicting
provisions are discussed below.
Prescription requirement. This bill defines "support animal" to
mean a support dog, companion animal, emotional support animal,
or assistive animal that is prescribed by a California licensed
physician or licensed mental health professional in order to
treat a mental or emotional illness or mental or emotional
disability. As such, the bill would require a tenant to obtain
a prescription for a support animal from a licensed mental
health care professional. DRC argues that there is no provision
in California law for a "prescription" for a support animal, and
that requiring such a "prescription", even if it existed, would
violate federal and state law, which allows a range of methods,
including letters from doctors and other reliable individuals to
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document the individual's disability and need for a support
animal. The National Housing Law Project (NHLP), writing in
opposition, further explains:
This requirement would place an enormous barrier on people
with disabilities in obtaining a service animal and is
contrary to HUD's extensive guidance on the issue. HUD's
policy is that an individual requesting an accommodation
may provide verification of his or her disability from a
variety of sources. In fact, in both published guidance and
HUD's Multifamily Handbook 4350.3, HUD does not limit
disability verification to health care professionals. HUD
provides that non-medical service providers, peer support
group members, or other reliable third parties may verify
the individual's disability. In addition, when a tenant
under the age of 65 receives Social Security Disability
Insurance benefits or Supplemental Security Income, the
tenant should be able to self-certify as to the disability.
Courts have even found that an individual's testimony is
sufficient proof of a disability. (Powers v. Kalamazoo
Breakthrough Consumer Housing Coop. (2009) WL 2922309.)
In short, it would appear that limiting verification to a
licensed mental health care professional is unnecessarily
restrictive, contrary to established federal law and HUD
guidance, and may even have an adverse impact on low-income
people with disabilities who may face barriers to accessing care
by a licensed professional.
Extra pet deposit or fee charged for support animal. The bill
was recently amended to state that its provisions shall not
affect the ability or rights under any law to possess a service
animal, nor affect the amount of, or ability to pursue, a
security deposit, including a pet deposit, under any law. Prior
to this amendment, the bill explicitly allowed a landlord to
include the payment of an extra charge or security deposit for
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maintaining a support animal on the property. It is not clear
what the intent of this new language is, but it should be noted
that any provision that seeks to allow landlords to charge
tenants a fee for their support animals would be a violation of
federal and state fair housing laws. (Fair. Hous. Of the
Dakotas, Inc. v. Goldmark Prop. Mgmt., Inc., (2011) 778 F. Supp.
2d 1028 (denying landlord's motion for summary judgment on
reasonable accommodation claim for waiver of pet deposit for
emotional support animals).) Federal law allows housing
providers to require applicants or residents to pay a pet
deposit, but they may not require applicants and residents to
pay a deposit for an assistance animal. (HUD FHEO Notice, p.3.)
The author may wish to clarify the intent of this language to
ensure that it does not violate federal rules barring charging a
fee to keep a support animal.
Threat to other tenants; jeopardy to availability of insurance.
The bill provides that as a condition of having a support
animal, and also as a ground of possibly eviction, that the
support animal may not disturb the quiet enjoyment of the
premises by other tenants, pose a threat to other tenants or
their property, or jeopardize the availability or price of
insurance. The California Association of Realtors, sponsors of
the bill, write, "Too often, landlords have been faced with
untrained animals being brought onto their rental property
without any notice to the landlord or property manager. These
animals may cause extensive property damage to the rental unit
and pose a threat to other tenants and their own service
animals."
With respect to the possible threat to other tenants, federal
law prohibits such a blanket rule as a precondition to any
support animal. According to HUD guidance, any determination
that an assistance animal poses a direct threat of harm to
others or would cause substantial physical damage to the
property of others must be based on an individualized assessment
that relies on objective evidence about the specific animal's
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actual conduct - not on mere speculation or fear about the types
of harm or damage an animal may cause and not on evidence about
harm or damage that other animals have caused. (HUD FHEO
Notice, p.3.) Breed, size, and weight limitations may not be
applied to an assistance animal, and conditions and restrictions
that housing providers apply to pets may not be applied to
assistance animals. (Id.)
Current law provides landlords only have to provide disabled
tenants with accommodations if they are reasonable. The Western
Center on Law and Poverty, opposing the bill, notes, " If a
support animal is a danger to others or poses an undue burden on
the landlord, fair housing law already adequately addresses
those issues in the context of the reasonableness of the
requested accommodation. Giving landlords the authority to also
evict tenants under these circumstances goes too far, and runs
counter to the principles of fair housing." Landlords do not
have to provide accommodations if the support animal poses a
threat to other tenants. Furthermore, current law already
allows landlords to charge tenants for property damage caused by
their animal, thereby protecting landlords from costs associated
with problematic support animals.
With respect to the availability of insurance argument, this
bill appears to create a justification for denial of housing and
a corresponding ground for eviction based on a criterion that is
altogether out of the control of the disabled person. As a
prospective tenant seeking housing, how can a disabled person
and his support animal possibly know how to comply with a
condition that requires the animal to "not jeopardize the
availability or price of the (landlord's) insurance?" The
Humane Society of the United States (HSUS), writing in
opposition, contends that the housing industry routinely uses
insurance parameters as an excuse to restrict dogs by breed, but
is unaware of any hard data or clarity on this issue from within
the insurance industry. HSUS states that if insurance companies
have policies which violate fair housing laws, those policies
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need to be addressed-but not at the expense of disabled tenants
and their support animals.
ARGUMENTS IN SUPPORT: This bill is supported by a number of
apartment associations, who contend that there is a growing
epidemic of apartment tenants trying to get around a landlord's
"no pets" policy. The San Diego County Apartment Association
writes:
AB 2760 is being proposed due to the abuse by some
apartment tenants of the use of so-called companion or
support animals. . . An example of a service animal is a
seeing-eye dog which is specifically trained to assist an
individual with a vision disability. Qualified service
animals and the need to have one by a person with a
disability means that a disabled resident enjoys certain
federal civil right protected against discrimination.
Unfortunately there is a growing cottage industry of those
who certify support or companion animals, which unlike
service animals, are not trained to perform a certain task
to assist in a person's disability. The problem has become
significant in rental housing. AB 2760 will require a
prescription from a mental health professional for the need
of a companion or support animal and require that the
animal and its owner abide by simple rules that protect the
health and safety of the apartment property and other
residents.
ARGUMENTS IN OPPOSITION: In addition to advocates for tenants
and disabled persons, the Humane Society of the United States
opposes this bill because it may lead to people having to choose
between having a place to live and giving up their animals.
According to HSUS:
We oppose AB 2760 because of its harmful interference with
the human-animal bond, as well as its failure to
acknowledge and account for the very powerful role
AB 2760
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companion animals play in assisting those with
disabilities.
AB 2760 will force more people to choose between their home
and their companion animals, who in this case serve a
critical role as assistance animals. Assistance animals are
a different legal classification from "pets" as defined in
federal law. This bill seeks to impermissibly narrow that
federal law for the convenience of housing operators, while
increasing the likelihood for housing providers who abide
by the language in this bill to violate federal fair
housing and disability anti-discrimination laws.
Accordingly, we respectfully request that you reject this
short-sighted, discriminatory bill.
The Rehabilitation Act of 1973, The Fair Housing Amendments
Act of 1988 (FHA) and The Americans with Disabilities Act
of 1990 (ADA) are sacred federal laws that prevent
discrimination against those with disabilities in their
homes. AB 2760 is an attempt by the housing industry to
subvert those broad protections and allow more landlords to
deny housing to people with assistance animals. This is not
surprising given the multi-family housing industry's track
record on pet policies, which is extremely restrictive on
allowing pets, commonly restricting by arbitrary factors
such as weight or breed. Federal anti-discrimination laws
are a saving grace for people forced by these harsh and
baseless policies into an unthinkable choice - their home
or their pet.
REGISTERED SUPPORT / OPPOSITION:
Support
California Association of Realtors (sponsor)
Apartment Association, California Southern Cities
AB 2760
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Apartment Association of Orange County
California Apartment Association
East Bay Rental Housing Association
North Valley Property Owners Association
San Diego County Apartment Association
Western Manufactured Housing Communities (if amended)
Opposition
ASPCA
Best Friends Animal Society
Humane Society of the United States
Law Foundation of Silicon Valley
Marin Humane Society
National Housing Law Project
San Diego Humane Society
San Francisco SPCA
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Social Compassion in Legislation
State Humane Association of California
Tenants Together
Western Center on Law and Poverty
Analysis Prepared by:Anthony Lew & Navnit Bhandal / JUD. / (916)
319-2334