BILL ANALYSIS                                                                                                                                                                                                    Ó



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          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  








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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








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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