Sec. 12185 - Assistance Animals

ยง 12185. Assistance Animals

(a) This section provides guidance as to assistance animals, as defined in subsection 12005(d). This includes both service animals, as defined in section 12005(d)(1), and support animals as defined in section 12005(d)(2).

(b) Service Animals. Persons, including tenants, occupants, invitees, owners, and others, are permitted to have service animals as defined in section 12005(d)(1) in all dwellings (including common use and public use areas), residential real estate, and other buildings involved in residential real estate transactions, subject to the restrictions set forth in subsection (d) below. The only permissible questions that can be asked of an individual to determine if the animal is a service animal are:

1) "Are you an individual with a disability?" and

2) "What is the disability-related task the animal has been trained to perform?" It is not permitted to ask the individual with a disability to demonstrate the task.

(c) Support Animals. Individuals with disabilities who have a support animal as defined in section 12005(d)(2) may request a reasonable accommodation related to the individual's need for the support animal in dwellings (including common use and public use areas) and residential real estate, and other buildings involved in residential real estate transactions.

(1) The standards, procedures, and defenses in sections 12176 through 12180 for evaluating a request for a reasonable accommodation apply to a request to have a support animal as a reasonable accommodation.

(2) A support animal certification from an online service that does not include an individualized assessment from a medical professional is presumptively considered not to be information from a reliable third party under section 12178(f). An individualized assessment for purposes of this subsection means an assessment based on information that demonstrates that the individual has a disability, describes the needed accommodation (including the species of animal), and describes the relationship between the individual's disability and how the requested accommodation is necessary to afford the individual with a disability equal opportunity to use and enjoy a dwelling or housing opportunity. A person provided with such a certification must provide an opportunity to the individual requesting the accommodation to provide additional information that meets the requirements of section 12178 before denying a request for reasonable accommodation.

(d) All Assistance Animals. Provisions applicable to all assistance animals as defined in section 12005(d), including service animals and support animals, include:

(1) An individual with an assistance animal may also be covered by other legal obligations relating to assistance animals, such as the American with Disabilities Act, section 504 of the Rehabilitation Act, Civil Code sections 51, 54.1, 54.2. and 54.7, and Government Code section 11135, which include additional requirements or prohibitions relating to assistance animals, and may further restrict the nature and type of inquiry that may be made concerning assistance animals;

(2) An individual with an assistance animal shall not be required to pay any pet fee, additional rent, or other additional fee, including additional security deposit or liability insurance, in connection with the assistance animal;

(3) An individual with an assistance animal may be required to cover the costs of repairs for damage the animal causes to the premises, excluding ordinary wear and tear;

(4) An individual may have more than one assistance animal. Each animal must be individually determined to meet the requirements in this article. When an individual already has a support animal as a reasonable accommodation and requests an additional support animal as a reasonable accommodation, the person considering the subsequent request may consider whether the cumulative impact of multiple animals in the same dwelling unit constitutes an undue burden or fundamental alteration;

(5) No breed, size, and weight limitations may be applied to an assistance animal (other than specific restrictions relating to miniature horses as service animals under the Americans with Disabilities Act);

(6) Reasonable conditions may be imposed on the use of an assistance animal to ensure it is under the control of the individual with a disability or an individual who may be assisting the individual with a disability, such as restrictions on waste disposal and animal behavior that may constitute a nuisance, so long as the conditions do not interfere with the normal performance of the animal's duties. For example, a leash requirement may interfere with the ability of a guide dog, signal dog, or service dog to assist an individual, in which case the animal may be under voice control or otherwise responsive. Similarly, a "no noise" requirement may interfere with a dog's job of barking to alert a blind individual to a danger or someone at the door, but incessant barking all night long or when the individual is not at home may violate reasonable restrictions relating to nuisance. Any such conditions may not be more restrictive than those imposed upon other animals on the property;

(7) Animal vests, identification cards, or certificates are not in and of themselves documentation of either disability or the need for a reasonable accommodation, other than as set forth in subsection (c)(2) above;

(8) If an individual with a disability is denied permission to have an assistance animal, the individual is still entitled to all the rights and privileges that otherwise would have been accorded the individual, so long as the individual no longer has the animal; and

(9) An assistance animal need not be allowed if the animal constitutes a direct threat to the health or safety of others (i.e. a significant risk of bodily harm) or would cause substantial physical damage to the property of others, and that harm cannot be sufficiently mitigated or eliminated by a reasonable accommodation, including under the following provisions:

(A) In addition to the reasons set out in section 12179 for denial of a request for a reasonable accommodation for a support animal as defined in section 12005(d)(2), a support animal may be denied if:

(i) The specific support animal in question poses a direct threat to the health or safety of others that cannot be sufficiently mitigated or eliminated by another reasonable accommodation; or

(ii) The specific support animal in question would cause substantial physical damage to the property of others that cannot be sufficiently mitigated or eliminated by another reasonable accommodation;

(B) A determination that an assistance animal as defined in section 12005(d) poses a direct threat to the health or safety of 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 actual conduct. The determination cannot be made on evidence that is so old it is not credible or reliable, or on mere speculation or fear about the types of harm or damage an animal may cause or on evidence about harm or damage that other animals have caused.

(C) The assessment of whether the assistance animal as defined in section 12005(d) poses a direct threat to the health or safety of others or would cause substantial physical damage to the property of others must consider:

(i) The nature, duration, and severity of the risk of a direct threat to the health or safety of others or of substantial physical damage to the property of others;

(ii) The likelihood that a direct threat to the health or safety of others or substantial physical damage to the property of others will actually occur; and

(iii) Whether there are any reasonable accommodations that will eliminate the direct threat to the health or safety of others or substantial physical damage to the property of others. The reasonable accommodation provisions in Section 12176 through Section 12180 must be used to determine whether there is another or additional reasonable accommodation that would sufficiently mitigate or eliminate the problems creating the direct threat.

(D) Relevant evidence in determining whether an assistance animal as defined in section 12005(d) imposes a direct threat includes whether there is evidence that the animal in question is currently engaging in dangerous conduct or has a recent history of overt dangerous acts, as described under Food & Agric. Code section 31601 et seq. A dog that has been finally determined by a court of law to a be "potentially dangerous dog" or "vicious dog" pursuant to Food & Agric. Code section 31601 et seq. shall presumptively be considered to pose a direct threat to the health or safety of others.

(1. New section filed 9-16-2019; operative 1-1-2020 (Register 2019, No. 38).)

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921, 12926, 12926.1, 12927, 12955 and 12955.3, Government Code; Sections 54.1 and 54.2, Civil Code; and Auburn Woods I Homeowners Ass'n v. Fair Employment and Housing Com'n (2004) 121 Cal.App.4th 1578.

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