Cal. Code Regs. Tit. 2, § 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.
Notes
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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