Hawaii Administrative Rules › Title 12 - DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS › Chapter 46 - PROCEDURE ON COMPLAINTS › Subchapter 20 - REAL PROPERTY TRANSACTION DISCRIMINATION › Section 12-46-318 - Defenses

Current through June, 2024
(a)
Adverse impact.
It may be a
				defense to a claim that a facially-neutral practice, policy, or action has the
				effect of discriminating against a person because of a protected basis for an
				owner, any other person, real estate broker, or salesperson charged with
				discrimination to establish that there is a business necessity for the
				practice, policy, or action.
(b)
Specific activity permitted.
It may be a defense to a claim that a
				practice, policy, or action discriminates against a person because of a
				protected basis for an owner, any other person, real estate broker, or
				salesperson charged with discrimination to establish that the alleged
				discriminatory practice, policy, or action is specifically permitted under this
				subchapter or by sections
				515-4 or
				515-8,
				HRS.
(c)
Refusal to allow the
				use of a particular assistance animal.
An owner or any other person
				engaging in a real estate transaction may refuse to allow a person with a
				disability the use of a particular assistance animal if
(1) The animal poses a direct threat to the
				health or safety of others and the animal's owner or handler takes no effective
				action to control the animal so that the threat is mitigated or
				eliminated;
(2) The animal would
				cause substantial physical damage to the property of others that cannot be
				reduced or eliminated by a reasonable accommodation;
(3) The presence of the assistance animal
				would pose an undue financial and administrative burden to the owner or person
				engaging in a real estate transaction; or
(4) The presence of the assistance animal
				would fundamentally alter the nature of the operations of the owner or person
				engaging in a real estate transaction.
The determination of whether an assistance animal poses a
				  direct threat and whether the animal's owner or handler has taken effective
				  action to control the animal so that the threat is mitigated or eliminated,
				  must be based on an individualized assessment about the specific animal in
				  question, such as the animal's current conduct or recent history of overt acts.
				  The determination may not be based on the animal's species or breed. Factors to
				  be considered include: the nature, duration and severity of the risk of injury;
				  the probability that the potential injury will actually occur; whether
				  reasonable modifications of rules, policies, practices, procedures, or services
				  will reduce the risk; and whether the animal's owner has taken any action that
				  has reduced or eliminated the risk, such as obtaining specific training,
				  medication, or equipment for the animal. Denial of the use of a particular
				  animal does not preclude a request to use a different animal.
Example:
Michael, who lives in an apartment building that has a "no
				  pets" policy, has a disability and requires the use of Spot, an emotional
				  support dog. One day while Michael and Spot are riding in the elevator, Spot
				  lunges and bites a guide dog owned by Cindy, who is blind and is in the
				  elevator at the time. Spot therefore poses a direct threat to the health and
				  safety of others. If the direct threat can be mitigated, for example by having
				  Michael muzzle and hold Spot by a short leash when Spot is in common areas, and
				  by having Michael and Spot refrain from riding in the same elevator and being
				  in the same common areas as Cindy and her guide dog, Michael may continue to
				  use Spot. However, if the direct threat from Spot cannot be mitigated, or if
				  Spot's continued presence would cause an undue financial and administrative
				  burden, the apartment manager may deny Michael's use of Spot, though Michael
				  may then request the use of a different emotional support animal.