HAR §12-46-305. Discriminatory practices

It is a discriminatory practice for an owner or any other person engaging in a real estate transaction, or for a real estate broker or salesperson because of a person's protected basis: (1) To refuse to engage in a real estate transaction, evict, or terminate a tenancy; (2) To discriminate in the terms, conditions, enjoyment, or privileges of a real estate transaction, or in the furnishing of facilities or services in connection therewith; (3) To refuse to receive or fail to transmit a bona fide offer to engage in a real estate transaction from a person; (4) To refuse to negotiate for a real estate transaction with a person; (5) To represent to a person that real property is not available for inspection, sale, rental, or lease when, in fact, it is available, or to fail to bring a property 46-141 ( listing to the person's attention, or to refuse to permit the person to inspect real property, or to steer a person seeking to engage in a real estate transaction; (6) To discrimjnate against or deny a person access to, or membership or participation in any multiple listing service, real estate broker's organization, or facility involved either directly or indirectly in real estate transactions, or to discriminate against any person in the terms or conditions of such access, membership, or participation; (7) To engage in harassment; or (8) To institute or apply facially neutral policies or restrictions which result in a disparate adverse impact. (Eff 10/15/93; am 10/6/13; comp ] (Auth: HRS ~§368-3, 515-9 (7)) (Imp: HRS ~515-3) §12-46-306 Discrimination on the basis of disability. (a) It is a discriminatory practice for an owner or any other person engaging in a real estate transaction, or for a real estate broker or salesperson: (1) To refuse to engage in a real estate transaction or to deny equal opportunity to use and enjoy a housing accommodation with a person with a disability because the person uses an assistance animal. If the disability is not readily apparent, an owner or other person engaging in a real estate transaction may request information that verifies that the person has a disability, defined as a physical or mental impairment that substantially limits a major life activity. However, an owner or other person engaging in a real estate transaction may not request medical records or access to r ( L health care providers, and may not inquire as to the diagnosis, nature or severity of the person's disability. If the disability- related need for an assistance animal is not readily apparent, an owner or other person engaging in a real estate transaction may request verification that the assistance animal is needed to alleviate one or more symptoms of the person's disability. Verification may be provided by a letter or other communication from the person's treating health care professional, mental health professional, or social worker. Reasonable restrictions or prohibitions may be imposed upon the person with a disability regarding excessive noise or other problems caused by those animals including, but not limited to: (A) Observing applicable laws, including leash laws and pick-up laws; (B) Assuming responsibility for damage caused by the animal; (C) Cleaning the housing unit upon vacating, by fumigation, deodorizing, professional carpet cleaning, or other appropriate methods; (D) Cleaning the animal's waste; (E) Having the animal licensed with the county, if licensing is required by the county; (F) Having the animal vaccinated with documentation of the vaccination; (G) Having the animal under the control of the animal's owner or handler by use of harness, leash, tether, cage, carrier, or other physical control in common areas. If the nature of the person's disability makes physical control impracticable, or if physical control would interfere with the assistance r ( ( 2) that the animal provides, the owner or other person engaging in a real estate transaction may require that the animal be otherwise under the control of the animal's owner or handler by voice control, signals, or other effective means; or (fl) Any other reasonable restriction that would leave the housing accommodation in the condition it was in prior to the occupancy of the tenant with a disability, except for reasonable wear and tear; Example: Sarah, a condominium owner with an anxiety disorder, asks for an exception to her condominium association's "no pets" rule in order to keep an emotional support rabbit in her unit. Because Sarah's disability and need for an emotional support animal are not readily apparent, the condominium association may ask Sarah to provide verification of her disability and the disability-related need for the rabbit. Sarah provides a letter from her treating psychologist stating that Sarah has an impairment that substantially limits a major life activity and that the rabbit is needed to prevent or reduce the symptoms of that impairment. The accommodation is therefore needed to afford Sarah an equal opportunity to use and enjoy her condominium and is reasonable. The association must allow the rabbit as an accommodation but may impose reasonable restrictions on its use. To solicit or require as a condition of engaging in a real estate transaction that the buyer, renter, or lessee be tested for 46-H4 r ( human immunodeficiency virus (HIV) infection; (3) To refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a person with a disability equal opportunity to use and enjoy a housing accommodation, including public and common use areas; or Example: Kanoa Gardens is a three hundred unit apartment complex with four hundred fifty parking spaces which are available to tenants and guests on a "first come first served" basis. Paul applies for housing in Kanoa Gardens. Paul has a mobility impairment and is unable to walk more than a short distance and therefore requests that a parking space near his unit be reserved for him so he will not have to walk very far to get to his apartment. It is a violation of the law for the owner or manager of Kanoa Gardens to refuse to make this requested accommodation. Without a reserved space Paul may not be able to live in Kanoa Gardens at all or, when he has to park in a space far from his unit, might have great difficulty getting from his car to his apartment unit. The accommodation therefore is necessary to afford Paul an equal opportunity to use and enjoy a housing accommodation. The requested accommodation is reasonable because it is feasible and practical because of the number of unassigned parking spaces available. (4) To refuse to permit, at the expense of a person with a disability, reasonable modifications of existing premises, occupied or to be occupied by the person, if the proposed modifications may be necessary to ~6-145 r ( afford the person with a disability full enjoyment of the premises. Example: A tenant with a disability asks an owner or manager for permission to install grab bars in the bathroom at his or her own expense. It is necessary to reinforce the walls with blocking between studs in order to affix the grab bars. It is unlawful for the owner or manager to refuse to permit the tenant, at the tenant's own expense, from making the modifications necessary to add the grab bars. An owner, any other person engaging in a real estate transaction, real estate broker, or salesperson may grant permission for a modification on the condition that the person with a disability give: (A) A reasonable description of the proposed modifications; (B) Reasonable assurances that the modifications will be done in a workmanlike manner and that any required building permits will be obtained; and (C) Reasonable assurances that the person with a disability will restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted; however, restoration will not be necessary of those modifications which do not interfere with the owner's or next tenant's use and enjoyment of the premises. Example: An owner or manager may require the creation of an escrow fund and the payment 46-1~6 r ( L of money into the fund to cover the costs of restoring the premises. Any portion of the fund, including interest, that is not required for the restoration of the premises will be reimbursed to the person with a disability, who paid into the fund, within a reasonable time. Example: If a person with a disability receives permission to put in grab bars and widen the doorway, it is not necessary to remove the blocking or narrow the doorway to restore the premises because the reinforced walls and wider doorway will not interfere with the owner's or next tenant's use and enjoyment of the premises. However, the tenant can be required to remove the grab bars and restore the wall to the condition that existed before the modification, reasonable wear and tear excepted. (b) All covered multifamily housing accommodations, designed and constructed for first occupancy after March 13, 1991, shall: (1) Be designed and constructed to have at least one accessible entrance, unless it is impractical to do so because of the terrain or unusual characteristics of the site; and Example: A real estate developer plans to construct six covered multifamily housing accommodations on a site with a hilly terrain. Because of the terrain, it will be necessary to climb a long and steep stairway in order to enter the dwellings. Since there is no practical way to provide an accessible route to any of the housing accommodations, one need not be provided. 46-1~7 ( (2) If built with an accessible building entrance, be designed and constructed in such a manner that: (A) Public use and common use portions of the housing accommodations, including recreation and laundry rooms, are accessible to and usable by persons with disabilities; (B) All doors designed to allow passage into and within all premises are sufficiently wide to allow passage by persons who use wheelchairs; (C) All premises contain an accessible route into and through the housing accommodation; (D) Light switches, electrical outlets, thermostats, and other environmental controls are in accessible locations; (E) Reinforcements in the bathroom walls allow later installation of grab bars; and (F) Kitchens and bathrooms are accessible to persons who use wheelchairs. Example: A developer plans to construct a one hundred unit condominium apartment building with one elevator. In accordance with the law, the building has at least one accessible route leading to an accessible entrance. All one hundred units are covered multifamily housing accommodations and they all must be designed and constructed so that they comply with the accessibility requirements of the law. For purposes of this subsection, a multifamily housing accommodation shall be deemed to be designed and constructed for first occupancy on or before March 13, 1991, if it is occupied by that date or if the last ( building permit or renewal thereof for the covered multifamily housing accommodation is issued by a state, county or local government agency on or before June 15, 1990. Accessibility will be determined based upon ANSI A117.1-1986 or the Fair Housing Accessibility Guidelines. The burden of establishing impracticality because of terrain or unusual site characteristics is on the owner, person engaging in a real estate transaction, or real estate broker or salesperson. (c) An owner or other person engaging in a real estate transaction is not required to make a reasonable accommodation to a person who meets the definition of disability solely under the "record of impairment" or "regarded as" prongs of the definition of disability in section 12-46-302. (Eff 10/15/93; am 5/3/99; am 10/6/13; comp ) (Auth: HRS §§368-3, 515-9 (7) (Imp: HRS §515-3) §12-46-307 Discrimination on the basis of familial status. It is a discriminatory practice for an owner or any person engaging in a real estate transaction, or for a real estate broker or salesperson to: (1) Refuse to engage in a real estate transaction with a person because of familial status; (2) Impose house rules, by-laws, or other provisions, established by a condominium association, cooperative association, apartment complex tenants', owners', or leaseholders' association, or any other organization or association, which by intent or effect discriminate against a person because of familial status; Example: r ( ( 3) House rules (e.g. "two person limit to a bedroom") which have the effect of discriminating ("adverse impact") against persons with children (because the overall square footage is large enough under housing code for three persons) are unlawful unless the rule can be justified by establishing a business necessity. House rules (e.g. "no families with children") which intentionally discriminate against persons with children are unlawful unless there is a specific exemption for the rule under this subchapter or section 515-4 or 515-8, HRS. Impose occupancy limits on a housing accommodation sought by a person because of familial status, unless such limits are justified by establishing a business necessity; Example: A person with children seeking a housing accommodation cannot be denied the accommodation on the basis of an occupancy limit unless it is based upon a compelling and well established public purpose, such as a county building code established to promote public safety, and there are no other reasonable means to serve the same purpose with less discriminatory impact. (4) Impose against a person because of familial status, by way of any action to evict, terminate the tenancy, or refuse to engage in a real estate transaction, occupancy limits on a housing accommodation which is currently occupied by such person, unless t;6-150 ( justified by business necessity by demonstrating that such limits are required by county building codes established to promote public safety, and if the person has asked the owner, person engaging in a real estate transaction, real estate broker, or salesperson to apply for a variance or exemption from the county, the application for variance or exemption has been denied; Example: A current tenant whose family size exceeds occupancy limits, which are required by a county building code established to promote public safety, may ask an owner, any person engaging in a real estate transaction, or real estate broker or salesperson to apply for a variance or exemption to the county building code prior to being evicted from the accommodation. The owner may apply for the variance or authorize the tenant to do so, in which case the owner shall reasonably assist the tenant and provide any necessary documents in the owner's possession. If denied by the county agency, the occupancy limit can be used as the basis to evict. The tenant asking that the exemption be sought can be required to pay any filing fee and associated costs. (5) Restrict or prohibit the use by children of common use or public use areas or recreational facilities, unless based upon business necessity; ½6-151 ( (6) Designate separate areas for use by children so as to justify separate areas where children are excluded; (7 ) Require the payment of a higher security deposit, surcharge, or additional fees because of familial status; or ( 8) Require a liability children. person to sign a waiver of as a condition of occupancy [Eff 10/15/93; comp 9 (7)) ] (Auth: HRS §§368-3, (Imp: HRS ~515-3) by 515-