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§ 12179. Denial of Reasonable Accommodation or Reasonable Modification.

2 CA ADC § 12179BARCLAYS OFFICIAL CALIFORNIA CODE OF REGULATIONS

Barclays Official California Code of Regulations Currentness
Title 2. Administration
Division 4.1. Department of Fair Employment and Housing
Chapter 5. Fair Employment and Housing Council
Subchapter 7. Discrimination in Housing
Article 18. Disability
2 CCR § 12179
§ 12179. Denial of Reasonable Accommodation or Reasonable Modification.
(a) A requested accommodation or modification may be denied if:
(1) The individual on whose behalf the accommodation or modification was requested is not an individual with a disability; or
(2) There is no disability-related need for the requested accommodation or modification (in other words, there is no nexus between the disability and the requested accommodation or modification).
(b) In addition, a requested accommodation may be denied if:
(1) The requested accommodation would constitute a fundamental alteration of the services or operations of the person who is asked to provide the accommodation;
(2) The requested accommodation would impose an undue financial and administrative burden on the person who is asked to provide the accommodation;
(3) The requested accommodation would constitute 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 such risks cannot be sufficiently mitigated or eliminated by another reasonable accommodation, pursuant to the following:
(A) A determination that an accommodation 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, not on mere speculation or stereotype about the requested accommodation or a particular disability or individuals with disabilities in general;
(B) The assessment of whether the specific accommodation in question 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 objective evidence, and not unsubstantiated inferences. The evidence must be sufficiently recent as to be credible. The assessment must consider:
(i) The nature, duration, and severity of the risk of a direct threat to the health and 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 additional or alternative reasonable accommodations that will eliminate the direct threat to the health or safety of others or substantial physical damage to the property of others; or
(4) If a support animal, as defined in subsection 12005(d)(1), is requested as a reasonable accommodation, the request may be denied if it would constitute a direct threat to the health or safety of others or would cause substantial physical damage to the property of others under subsection 12185(d)(9).
(c) In addition, a requested modification may be denied pursuant to section 12181 if:
(1) The requestor refuses to pay for, or to arrange payment for or construction of, the modification, unless the owner is obligated to pay for the modification pursuant to section 12181(h);
(2) The proposed modification is not reasonable;
(i) A modification is reasonable if it does not involve a fundamental alteration in the services or operations of the person who is asked to provide the modification or an undue financial and administrative burden on the person or persons paying for the modification under section 12181(h).
(3) The requestor refuses to provide a reasonable description of the proposed modification or reasonable assurances that the work will be done in a competent (“workmanlike”) manner and that any required building permits will be obtained, so long as the assurances meet the requirements of section 12181;
(4) In the case of a rental, the requestor refuses to commit to restoring interior modifications to condition that existed before the modification, reasonable wear and tear excepted, if such a restoration is reasonable. Whether a requirement for restoration of an interior modification is reasonable is a case-by-case determination. The tenant is obligated to restore those portions of the interior of the dwelling to their previous condition only where it is reasonable to do so and where the housing provider has requested the restoration obligation as part of the finalization of the modification arrangements. The tenant is not responsible for expenses associated with reasonable wear and tear. In general, if the modifications do not affect the housing provider's or a subsequent tenant's use or enjoyment of the premises, the tenant cannot be required to restore the modifications to their prior state. Another factor for determination of whether restoration is reasonable is if the next tenant may need the modification. A housing provider may choose to keep the modifications in place at the end of the tenancy.
(i) This provision does not apply to modifications to the exterior or common or public use portions of the housing accommodation or non-rental situations because restorations are not required in those situations.
(ii) This provision does not apply to modifications covered by subsections 12181(e) (common interest developments), 12181(h) (certain subsidized housing), or 12181(m) (purchase of a for-sale housing accommodation).
(5) In the case of a rental, the requestor refuses to pay reasonable amounts into an interest-bearing escrow account, when such an account is permitted to be required and complies with the terms of section 12181, to ensure with reasonable certainty that funds will be available to pay for restoration of interior modifications, when such restoration is required.
(i) This provision does not apply to modifications to the exterior or common or public use portions of the housing accommodation or non-rental situations.
(ii) Any such payments must be negotiated between the owner and the requestor and must allow payment of reasonable amounts over a reasonable time period, in a total amount not to exceed the cost of the restorations.
(d) The determination of whether an accommodation poses an undue financial and administrative burden under subsection 12179(b)(2), or whether a modification poses an undue financial and administrative burden under subsection 12179(c)(2)(i), must be made on a case-by-case basis and must consider various factors including:
(1) The cost of the requested accommodation or the cost of a requested modification if the person considering the request is paying for the modification pursuant to section 12181(h);
(2) The financial resources of the person or persons who have a duty under the Act to provide the accommodation or the financial resources of that person or persons if they are the persons obligated to pay for the modification pursuant to section 12181(h);
(3) The benefits that a proposed alternative accommodation or modification would provide to the individual with a disability;
(4) The availability of alternative accommodations or modifications that would effectively meet the disability-related needs of the individual with a disability;
(5) Where the entity being asked to make the accommodation or the entity being asked to pay for the modification under section 12181(h) is part of a larger entity, the structure and overall resources of the larger organization, as well as the financial and administrative relationship of the entity to the larger organization. In general, a larger entity with greater resources would be expected to make accommodations and modifications requiring greater effort or expense than would be required of a smaller entity with fewer resources; and
(6) Whether the need for the accommodation or modification arises from the owner's failure to develop, maintain or repair the property as required by law or contract, or to otherwise comply with related legal obligations such as circumstances covered by California building codes or state or federal accessibility design and construction standards, in which case the defenses of fundamental alteration and undue financial and administrative burden do not apply. For example:
(i) Example of circumstance where modification is a repair required by building codes or standards: Bruce is a person with a mobility disability who requires the use of a handrail on the stairs in his dwelling unit but the existing handrail is broken. Bruce requests, as a reasonable modification, that the handrail be repaired or replaced. The owner must consider the request under these regulations, including sections 12176 through 12181, and specifically subsection 12179(d)(6). Because the California housing codes generally require proper maintenance of accessibility and structural features, the modification is reasonable because failing to repair the railing also violates the duty to maintain the property. Therefore, the owner is responsible for repairing or replacing the handrail at the owner's expense.
(ii) Example of circumstance where modification involves accessible feature required at time of construction or alteration: Ang is a tenant with a disability who uses a wheelchair and resides in a ground floor apartment in a non-elevator multi-family building that was built in 1998. Buildings built for first occupancy after March 13, 1991 are covered by the design and construction requirements of the Fair Housing Act. Under the Fair Housing Act, all ground floor units in this building at the time it was built must meet the minimum accessibility requirements of the Act. The doors in the apartment are not wide enough for passage using a wheelchair, in violation of the statutory design and construction requirements, but can be made compliant through retrofitting. Ang requests a reasonable modification to widen the doors in the apartment. The owner must consider the request under these regulations, including sections 12176 through 12181, and specifically subsection 12179(d)(6). Assuming the request is reasonable, the owner would be responsible for paying for the cost of the modifications due to the building's failure to comply with the statutory requirements that applied to it when it was constructed.
(iii) Example of circumstance where modification is not otherwise covered by building codes or standards: Han is a person with a disability who uses a wheelchair and lives in a building built in 1990. There were no applicable statutory accessible design and construction standards that applied to the building at the time of its construction. The doors in Han's apartment are not wide enough for passage using a wheelchair, but can be made so through retrofitting. Han requests a reasonable modification to widen the doors. The owner must consider the request under these regulations, including sections 12176 through 12181. Assuming the request is reasonable, the owner can require Han to pay for the cost of the reasonable modifications, but does not have to do so.
(e) A fundamental alteration under subsections 12179(b)(1) or (e)(2) is a requested accommodation or modification that would change the essential nature of the services or operations of the person being asked to provide the accommodation or modification. For example, if a landlord does not normally provide shopping for residents, a reasonable accommodation request to shop for an individual with a disability could constitute a fundamental alteration.
(f) A person cannot deny a request for a reasonable accommodation or modification based on the person's or another individual's fears or prejudices about the individual's disability, nor can a denial be based on the fact that provision of a reasonable accommodation or modification might be considered unfair by other individuals or might possibly become an undue burden if extended to multiple other individuals who might request accommodations or modifications.
Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921, 12926, 12926.1, 12927, 12955 and 12955.3, Government Code; and Auburn Woods I Homeowners Ass'n v. Fair Employment and Housing Com'n (2004) 121 Cal.App.4th 1578.
HISTORY
1. New section filed 9-16-2019; operative 1-1-2020 (Register 2019, No. 38).
2. Change without regulatory effect amending subsections (a)(4) and (b) filed 12-12-2019 pursuant to section 100, title 1, California Code of Regulations (Register 2019, No. 50).
2. Amendment of section heading and section filed 11-19-2021; operative 1-1-2022 (Register 2021, No. 47).
This database is current through 4/22/22 Register 2022, No. 16
2 CCR § 12179, 2 CA ADC § 12179
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