FLOORBOOK MEMO House Committee on the Judiciary
Com. Sub. for H.B. 2387
Prepared by: Brian J. Skinner
(January 23, 2014) Phone: 340-340-3258
email: brian.skinner@wvhouse.gov
SPONSORS: Delegates Marshall and Moore
SHORT TITLE: Relating to the West Virginia Fair Housing Act.
DATE INTRODUCED: February 13, 2013
IDENTICAL/SIMILAR BILLS: None.
CODE SECTIONS AFFECTED: W.Va. Code §5-11A-3, §5-11A-5, §5-11A-6 §5-11A-7 (amend)
CHAIRMAN’S SUMMARY:
A. EXISTING LAW: The West Virginia Fair Housing Act makes it unlawful to discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a disability. Discrimination based on a person’s disability includes a refusal to make reasonable accommodations in rules, policies, practices or services when such the accommodations may be necessary to afford such the person equal opportunity to use and enjoy a dwelling. As a result of a decision by the W.Va. Supreme Court of Appeals there is a discrepancy between the manner in which the federal and state Fair Housing Acts are applied.
B. COMMITTEE SUBSTITUTE: The bill amends the West Virginia Fair Housing Act to conform it with the federal Fair Housing Act with regard to assistive or support animals as follows:
• provides that a disabled person may be required to submit documentation of the disability related need for the assistance animal;
• prohibits a requirement that a person submit or provide access to medical records or medical providers or to provide detailed or extensive information or documentation of a person's physical or mental impairments;
• clarifies when a person with a disability may be denied the accommodation of an assistance animal;
• requires that a determination that an assistance animal poses a direct threat of harm to others or would cause substantial physical damage to the property of others be based on an individualized assessment; and
• prohibits a request for a reasonable accommodation to be unreasonably denied, or conditioned on payment of a fee or deposit, or be unreasonably delayed.
DETAILED ANALYSIS:
A. EXISTING LAW: The West Virginia Fair Housing Act makes it unlawful to discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a disability of a buyer or renter; a person residing in or intending to reside in that dwelling after it is so sold, rented or made available; or any person associated with that buyer or renter. W.Va. Code § 5-11A-5(f)(1).
Additionally, it is unlawful to discriminate against any person in the terms, conditions or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such the dwelling, because of a disability a person residing in or intending to reside in that dwelling after it is so sold, rented or made available or any person associated with that person. W.Va. Code § 5-11A-5(f)(2).
Discrimination based on a person’s disability includes:
• A refusal to permit, at the expense of the disabled person, reasonable modifications of existing premises occupied or to be occupied by such the person if such the modifications may be necessary to afford such the person full enjoyment of the premises, except that, in the case of a rental, the landlord may where it is reasonable to do so condition permission for a modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted; W.Va. Code § 5-11A-5(f)(3)(A) or
• A refusal to make reasonable accommodations in rules, policies, practices or services when such the accommodations may be necessary to afford such the person equal opportunity to use and enjoy a dwelling. W.Va. Code § 5-11A-5(f)(3)(B).
B. THE BILL: Substantively, the bill amends the provisions of W.Va. Code § 5-11A-5 to make it unlawful to refuse to make reasonable accommodations in rules, policies, practices or services regarding animals for people with disabilities who need assistive animals. § 5(f)(10).
The bill defines the term "assistance animal" to mean any service animal or emotional support animal with or without specific training or certification, or both, which is kept and used by a person with a disability to perform one or more major life activities or to ease or ameliorate the effects of its master's disability. §2(p).
The bill provides that for those rules, policies, practices or services regarding pets that are subject to the reasonable accommodation requirements of the section and that in connection with a request for reasonable accommodation to the rules, policies or services, a person with a disability may be required to provide supporting material documenting the need for the assistance animal. § 5(10)(A).
A person with a disability may be refused the accommodation of an assistance animal if there is credible evidence that the assistance animal would be a direct threat to the health or safety of others. § 5(10)(B).
A person with a disability who keeps or uses an assistance animal is responsible for seeing that the assistance animal lives in the dwelling of the person without disturbing the property or quiet enjoyment of the property owner or the person's neighbors and is liable for any damage caused by the assistance animal. § 5(10)(C).
Finally, the bill makes drafting changes to the language of the current statute to conform it to current drafting conventions. For example, the term “handicapped” is changed to “disability”.
C. STAFF SUGGESTED COMMITTEE SUBSTITUTE: The staff suggested committee substitute is not intended as an substantive modification to the introduced bill, but is intended to clarify and flesh out those provisions so that they more specifically track requirements of the federal Fair Housing Act.
First, the committee substitute modifies the definition of “assistive animal” to mean any service, therapy or support animal with or without specific training or certification, that works, provides assistance, or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviate one or more identified symptoms or effects of a person's disability. W.Va. Code § 5-11A-3(p).
Next, it slightly modifies the language in § 5(f)(10)(A) to provide that if a disabled person makes a request for reasonable accommodation to the rules, policies or services, he or she may be required to submit documentation of the disability related need for the assistance animal. It further clarifies what will be considered sufficient documentation. § 5(f)(10)(A)(I).
The committee substitute also prohibits a person with a disability from being required to be required to submit or provide access to medical records or medical providers or to provide detailed or extensive information or documentation of a person's physical or mental impairments. W.Va. Code § 5-11A-5(f)(10)(ii).
The committee substitute clarifies when a person with a disability may be denied the accommodation of an assistance animal. § 5(f)(10)(B).
It also requires that a determination that an assistance animal poses a direct threat of harm to 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. § 5(f)(10)(C).
Finally, it prohibits a request for a reasonable accommodation to be unreasonably denied, or conditioned on payment of a fee or deposit or other terms and conditions applied to applicants or residents with pets, and a response may not be unreasonably delayed. § 5(f)(10)(D)
D. COMMITTEE AMENDMENTS: The committee amended the staff suggested committee substitute to limit the size of an assistance animal to under 150 lbs and to clarify what is sufficient for documentation of the disability related need for the assistance animal.
SECTION DIRECTORY:
ARTICLE 11A. WEST VIRGINIA FAIR HOUSING ACT.
§5-11A-3. Definitions.
The section includes definitions of terms used throughout the article.
§5-11A-5. Discrimination in sale or rental of housing and other prohibited practices.
This section includes prohibited acts.
§5-11A-6. Discrimination in residential real estate-related transactions.
This section makes it unlawful to for persons or businesses that engage in residential real estate-related transactions to discriminate against any person in making available such a transaction or in the terms or conditions of such a transaction because of race, color, religion, sex, blindness, handicap disability, familial status, ancestry or national origin.
§5-11A-7. Discrimination in provision of brokerage services.
This section makes it unlawful to discriminate in providing access to or membership or participation in any multiple listing service, real estate broker's organization or other service, organization or facility relating to the business of selling or renting dwellings.
COMMENTS
A. CONSTITUTIONAL ISSUES: None identified.
B. GOVERNMENT AGENCIES AFFECTED: WV Human Rights Commission and the Courts.
C. TITLE ANALYSIS: The title appears to be within constitutional parameters. However, the staff suggested committee substitute includes a reformed title.
D. DRAFTING ISSUES OR OTHER COMMENTS: None.
E. EFFECTIVE DATE: 90 days