Hawaii Administrative Rules 20
Subchapter 20 (Real Property Transaction Discrimination)
REAL PROPERTY TRANSACTION DISCRIMINATION
§12-46-301 General provisions. The purpose of this subchapter is to implement laws prohibiting discrimination in real property transactions toward the goal of eliminating such discrimination and to implement changes made by Act 171, Session Laws of Hawaii 1992, to conform state law to Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Amendments Act of 1988. Chapter 515, HRS, prohibits discriminatory practices by an owner, any person engaging in a real property or real estate transaction, or a real estate broker or salesperson against another person because of a protected basis. The examples are used to provide guidance to the public and only illustrate the particular point or principle to which they relate in the rules. They should not be taken out of context as statements of policy that would apply in different situations. To the greatest extent possible, the commission will interpret the rules consistent with the examples, however, the commission shall review each case on an individual basis in an effort to seek an equitable application of this subchapter. [Eff 10/15/93] (Auth: HRS §§368-3; 515-9(7)) (Imp: HRS §368-1; HRS Chapter 515)
§12-46-302 Definitions. As used in this subchapter, unless the context otherwise requires:
“Accessible” means a housing accommodation constructed in conformity with the appropriate requirements of ANSI A117.1-1986 or the Fair Housing Accessibility Guidelines issued by the Department of Housing and Urban Development.
“Age” means over the age of majority or emancipated minors.
“Ancestry” means national origin and includes reasons related to ancestry, such as:
(1) Marriage to or association with persons of an ancestral group;
(2) Membership in or association with an organization identified with or seeking to promote the interests of an ancestral group;
(3) Attendance or participation in schools, churches, temples, or mosques, generally used by persons of an ancestral group; and
(4) Because an individual’s name or spouse’s name is associated with an ancestral group.
“ANSI A117.1-1986” means the 1986 edition of the American National Standards Institute for buildings and facilities providing accessibility and usability for disabled persons.
“Application” means written, oral, or telephone inquiries.
“Assistance animal” means an animal that is needed to perform disability-related work, services or tasks for the benefit of a person with a disability, or is needed to provide emotional support that alleviates one or more identified symptoms or effects of a person’s disability. Assistance animals may include, but are not limited to, service animals, therapy animals, comfort animals or emotional support animals. Assistance animals may have formal training or may be untrained, any may include species other than dogs.
“Business necessity” means a compelling and well established public purpose which also establishes that there is no reasonable alternative means of serving the same purpose with less discriminatory impact.
“Commission” means the civil rights commission.
“Common use areas” means rooms, spaces, or elements inside or outside of a housing accommodation that are made available for the use of residents or the guests thereof. These areas include hallways, lounges, lobbies, laundry rooms, refuse rooms, mail rooms, recreational areas, and passageways among and between housing accommodations.
“Complainant” means any person, including a tester or associates of a person with a protected basis, who claims to have been injured by a discriminatory real estate transaction practice or who believes that such person will be injured by a discriminatory real estate transaction practice that is about to occur and files a complaint in accordance with chapter 368, HRS, with the commission. The law does not require such persons to expose themselves to the injury involved with the actual act of discrimination before filing a complaint.
“Controlled substance” means any drug, substance, or immediate precursor included in schedules I through V of part II of chapter 329, HRS.
“Covered multi-family housing accommodations”means buildings consisting of four or more housing accommodations, if such buildings have one or more elevators; and ground floor dwelling units in other buildings consisting of four or more housing accommodations.
“Direct threat” means a significant risk of substantial harm to the health or safety of the person or others that cannot be mitigated or eliminated by a reasonable accommodation based upon an individualized assessment. The risk of harm should be identifiable, substantial, current, or probable and not a remote or speculative risk.
“Disability” means having a physical or mental impairment which substantially limits one or more major life activities, having a record of such impairment, or being regarded as having such an impairment, including persons who have HIV or AIDS. The term does not include current illegal use of or addiction to a controlled substance, or alcohol or drug abuse that threatens the property or safety of others.
“Discriminatory practice” means a practice designated as discriminatory under the terms of this subchapter.
“Domiciled” means residence or physical presence at a location and the intent to remain, and includes a minor child staying in a housing accommodation on a regular basis with a parent or relative because of visitation rights granted by a court, or because of written or unwritten permission from a legal parent.
“Fair Housing Accessibility Guidelines” means guidelines issued by the Department of Housing and Urban Development on March 6, 1991 to provide technical guidance on designing housing accommodations as required by the Fair Housing Amendments Act of 1988.
“Familial status” means the presence of children under eighteen years old in a family, including, but not limited to, a person having custody and domiciled with a minor child or children; a person domiciled with a minor child or children who has written or unwritten permission from the legal parent, such as a hanai relationship; a person who is pregnant; or any person who is in the process of securing legal custody of a minor child or children.
“Hanai relationship” includes a child who is taken permanently to reside, be educated, and reared by someone other than the natural parents, traditionally a grandparent or other relative, with the written or unwritten permission of the natural parents.
“Housing accommodation” means any improved or unimproved real property, or part thereof, which is used or occupied, or is intended, arranged, or designed to be used or occupied, as the home or residence of one or more individuals; any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as a residence by one or more families; any vacant land which is offered for sale or lease for the construction or location thereon of any building, structure, or portion thereof as the home or residence of one or more individuals; including, but not limited to, houses, apartments, town houses, mobile home parks, trailer courts, condominiums, cooperatives, and time-sharing properties.
“Legitimate non-discriminatory reason” means a bona fide and compelling justification for a practice, policy, or action established by objective proof or evidence, which standing alone would have resulted in the same practice, policy, or action.
“Limitation” or “limit” includes actions which exclude individuals or persons or result in creating a preference for an individual or person.
“National origin” refers to ancestry and may include the national origin of an ancestor.
“Person” means an individual, corporation, firm, association, society, community, assembly, inhabitant of a district or neighborhood, person known and unknown, the public generally, legal representative, partnership, receiver, trust, trustee, trustee in bankruptcy, the State, or any governmental entity or agency, labor organization, mutual aid company, joint stock company, unincorporated organization, management company, tenant association, fair housing organization, or fiduciary.
“Protected basis” means race, sex (including gender identity or expression), sexual orientation, color, religion, marital status, familial status, ancestry, disability, age, or HIV (human immunodeficiency virus) infection.
“Public use areas” means interior or exterior rooms or spaces of a housing accommodation that are made available to the general public. Public use may be provided at a housing accommodation that is privately or publicly owned.
“Real estate broker or salesperson” means a person, whether licensed or not, who, for or with the expectation of receiving a consideration, lists, sells, purchases, exchanges, rents, or leases real property; or who negotiates or attempts to negotiate any of these activities; or who purports to be engaged in these activities; or who negotiates or attempts to negotiate a loan secured or to be secured by a mortgage or other encumbrance upon real property; or who is engaged in the business of listing real property in a publication; or a person employed by or acting on behalf of any of these.
“Real estate transaction” means the advertising, sale, exchange, rental, lease, management, or use of real property, including, but not limited to, any actions related to real property after the advertising, sale, exchange, rental, or lease; the cancellation or termination of a sale, exchange, rental, or lease of real property; and the imposition of rules, policies, and practices affecting the terms, conditions, enjoyment, and privileges of using real property. It does not include commercial property that is advertised, sold, exchanged, rented, leased, managed, or used for the purposes of operating a business.
“Real property” means buildings, dwelling units, structures, real estate, lands, tenements, leaseholds, interest in real estate cooperatives, condominiums, mobile home parks, and hereditaments, corporeal and incorporeal, or any interest therein.
“Real property transaction” means real estate transaction as the term is used in this subchapter.
“Reasonable assurance” means actions or promises which establish that certain other actions will be taken in the future; provided that the reasonableness of an assurance shall be examined by giving due consideration to the needs of a reasonable prudent person in the same or similar circumstances.
“Reasonable restriction” shall not include any restriction, prohibition, policy, practice, or rule that allows any owner or person to refuse to negotiate or refuse to engage in a real estate transaction because of another person’s protected basis or to commit a discriminatory practice prohibited under this subchapter; provided that the reasonableness of a restriction shall be examined by giving due consideration to the needs of a reasonable prudent person in the same or similar circumstances.
“Religious institution” means any religious institution or organization, or any charitable or educational organization operated, supervised, or controlled by a religious institution or organization, which does not restrict membership to persons on the basis of race, color, or ancestry.
“Respondent” means any person, owner of real property, real estate broker, or salesperson, against whom a complaint or petition has been filed with the commission; the party against whom relief is sought; or any party who contests or controverts a proceeding or petition.
“Steering” means the practice of directing persons who seek to enter into a real estate transaction toward or away from real property in order to deprive them of the benefits of living in a discrimination-free environment, and actions designed to discourage persons from seeking housing in a particular community, neighborhood, development, housing accommodation, or part thereof.
“Tester” means any person seeking to engage in a real estate transaction, regardless of the person’s actual intent to engage in such a transaction, who has been subject to discriminatory practices in real estate transactions because of a protected basis, and tenant associations or fair housing organizations whose members include such persons. [Eff 10/15/93; am 5/3/99; am 10/6/13] (Auth: HRS §§368-3; 515-9(7)) (Imp: HRS §§515-2, 515-3, 515-8)
§12-46-303 Construction. This subchapter shall be liberally construed according to the fair import of their terms toward the goal of eliminating discrimination in real estate transactions. [Eff 10/15/93] (Auth: HRS §§368-3; 515-9(7)) (Imp: HRS §515-1)
§12-46-304 Record keeping requirements. (a) Any records of real estate transactions made or kept by an owner, any person engaging in a real estate transaction, or real estate broker or salesperson involving the lease or rental of a housing accommodation:
(1) In a building which has four or more housing accommodations; or
(2) Which is owned by a person who owns three or more housing accommodations;
shall be preserved for one year from the date of making the record or the occurrence of the real estate transaction practice, policy, or action involved, whichever is later. The records shall include, but not be limited to, advertisements, applications, and any other information furnished by the person seeking the housing accommodation, lease or rental agreements, eviction records, any records affecting changes in the terms, conditions, privileges, or enjoyment of tenancy, occupancy, or use of the premises, and corporate or association minutes and resolutions adopting house rules affecting occupancy.
(b) Any other records of real estate transactions, not involving a lease or rental, made or kept by an owner, any person engaging in a real estate transaction, or real estate broker or salesperson shall be preserved for one year from the date of making of the record or the occurrence of the real estate transaction practice, policy, or action involved, whichever is later.
(c) Where a complaint has been filed or a civil action has been brought against a respondent under chapter 368 or 515, HRS, the respondent shall preserve all records relevant to the complaint or action until final disposition of the complaint or action, as defined in section 12-46-21(c)(2).
(d) Where a respondent is required to preserve records under this section and the records have been
destroyed or are unavailable, in an investigation or proceeding on a complaint filed with the commission or in a civil action it may be presumed that the evidence contained in the records was adverse to the interest or position of the respondent. [Eff 10/15/93] (Auth: HRS §§368-3; 515-9(7)) (Imp: HRS §§515-1, 515-3, 515-5, 515-6, 515-9)
§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:
(l) 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 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 discriminate 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] (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 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 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
(H) 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;
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.
(2) To solicit or require as a condition of engaging in a real estate transaction that the buyer, renter, or lessee be tested for 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
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 afford the person with a disability full enjoyment of the premises.
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 disabled person 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.
An owner or manager may require the creation of an escrow fund and the payment 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.
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
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.
(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.
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] (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;
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 sections 515-4 or 515-8, HRS.
(3) 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;
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 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;
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;
(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 person to sign a waiver of liability as a condition of occupancy by children. [Eff 10/15/93] (Auth: HRS §§368-3; 515-9(7)) (Imp: HRS §515-3)
§12-46-308 Discriminatory financial practices. It is a discriminatory practice for a person, a representative of such person, or a real estate broker, appraiser, or salesperson, to whom an inquiry or application is made for financial assistance in connection with a real estate transaction or for construction, rehabilitation, repair, maintenance, or improvement of real property, because of a protected basis:
(l) To discriminate against the applicant;
(2) To use a form of application for financial assistance or to make or keep a record or inquiry in connection with applications for financial assistance which indicates, directly or indirectly, an intent to make a limitation, specification, or discrimination due to the person’s protected basis, unless such records are required by federal law;
(3) To discriminate in the making or purchasing of loans or the provision of other financial assistance for purchasing, constructing, improving, repairing, or maintaining a housing accommodation, or the making or purchasing of loans or the provision of other financial assistance secured by residential real estate; or
(4) To discriminate in the selling, brokering, or appraising of residential real property. [Eff 10/15/93] (Auth: HRS §§368-3; 515-9(7)) (Imp: HRS §515-5)
§12-46-309 Blockbusting. It is a discriminatory practice for a person, representative of a person, real estate broker, appraiser, or salesperson for the purpose of inducing a real estate transaction because of a protected basis:
(1) To represent that a change has occurred or will or may occur in the composition of the owners or occupants in the block, neighborhood, or area in which the real property is located; or
(2) To represent that this change will or may result in the lowering of property values, an increase in criminal or antisocial behavior, or a decline in the quality of the schools in the block, neighborhood, or area in which the real property is located;
if such person, representative, broker, appraiser, or salesperson may benefit financially from the transaction, regardless of actual financial gain. [Eff 10/15/93] (Auth: HRS §§368-3; 515-9(7)) (Imp: HRS §515-7)
§12-46-310 Prohibited interference, coercion, or intimidation. It is a discriminatory practice for a person, or for two or more persons to conspire:
(1) To retaliate, threaten, or discriminate against a person because of the exercise or enjoyment of any right granted or protected by this subchapter, or because the person has opposed a discriminatory practice, or because the person has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under this subchapter;
(2) To aid, abet, incite, or coerce a person to engage in a discriminatory practice;
A newspaper by publishing an advertisement which states a preference based upon a protected basis has aided a person engaging in a discriminatory practice.
(3) To interfere with any person in the exercise or enjoyment of any right granted or protected by this subchapter or with the performance of a duty or the exercise of a power by the commission;
(4) To obstruct or prevent a person from complying with this subchapter or an order issued thereunder;
(5) To intimidate or threaten any person engaging in activities designed to make other persons aware of rights granted or protected by this subchapter or encouraging such other persons to exercise such rights; or
(6) To threaten, intimidate, or interfere with persons in their enjoyment of a housing accommodation, or visitors or associates of such persons, because of the person’s protected basis. [Eff 10/15/93] (Auth: HRS §§368-3; 515-9(7)) (Imp: HRS §515-16)
§12-46-311 Other discriminatory practices. (a) An attempt to commit, directly or indirectly, a discriminatory practice is a discriminatory practice.
(b) A party to a conciliation agreement made under chapter 515, HRS, or this subchapter, who violates the terms of such agreement, has committed a discriminatory practice.
(c) 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 to print, circulate, post, or mail, or cause to be published a statement, advertisement, or sign, or to use a form of application for a real estate transaction, or to make a record or inquiry in connection with a prospective real estate transaction, which indicates, directly or indirectly, an intent to make a limitation, specification, or discrimination because of a person’s protected basis.
(d) 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 to offer, solicit, accept, use, or retain a listing of real property with the understanding that a person may be discriminated against because of a person’s protected basis in a real estate transaction or in the furnishing of facilities or services in connection therewith. [Eff 10/15/93; am 10/6/13] (Auth: HRS §§368-3; 515-9(7)) (Imp: HRS §§515-16, 515-17, 515-18(b))
§12-46-312 Restrictive covenants and conditions.(a) Every provision in an oral agreement or a written instrument relating to real property which purports to forbid or restrict the conveyance, encumbrance, occupancy, use, or lease thereof to individuals because of their protected basis is void.
(b) Every condition, restriction, or prohibition, including a right of entry or possibility of reverter, which directly or indirectly limits the use or occupancy of real property because of a protected basis is void, except a limitation, on the basis of religion, in the use of real property held by a religious institution and used for religious or charitable purposes.
(c) It is a discriminatory practice to insert in a written instrument relating to real property a provision that is void under this section or to honor such a provision in the chain of title. [Eff 10/15/93] (Auth: HRS §§368-3; 515-9(7)) (Imp: HRS §515-6)
§12-46-313 Exemptions. (a) Sections 12-46-305, -306, and -307 do not apply:
(l) To the rental of a housing accommodation in a building which contains housing accommodations for not more than two families living independently of each other if the owner or lessor resides in one of the two housing accommodations; or
(2) To the rental of a room or up to four rooms in a housing accommodation by an owner or lessor if the owner or lessor resides therein.
(b) Nothing in this subchapter regarding familial status or age shall apply to housing for older persons as defined by 42 U.S.C. section 3607(b)(2). [Eff 10/15/93; am 10/6/2013] (Auth: HRS §§368-3; 515-9(7)) (Imp: HRS §515-4)
§12-46-314 Religious institutions. It is not a discriminatory practice for a religious institution in a real estate transaction conducted for charitable or religious purposes to give preference to members of the same religion. [Eff 10/15/93] (Auth: HRS §§368-3; 515-9(7)) (Imp: HRS §515-8)
§12-46-315 Public contractors. (a) In the case of a respondent who is found by the commission to have engaged in a discriminatory practice in the course of performing under a contract or subcontract with the State or a county, or agency thereof, if the discriminatory practice was authorized, requested, commanded, performed, or knowingly or recklessly tolerated by the board of directors of the respondent or by an officer or executive agent acting within the scope of the officer’s or agent’s employment, the commission shall mail or serve a certified copy of a commission decision finding that respondent has engaged in a discriminatory practice to the contracting agency. Unless the commission’s finding of a discriminatory practice is reversed in the course of judicial review, the finding of discrimination is binding on the contracting agency.
(b) Upon receiving a certified copy of the decision under subsection (a), a contracting agency may take appropriate action to:
(l) Terminate a contract, or portion thereof, previously entered into with the respondent, either absolutely or on condition that the respondent carry out a program of compliance with this subchapter; and
(2) Assist the State and all counties, and agencies thereof, to refrain from entering into further contracts, or extensions or other modifications of existing contracts, with the respondent until the commission is satisfied that the respondent will carry out policies in compliance with this subchapter. [Eff 10/15/93] (Auth: HRS §§368-3; 515-9(7)) (Imp: HRS §§515-13(c), 515-19)
§12-46-316 Responsibility for discriminatory practices. A person may be liable for discriminatory practices made unlawful under this subchapter including, but not limited to, the following situations:
(1) An owner, any person engaging in a real estate transaction, or a real estate broker or salesperson is liable for any of its acts which constitute a discriminatory practice under this subchapter.
(2) An owner, any person engaging in a real estate transaction, or a real estate broker or salesperson may be liable for the acts of agents or persons acting on their behalf regardless of whether the specified acts were authorized or even forbidden, if the owner, any person engaging in a real estate transaction, or a real estate broker or salesperson knew or should have known of their occurrence. The commission will examine the circumstances of the particular agency or employment relationship and job functions of the person in determining whether the person acted as an agent or on behalf of the owner, any person engaging in a real estate transaction, or a real estate broker or salesperson. [Eff 10/15/93] (Auth: HRS §§368-3; 515-9(7)) (Imp: HRS §§515-1, 515-2, 515-3, 515-5, 515-6, 515-7, 515-9(7), 515-16, 515-17, 515-20)
§12-46-317 Causation standard. In determining whether a discriminatory practice constituting disparate treatment has been committed under this subchapter, it must be shown by a preponderance of the evidence:
(1) That a causal connection existed between a person’s protected basis and the alleged discriminatory conduct; and
(2) That the protected basis was any part of the reason for the conduct. [Eff 10/15/93] (Auth: HRS §§368-3; 515-9(7)) (Imp: HRS §§515-1, 515-2, 515-3, 515-5, 515-6, 515-7, 515-9(7), 515-16, 515-17, 515-20)
§12-46-318 Defenses. (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.
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. [Eff 10/15/93; am 10/6/13] (Auth: HRS §§368-3; 515-9(7)) (Imp: HRS §§515-1, 515-2, 515-3, 515-4, 515-5, 515-6, 515-7, 515-9, 515-16, 515-17)