WSR 98-01-175

PROPOSED RULES

HUMAN RIGHTS COMMISSION

[Filed December 23, 1997, 11:20 a.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 97-21-057.

Title of Rule: Chapter 162-22 WAC, Employment--Handicapped persons, chapter 162-26 WAC, Public accommodation--Handicapped persons, chapter 162-36 WAC, Real estate transactions, and chapter 162-38 WAC, Real estate transactions--Handicap discrimination.

Purpose: To adopt rules implementing SHB 1491, an act relating to dog guides and service animals.

Statutory Authority for Adoption: RCW 49.60.120(3).

Statute Being Implemented: Chapter 49.60 RCW, RCW 49.60.120, [49.60.]180, [49.60.]190, [49.60.]200, [49.60.]215, [49.60.]222, [49.60.]223, [49.60.]224, [49.60.]225.

Summary: Chapter 162-22 WAC, the title is amended to change "handicap" to "disability" consistent with current statutory language; WAC 162-22-010 Scope of chapter, this amendment restates the rule's language for readability and changes "handicap" to "disability"; WAC 162-22-020 Definitions, this amendment changes "handicap" to "disability" and adds the definitions of "dog guide" and "service animal" from SHB 1491 (chapter 271, Laws of 1997); WAC 162-22-030 Affirmative action, this amendment changes "handicap" to "disability"; WAC 162-22-040 General approach to enforcement, this amendment changes "handicap" to "disability"; WAC 162-22-050 Unfair practice, this amendment updates language regarding the use of "dog guides" and "service animals" consistent with SHB 1491 and changes "handicap" to "disability"; WAC 162-22-060 Preference for disabled is not an unfair practice, this amendment updates language regarding the use of "dog guides" and "service animals" consistent with SHB 1491 and changes "handicap" to "disability"; WAC 162-22-070 Bona fide occupational qualification, this amendment changes "handicap" to "disability"; WAC 162-22-080 Accommodation to employees with disabilities, this amendment updates language regarding the use of "dog guides" and "service animals" consistent with SHB 1491 and changes "handicap" to "disability"; WAC 162-22-090 Physician's opinions, this amendment changes "handicap" to "disability"; WAC 162-22-100 Behavior causing risk, this new rule addresses appropriate responses to dog guide or service animal behavior that causes an unreasonable risk to property or other persons; chapter 162-26 WAC, the title is amended to change "handicap" to "disability" consistent with current statutory language; WAC 162-26-010 Scope of chapter, this amendment changes "handicap" to "disability," and deletes redundant references to statutory language; WAC 162-26-020 Purpose of chapter, this amendment changes "handicap" to "disability," and deletes redundant references to statutory language; WAC 162-26-030 Related law, this amendment changes "handicap" to "disability," deletes redundant references to statutory language, and incorporates a reference to applicable federal law; WAC 162-26-040 Definitions, this amendment changes "handicap" to "disability" and adds the definitions of "dog guide" and "service animal" from SHB 1491 (chapter 271, Laws of 1997); WAC 162-26-050 Who is protected, this amendment updates language regarding the use of "dog guides" and "service animals" consistent with SHB 1491 and changes "handicap" to "disability"; WAC 162-26-060 General principles, this amendment updates language regarding the use of "dog guides" and "service animals" consistent with SHB 1491 and changes "handicap" to "disability"; WAC 162-26-070 General rules, this amendment updates language regarding the use of "dog guides" and "service animals" consistent with SHB 1491, incorporates current language regarding extra charges for dog guides and service animals that is to be deleted from WAC 162-26-130, and changes "handicap" to "disability"; WAC 162-26-080 Reasonable accommodation, this amendment updates language regarding the use of "dog guides" and "service animals" consistent with SHB 1491 and changes "handicap" to "disability"; WAC 162-26-090 Arranged service, this amendment changes "handicap" to "disability," updates language regarding the use of "dog guides" and "service animals" consistent with SHB 1491, and provides example language; WAC 162-26-100 Structural barriers to accessibility, this amendment changes "handicap" to "disability," and incorporates a reference to applicable federal law; WAC 162-26-110 Behavior causing risk, this amendment addresses appropriate responses to dog guide or service animal behavior that causes an unreasonable risk to property or other persons; WAC 162-26-120 Failure to meet requirements of other law, this amendment changes "handicap" to "disability"; WAC 162-26-130 Use of trained dog guide or service animal, this amendment changes "handicap" to "disability," deletes redundant or obsolete references to statutory language, and updates language regarding the use of "dog guides" and "service animals" consistent with SHB 1491; WAC 162-26-140 Unfair to request or require waiver of rights, this amendment updates language regarding the use of "dog guides" and "service animals" consistent with SHB 1491, and changes "handicap" to "disability"; WAC 162-36-001 Definitions, this amendment adds the definitions of "dog guide" and "service animal" from SHB 1491 (chapter 271, Laws of 1997); WAC 162-36-005 Discrimination, this amendment updates language regarding the use of "dog guides" and "service animals" consistent with SHB 1491 and updates language regarding housing for older persons consistent with SB 5741 (chapter 400, Laws of 1997); WAC 162-36-010 Soliciting buyers from neighbors of listed house, this amendment updates language regarding the use of "dog guides" and "service animals" consistent with SHB 1491; WAC 162-26-020 Content and language of solicitation, this amendment updates language regarding the use of "dog guides" and "service animals" consistent with SHB 1491; chapter 162-38 WAC, the title is amended to change "handicap" to "disability" consistent with current statutory language; WAC 162-38-010 Scope and purpose of chapter, this amendment updates language regarding the use of "dog guides" and "service animals" consistent with SHB 1491; WAC 162-38-040 Definitions, this amendment adds the definitions of "dog guide" and "service animal" from SHB 1491 (chapter 271, Laws of 1997); WAC 162-38-050 Who is protected, this amendment updates language regarding the use of "dog guides" and "service animals" consistent with SHB 1491; WAC 162-38-060 General rules, this amendment updates language regarding the use of "dog guides" and "service animals" consistent with SHB 1491; WAC 162-38-100 Persons with dog guides or service animals, this amendment updates language regarding the use of "dog guides" and "service animals" consistent with SHB 1491, and deletes redundant references to statutory language; WAC 162-38-120 Unfair to request or require waiver of rights, this amendment updates language regarding the use of "dog guides" and "service animals" consistent with SHB 1491; and WAC 162-38-130 Behavior causing risk, this new rule addresses appropriate responses to dog guide or service animal behavior that causes an unreasonable risk to property or other persons.

Reasons Supporting Proposal: See Summary above.

Name of Agency Personnel Responsible for Drafting: Idolina Reta and Marilyn Akita, Seattle, (206) 464-7590 and (206) 464-6655; Implementation and Enforcement: Susan J. Jordan, Olympia, (360) 753-2558.

Name of Proponent: Washington State Human Rights Commission, governmental.

Rule is not necessitated by federal law, federal or state court decision.

Explanation of Rule, its Purpose, and Anticipated Effects: To adopt rules implementing SHB 1491. Please see Summary above.

Proposal Changes the Following Existing Rules: Please see Summary above.

No small business economic impact statement has been prepared under chapter 19.85 RCW. The proposed rules do not impose any new or additional requirements on small business than already exists under current commission rules and the law against discrimination (chapter 49.60 RCW).

RCW 34.05.328 does not apply to this rule adoption.

Hearing Location: Seattle Central Community College, 1701 Broadway, Room 1110-1111, Seattle, WA, on January 29, 1998, at 7:00 - 9:00 p.m.

Assistance for Persons with Disabilities: Contact Tanya Callahan by January 20, 1998, TDD (360) 300-7525, or (360) 753-4876.

Submit Written Comments to: Marilyn Akita, 1511 Third Avenue, Suite 921, Seattle, WA 98101-1626, FAX (206) 464-7463, by January 29, 1998.

Date of Intended Adoption: February 20, 1998.

December 19, 1997

Susan J. Jordan

Executive Director

Chapter 162-22 WAC


EMPLOYMENT--((HANDICAPPED)) PERSONS WITH DISABILITIES

AMENDATORY SECTION (Amending Order 23, filed 7/21/75)

WAC 162-22-010 Scope of chapter. This chapter ((contains rules interpreting and implementing)) interprets and implements the ((handicap)) disability discrimination coverage of RCW 49.60.180 (unfair practices of employers), RCW 49.60.190 (unfair practices of labor unions), and RCW 49.60.200 (unfair practices of employment agencies).

[Order 23, 162-22-010, filed 7/21/75.]

AMENDATORY SECTION (Amending Order 23, filed 7/21/75)

WAC 162-22-020 Definitions. In this chapter the following words are used in the meaning given, unless the context clearly indicates another meaning:

(("Handicap")) "Disability" is short for the statutory term "the presence of any sensory, mental, or physical ((handicap)) disability," see WAC 162-04-010, except when it appears as part of the full term.

An "able ((handicapped)) worker with a disability" is a person whose ((handicap)) disability does not prevent the proper performance of the particular job in question.

"`Dog guide' means a dog that is trained for the purpose of guiding blind persons or a dog that is trained for the purpose of assisting hearing impaired persons."

"`Service animal' means an animal that is trained for the purpose of assisting or accommodating a disabled person's sensory, mental, or physical disability."

[Order 23, 162-22-020, filed 7/21/75.]

AMENDATORY SECTION (Amending Order 22, filed 5/23/75)

WAC 162-22-030 Affirmative action and reporting. (1) The commission will recognize a different definition of ((handicap)) disability for purposes of affirmative action and reporting than for purposes of law enforcement. The emphasis in law enforcement is to leave no one out. The emphasis in affirmative action must be to avoid including in so many persons that statistics become meaningless. None of us is a perfect sensory, mental, or physical specimen. Theoretically, every person faces the possibility of being discriminated against because of ((handicap)) disability--although some very remotely. It is therefore necessary to restrict the definition of ((handicap)) disability for purposes of affirmative action and reports on the use of ((handicapped)) workers with disabilities to ((handicaps)) disabilities that are significant and permanent.

(2) An appropriate definition of ((handicap)) disability for affirmative action and reporting purposes is the following, which is already in use by the Washington state department of personnel:

"((Handicapped)) Disabled: Persons with physical, mental, or sensory impairments that would impede that individual in obtaining and maintaining permanent employment and promotional opportunities. The impairments must be material rather than slight; static and permanent in that they are seldom fully corrected by medical replacement, therapy, or surgical means."

[Order 22, 162-22-030, filed 5/23/75.]

AMENDATORY SECTION (Amending Order 23, filed 7/21/75)

WAC 162-22-040 General approach to enforcement. (1) For the purpose of determining whether an unfair practice under RCW 49.60.180, 49.60.190, or 49.60.200 has occurred:

(a) A condition is a "sensory, mental, or physical ((handicap)) disability" if it is an abnormality and is a reason why the person having the condition did not get or keep the job in question, or was denied equal pay for equal work, or was discriminated against in other terms and conditions of employment, or was denied equal treatment in other areas covered by the statutes. In other words, for enforcement purposes a person will be considered to be ((handicapped)) disabled by a sensory, mental, or physical condition if he or she is discriminated against because of the condition and the condition is abnormal.

(b) "The presence of a sensory, mental, or physical ((handicap)) disability" includes, but is not limited to, circumstances where a sensory, mental, or physical condition:

(i) Is medically cognizable or diagnosable;

(ii) Exists as a record or history; or

(iii) Is perceived to exist, whether or not it exists in fact.

(2) An example of subsection (1)(b)(ii) is a medical record showing that the worker had a heart attack five years ago. An example of subsection (1)(b)(iii) is rejection of a person for employment because he had a florid face and the employer thought that he had high blood pressure, but in fact he did not have high blood pressure.

[Order 23, 162-22-040, filed 7/21/75.]

AMENDATORY SECTION (Amending Order 23, filed 7/21/75)

WAC 162-22-050 Unfair practice. (1) RCW 49.60.180 says: "It is unfair practice for any employer:

"(1) To refuse to hire a person because of . . . the presence of any sensory, mental, or physical ((handicap)) disability or the use of a trained dog guide or service animal by a disabled person,. . .: Provided, That the prohibition against discrimination because of such ((handicap)) disability shall not apply if the particular disability prevents the proper performance of the particular worker involved."

(2) An unfair practice has been committed when both of the following have occurred:

(a) An employer, employment agency, or labor union has refused to hire or has otherwise discriminated against a person because the person has a ((handicap)) disability or because of the use of a trained dog guide or service animal by a person with a disability, and

(b) The ((handicap)) disability or the use of a trained dog guide or service animal by a person with a disability does not prevent the person from properly performing the particular job.

(3) While the proviso on ability to do the job appears only in paragraph (1) of RCW 49.60.180, it logically applies to all circumstances where ability to do the job is material. The rule of the proviso will therefore be applied when appropriate in cases arising under other paragraphs of RCW 49.60.180, and also in cases under RCW 49.60.190 (labor unions), and RCW 49.60.200 (employment agencies).

[Order 23, 162-22-050, filed 7/21/75.]

AMENDATORY SECTION (Amending Order 23, filed 7/21/75)

WAC 162-22-060 Preference for ((handicapped)) disabled is not an unfair practice. The law against discrimination says that it is an unfair practice to discriminate against a person because of the presence of any ((handicap)) disability or the use of a trained dog guide or service animal by a person with a disability. Discrimination in favor of a person because of the person's ((handicap)) disability is not an unfair practice. Stating the same thing inversely, discrimination against a person because the person is not ((handicapped)) disabled is not an unfair practice. This nonreciprocal operation is different from the operation of the statutes in all other areas, except for age discrimination. For example, it is an unfair practice for an employer to discriminate either for or against persons of any race or either sex.

[Order 23, 162-22-060, filed 7/21/75.]

AMENDATORY SECTION (Amending Order 23, filed 7/21/75)

WAC 162-22-070 Bona fide occupational qualification. (1) The special rules in this section supplement the general rules on bona fide occupational qualification in WAC 162-16-020, 162-16-030, and 162-16-040.

(2) No bona fide occupational qualification question is raised by preferential treatment of ((handicapped)) disabled persons, since such treatment is not an unfair practice. See WAC 162-22-060.

(3) A bona fide occupational qualification differs from the statutory requirement that the ((handicapped)) disabled individual be able to properly perform the job. The determination of ability to do the job is made on an individual basis, for each person for each job. A bona fide occupational qualification is a requirement that must be met by all persons whether or not they can do the job. Ability to do the job is part of the definition of ((handicap)) disability discrimination; a bona fide occupational qualification is an exception to the rule of nondiscrimination because of ((handicap)) disability.

(4) The following job requirements are bona fide occupational qualifications:

(a) Any specific requirement set out in a statute of the United States or the state of Washington, or an authorized regulation of an agency of the United States government.

(b) Any specific requirement set out in an authorized regulation of an agency of the state of Washington, or in an ordinance, authorized rule, or other official act of a unit of local government of the state of Washington, unless the human rights commission finds that the state or local requirement is not consistent with the law against discrimination.

(5) The following are not bona fide occupational qualifications:

(a) Preferences or objections of co-workers, the employer, clients, or customers.

(b) Physical obstacles or inadequacies at work facilities that reasonably can be corrected as provided in WAC 162-22-080.

[Order 23, 162-22-070, filed 7/21/75.]

AMENDATORY SECTION (Amending Order 23, filed 7/21/75)

WAC 162-22-080 Accommodation to ((handicapped)) employees with disabilities. (1) It is an unfair practice for an employer to fail or refuse to make reasonable accommodations to the sensory, mental, or physical limitations of employees, or the use of a trained dog guide or service animal by a disabled person, unless the employer can demonstrate that such an accommodation would impose an undue hardship on the conduct of the employer's business.

(2) It is an unfair practice for an employer to refuse to hire or otherwise discriminate against an able ((handicapped)) worker with a disability because the employer will be subject to the requirements of this section if the worker is hired, promoted, etc.

(3) The cost of accommodating an able ((handicapped)) worker with a disability or the use of a trained dog guide or service animal by a disabled person will be considered to be an undue hardship on the conduct of the employer's business only if it is unreasonably high in view of the size of the employer's business, the value of the employee's work, whether the cost can be included in planned remodeling or maintenance, the requirements of other laws and contracts, and other appropriate considerations.

[Order 23, 162-22-080, filed 7/21/75.]

AMENDATORY SECTION (Amending Order 23, filed 7/21/75)

WAC 162-22-090 Physician's opinions. (1) A physician's opinion on whether a ((handicap)) disability prevents a person from properly performing a particular job will be given due weight in view of all the circumstances, including the extent of the physician's knowledge of the particular person and job, and the physician's relationship to the parties.

(2) A physician's conclusion will not be considered to be an opinion on whether the person can properly perform the particular job unless it:

(a) Is based on the individual capabilities of the particular person, and not on generalizations as to the capabilities of all persons with the same ((handicap)) disability, unless the ((handicap)) disability is invariable in its disabling effect; and

(b) Is based on knowledge of the actual sensory, mental, and physical qualifications needed for proper performance of the particular job.

(3) Employers who choose to rely on a physician's opinion in determining that a person cannot properly perform the particular job are advised to provide the physician with the necessary information about the job and to inform the physician of the need for an individualized opinion.

[Order 23, 162-22-090, filed 7/21/75.]

NEW SECTION

WAC 162-22-100 Behavior causing risk. Behavior or actions of a dog guide or service animal that constitutes an unreasonable risk to property or other persons can be grounds to request that a dog guide or service animal be removed, and shall not constitute an unfair practice.

(1) General rule. It is not an unfair practice under RCW 49.60.180 to request that a dog guide or service animal be removed from the workplace because the behavior or actions of that dog guide or service animal constitutes an unreasonable risk to property or other persons.

(2) Individual judgment required. To come within this exception, the removal of a dog guide or service animal must be based on knowledge of the present behavior or actions of the dog guide or service animal. It is an unfair practice to exclude all of the particular dog guides or service animals unless the employer can show that all of the particular dog guides or service animals will present an unreasonable risk to persons or property.

(3) Likelihood of injury. Risk to property or other persons must be immediate and likely, not remote or speculative.

(4) Degree of risk. Risk of injury to persons may be given more weight than risk of injury to property. Risk of severe injury may be given more weight than risk of slight injury.

(5) Annoyance to staff or other customers. Annoyance on the part of staff or other customers of the workplace at the presence of the dog guide or service animal is not an unreasonable "risk to property or other persons" justifying the removal of the dog guide or service animal.

(6) Least discriminatory solution required. It is an unfair practice to remove a dog guide or service animal from the entire workplace because the dog guide or service animal presents a risk of injury when in part of the workplace. When risk justifies the removal of a dog guide or service animal from the workplace, efforts must be made to reasonably accommodate the person with the disability.

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Chapter 162-26 WAC


PUBLIC ACCOMMODATIONS, ((HANDICAP)) DISABILITY DISCRIMINATION

AMENDATORY SECTION (Amending Order 41, filed 9/22/82)

WAC 162-26-010 Scope of chapter. (1) Confined to unfair practice. This chapter interprets and implements the ((handicap)) disability discrimination coverage of RCW 49.60.215, unfair practices of places of public resort, accommodation, assemblage, amusement. This chapter does not define the scope of the civil right to be free from discrimination because of ((handicap)) disability declared in RCW 49.60.030 (((quoted below in WAC 162-26-030))) or interpret other statutes. This chapter applies to the unfair practices which the commission is empowered by RCW 49.60.120 to eliminate and prevent through the administrative process provided in RCW 49.60.230 through 49.60.270.

(2) Language interpreted. ((The language of RCW 49.60.215 that is interpreted and implemented by this chapter is:

"It shall be an unfair practice for any person or his agent or employee to commit an act which directly or indirectly results in any distinction, restriction, or discrimination, or the requiring of any person to pay a larger sum than the uniform rates charged other persons, or the refusing or withholding from any person the admission, patronage, custom, presence, frequenting, dwelling, staying, or lodging in any place of public resort, accommodation, assemblage, or amusement, except for conditions and limitations established by law and applicable to all persons, regardless of . . . the presence of any sensory, mental, or physical handicap, or the use of a trained dog guide by a blind or deaf person: Provided, That this section shall not be construed to require structural changes, modifications, or additions to make any place accessible to a handicapped person except as otherwise required by law: Provided, That behavior or actions constituting a risk to property or other persons can be grounds for refusal and shall not constitute an unfair practice.")) This chapter interprets and implements RCW 49.60.215, Unfair practices of places of public resort, accommodation, assemblage, and amusement, as amended by chapter 271, Laws of 1997.

(3) Related regulations. Regulations of the commission on ((handicap)) disability discrimination in real estate transactions are in chapter 162-38 WAC. Commission regulations governing ((handicap)) disability discrimination in employment are in chapter 162-22 WAC and in other regulations governing employment. General regulations of the commission governing schools are in chapter 162-28 WAC.

[Statutory Authority: RCW 49.60.120(3). 82-19-086 (Order 41), 162-26-010, filed 9/22/82.]

AMENDATORY SECTION (Amending Order 41, filed 9/22/82)

WAC 162-26-020 Purpose of chapter. (1) Purpose. The purpose of this chapter is to specify how the interpreted statute applies to specific circumstances and to established principles of interpretation that will guide in other circumstances.

(2) Sources of policy. The commission is guided by the policy of the legislature expressed in the statute being interpreted and in related statutes, particularly RCW 49.60.010, 49.60.030, and chapter 70.04 RCW, the "white cane law." The commission is also guided by the specialized knowledge and experience of its staff, particularly its disability specialists, and by the commissioners' own knowledge of the nature of ((handicap)) disability discrimination and the practical needs of the disabled. This includes the information gathered at hearings held in Spokane, Yakima, Lacey, and Seattle prior to the preparation of the first draft of these rules, and the written and oral comments received after circulation of proposed rules.

(3) Legislative policy. The principal expressions of legislative policy outside of the language being interpreted are the following:

((RCW 49.60.010: "The legislature hereby finds and declares that practices of discrimination against any of its inhabitants because of . . . the presence of any sensory, mental, or physical handicap are a matter of state concern, that such discrimination threatens not only the rights and proper privileges of its inhabitants but menaces the institutions and foundation of a free democratic state. A state agency is herein created with powers with respect to elimination and prevention of discrimination in . . . places of public resort, accommodation, or amusement . . . because of . . . the presence of any sensory, mental, or physical handicap; and the board (human rights commission) established hereunder is hereby given general jurisdiction and power for such purposes."))

RCW 70.84.010: "The legislature declares:

"(1) It is the policy of this state to encourage and enable the blind, the visually handicapped, the hearing impaired, and the otherwise physically disabled to participate fully in the social and economic life of the state, and to engage in remunerative employment.

"(2) As citizens, the blind, the visually handicapped, the hearing impaired, and the otherwise physically disabled have the same rights as the able-bodied to the full and free use of the streets, highways, walkways, public buildings, public facilities, and other public places.

"(3) The blind, the visually handicapped, the hearing impaired, and the otherwise physically disabled are entitled to full and equal accommodations, advantages, facilities, and privileges on common carriers, airplanes, motor vehicles, railroad trains, motor buses, street cars, boats, and all other public conveyances, as well as in hotels, lodging places, places of public resort, accommodation, assemblage or amusement, and all other places to which the general public is invited, subject only to the conditions and limitations established by law and applicable alike to all persons."

RCW 28A.13.005: "It is the purpose of this chapter (certain education statutes) to ensure that all handicapped children . . . shall have the opportunity for an appropriate education at public expense as guaranteed to them by the constitution of this state."

[Statutory Authority: RCW 49.60.120(3). 82-19-086 (Order 41), 162-26-020, filed 9/22/82.]

AMENDATORY SECTION (Amending Order 41, filed 9/22/82)

WAC 162-26-030 Related law. (1) General civil right. RCW 49.60.030 provides:

"(1) The right to be free from discrimination because of . . . the presence of any sensory, mental, or physical ((handicap)) disability or the use of a trained dog guide or service animal by a disabled person is recognized as and declared to be a civil right. This right shall include, but not be limited to:

". . .

"(b) The right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement;"

This right is enforceable through lawsuits in court (RCW 49.60.030(2)) but not through the administrative process of the human rights commission.

(2) ((The "white cane law." Chapter 70.84 RCW prohibits the refusal of service to or the exaction of an extra charge from any blind or hearing impaired person because the person is accompanied by a guide dog. RCW 70.84.030. The chapter imposes special duties on a driver who approaches a blind pedestrian with a white cane or a blind or hearing impaired pedestrian using a guide dog. RCW 70.84.040. Blind, partially blind, and hearing impaired pedestrians are declared to have all the rights and privileges conferred by law on other persons in any of the places, accommodations, or conveyances listed in RCW 70.84.010 (quoted above in WAC 162-26-020(2)). RCW 70.84.050.

(3))) Other laws. Other state laws define rights of the ((handicapped)) persons with disabilities in particular circumstances. Some are referred to elsewhere in this chapter. Some accommodations are subject to United States law, particularly sections 503 and 504 of the Rehabilitation Act of 1973, 29 U.S.C. 793, 794, and the Americans with Disabilities Act of 1990, codified at 42 U.S.C. 12101, et seq.

[Statutory Authority: RCW 49.60.120(3). 82-19-086 (Order 41), 162-26-030, filed 9/22/82.]

AMENDATORY SECTION (Amending Order 41, filed 9/22/82)

WAC 162-26-040 Definitions. (1) Place of public accommodation. RCW 49.60.040 gives the following definition:

"'Any place of public resort, accommodation, assemblage, or amusement' includes, but is not limited to, any place, licensed or unlicensed, kept for gain, hire, or reward, or where charges are made for admission, service, occupancy, or use of any property or facilities, whether conducted for the entertainment, housing, or lodging of transient guests, or for the benefit, use, or accommodation of those seeking health, recreation, or rest, or for the burial or other disposition of human remains, or for the sale of goods, merchandise, services, or personal property, or for the rendering of personal services, or for public conveyance or transportation on land, water, or in the air, including the stations and terminals thereof and the garaging of vehicles, or where food or beverages of any kind are sold for consumption on the premises, or where public amusement, entertainment, sports, or recreation of any kind is offered with or without charge, or where medical service or care is made available, or where the public gathers, congregates, or assembles for amusement, recreation, or public purposes, or public halls, public elevators, and public washrooms of buildings and structures occupied by two or more tenants, or by the owner and one or more tenants, or any public library or educational institution, or schools of special instruction, or nursery schools, or day care centers or children's camps: Provided, That nothing contained in this definition shall be construed to include or apply to any institute, bona fide club, or place of accommodation, which is by its nature distinctly private, including fraternal organizations, though where public use is permitted that use shall be covered by this chapter; nor shall anything contained in this definition apply to any educational facility, columbarium, crematory, mausoleum, or cemetery operated or maintained by a bona fide religious or sectarian institution;"

(2) General definitions. General definitions applicable throughout the commission's regulations are set out in WAC 162-04-010. These include the following:

"((`Handicap')) `Disability' is short for the term 'the presence of any sensory, mental, or physical ((handicap)) disability' used in the law against discrimination, and means the full term."

(3) Definitions special to this chapter. The following words or phrases are used in this chapter in the meaning given, unless the context clearly indicates another meaning.

"Accessible" means usable or understandable by a person ((who is handicapped)) with a disability, with reasonable effort and in reasonable safety.

"Arranged service" means making the services or goods of a place of public accommodation available to a ((handicapped)) person with a disability at a place or in a way that is different from the place or way that the service is offered to the public in general in order to serve the person. See WAC 162-26-090.

"Dog guide" means a ((trained dog guide used by a blind or deaf person. See WAC 162-26-130)) dog that is trained for the purpose of guiding blind persons or a dog that is trained for the purpose of assisting hearing impaired persons.

"Fair service" means the service required by RCW 49.60.215 for ((handicapped)) disabled persons in places of public accommodation. Depending on the circumstances, fair service may be in the form of (a) same service, (b) reasonable accommodation, or (c) arranged service. These terms are defined in this chapter. See also "service" and "fairly serve."

"Fairly serve" means to provide fair service.

"Place of public accommodation" is short for "place of public resort, accommodation, assemblage, or amusement" and means the full term.

"Reasonable accommodation" means action, reasonably possible in the circumstances, to make the regular services of a place of public accommodation accessible to persons who otherwise could not use or fully enjoy the services because of the person's sensory, mental, or physical limitations. See WAC 162-26-080.

"Same service" means service without regard to the existence of a ((handicap)) disability. See WAC 162-26-060.

"Service" means everything available to persons from a place of public accommodation.

"Service animal" means an animal that is trained for the purpose of assisting or accommodating a disabled person's sensory, mental, or physical disability.

"Structural" is defined in WAC 162-26-100(5).

"Unfair service" means service not in compliance with RCW 49.60.215. See "fair service."

[Statutory Authority: RCW 49.60.120(3). 82-19-086 (Order 41), 162-26-040, filed 9/22/82.]

AMENDATORY SECTION (Amending Order 41, filed 9/22/82)

WAC 162-26-050 Who is protected. (1) Statute. RCW 49.60.215 requires service in places of public accommodation "regardless of . . . the presence of any sensory, mental, or physical ((handicap)) disability, or the use of a trained dog guide ((by a blind or deaf person)) or service animal by a disabled person . . ."

(2) What is a ((handicap)) disability. A person's condition is a "sensory, mental, or physical ((handicap)) disability" if it is abnormal and is a reason why the person was not fairly served in a place of public accommodation. A person is ((handicapped)) disabled by a sensory, mental, or physical condition if she or he is not fairly served because of the condition. The law protects all persons from unfair service because of ((handicap)) disability, whether the ((handicap)) disability is severe or slight.

(3) When ((handicap)) disability is present. The presence of a sensory, mental, or physical ((handicap)) disability includes, but is not limited to, circumstances where a sensory, mental, or physical condition:

(a) Is medically cognizable or diagnosable;

(b) Exists as a record or history; or

(c) Is perceived to exist, whether or not it exists in fact.

(4) Person using a trained dog guide or service animal. WAC 162-26-130 defines who is protected as a person using a trained dog guide or service animal.

(5) ((Nonhandicapped)) Nondisabled not protected. The law protects against discrimination because of the "presence" of a ((handicap)) disability. It does not prohibit treating ((handicapped)) disabled persons more favorably than ((nonhandicapped)) nondisabled persons. Compare WAC 162-22-060 (employment).

[Statutory Authority: RCW 49.60.120(3). 82-19-086 (Order 41), 162-26-050, filed 9/22/82.]

AMENDATORY SECTION (Amending Order 41, filed 9/22/82)

WAC 162-26-060 General principles. (1) Same service preferred. The purposes of the law against discrimination are best achieved when ((handicapped)) disabled persons are treated the same as if they were not ((handicapped)) disabled. The legislature expresses this policy in RCW 49.60.215 with the words "regardless of." Persons should, if possible, be treated without regard to their ((handicap)) disability or use of a dog guide or service animal. This is called "same service" in this chapter.

(2) Reasonable accommodation. In some circumstances, however, treating ((handicapped)) disabled persons the same as ((nonhandicapped)) nondisabled persons (same service) will defeat the purposes of the law against discrimination. This would be true if persons in wheelchairs and ((nonhandicapped)) nondisabled persons are equally entitled to use the stairway to reach the second floor of a store. In such circumstances, the operator of the place of public accommodation should if possible use the next best solution: Reasonable accommodation. A reasonable accommodation would be to permit the shopper in the wheelchair to use an elevator to reach the second floor, even though the public in general is not permitted to use the elevator. Reasonable accommodation is explained in WAC 162-26-080.

(3) Arranged service. Where same service will not carry out the purposes of the law and where no accommodation is reasonable, the operator of a place of public accommodation should use the third best solution: Arranged service. In the example used in this section, arranged service would be having a store employee bring merchandise of the size and description requested by the wheelchair shopper from the second floor for examination by the customer on the first floor. This would be appropriate if there were no elevator and no other safe and dignified way to transport the customer to the second floor. Arranged service is explained in WAC 162-26-090.

(4) Overall objective. In applying RCW 49.60.215, the commission seeks to assure that ((handicapped)) disabled persons will have the enjoyment of places of public accommodation to the greatest extent practical. The legislature in RCW 49.60.040 has defined "full enjoyment of" with respect to the civil right set out in places of public accommodation in RCW 49.60.030 as follows:

"`Full enjoyment of' includes the right to purchase any service, commodity, or article of personal property offered or sold on, or by, any establishment to the public, and the admission of any person to accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement, without acts directly or indirectly causing persons . . . with any sensory, mental, or physical ((handicap)) disability, or ((a blind or deaf person using)) the use of a trained dog guide or service animal by a disabled person, to be treated as not welcome, accepted, desired, or solicited;"

[Statutory Authority: RCW 49.60.120(3). 82-19-086 (Order 41), 162-26-060, filed 9/22/82.]

AMENDATORY SECTION (Amending Order 41, filed 9/22/82)

WAC 162-26-070 General rules. (1) Rules. Except where exempted by RCW 49.60.215 or excepted by ruling of the commissioners under WAC 162-06-030, it is an unfair practice under RCW 49.60.215 for any person in the operation of a place of public accommodation, because of ((handicap)) disability or use of a trained dog guide or service animal:

(a) To refuse to serve a person;

(b) To charge for reasonably accommodating the special needs of a ((handicapped)) disabled person, or for arranged service as defined in this chapter;

(c) To require a disabled person accompanied by a trained dog guide or service animal in any of the places listed in RCW 70.84.010(3) to pay an extra charge for the trained dog guide or service animal.

(d) To treat a ((handicapped)) disabled person as not welcome, accepted, desired, or solicited the same as a ((nonhandicapped)) nondisabled person;

(((d))) (e) To segregate or restrict a person or deny a person the use of facilities or services in connection with the place of public accommodation where same service is possible without regard to the ((handicap)) disability;

(((e))) (f) To fail to reasonably accommodate the known physical, sensory, or mental limitations of a ((handicapped)) disabled person, when same service would prevent the person from fully enjoying the place of public accommodation, as provided in WAC 162-26-080; or

(((f))) (g) To fail to arrange service under the rules in WAC 162-26-090 when reasonable accommodation is not possible and same service treatment would prevent the ((handicapped)) disabled person from fully enjoying the place of public accommodation.

(2) Exceptions may be granted. The commission will grant exceptions to the rules of this chapter under the standards set out in WAC 162-06-030.

[Statutory Authority: RCW 49.60.120(3). 82-19-086 (Order 41), 162-26-070, filed 9/22/82.]

AMENDATORY SECTION (Amending Order 43, filed 12/23/82)

WAC 162-26-080 Reasonable accommodation. (1) Unfair to not accommodate. It is an unfair practice for a person in the operation of a place of public accommodation to fail to make reasonable accommodation to the known physical, sensory, or mental limitations of a ((handicapped)) person with a disability or to the use of a trained dog guide or service animal by a disabled person, when same service would prevent the person from fully enjoying the place of public accommodation.

(2) Defined. "Reasonable accommodation" is action, reasonably possible in the circumstances, to make the regular services of a place of public accommodation accessible to persons who otherwise could not use or fully enjoy the services because of the person's sensory, mental, or physical limitations.

(3) Reasonableness. Whether a possible accommodation is reasonable or not depends on the cost of making the accommodation, the size of the place of public accommodation, the availability of staff to make the accommodation, the importance of the service to the ((handicapped)) person with a disability, and other factors bearing on reasonableness in the particular situation.

(4) Carrying not favored. Carrying a mobility-impaired person is not required by law and is not an acceptable accommodation, except in rare circumstances. Carrying should be done only when there is no other way for the mobility-impaired person to use the facility and when it is agreeable to the ((handicapped)) person with a disability.

(5) Reference to employment standard. The concept of reasonable accommodation is also used in the employment context. The commission will rely on its interpretations of WAC 162-22-080 and on Holland v. Boeing Co., 90 Wn.2d 384, 583 P.2d 621 (1978) for guidance in applying this section.

[Statutory Authority: RCW 49.60.120(3). 83-02-012 (Order 43), 162-26-080, filed 12/23/82.]

AMENDATORY SECTION (Amending Order 41, filed 9/22/82)

WAC 162-26-090 Arranged service. (1) Unfair to deny. No person shall be denied the enjoyment of a place of public accommodation because the facilities are not accessible to the person and cannot be made accessible with reasonable accommodation, when the desired service can be made available under the standards for arranged service that are specified in this section.

(2) Defined. "Arranged service" means making the services or goods of a place of public accommodation available to a ((handicapped)) person with a disability or a person with a disability using a trained dog guide or service animal at a place or in a way that is different from the place or way that the service is offered to the public in general, in order to serve the person.

(3) Limitation on use. Arranged service is fair only when neither same service nor reasonable accommodation is possible, and the choice is between arranged service and no service.

(4) Choice of means of arranged service. The operator of a place of public accommodation may choose the place and means of providing arranged service so long as the operator gives reasonable weight to the convenience, needs, and dignity of the ((handicapped)) person with a disability or a person with a disability using a trained dog guide or service animal seeking service. Among available means or places, the one that most closely approximates service to the general public should be chosen. There is no need for the operator to deliver the services away from the place of public accommodation if the services can be made available somewhere at the place of public accommodation.

(5) Examples.

(a) In a retail setting, goods can be carried from an inaccessible location to an accessible location, as described in WAC 162-26-060(3).

(b) In an office setting, interviewers and forms could be brought to an accessible office or conference room in the building or at another place, although the particular business would ordinarily be done at an inaccessible location.

(c) In an office setting, arrange to interview a ((mentally handicapped)) person with a mental disability in place of requiring a written application or report.

(d) In an entertainment setting, seating areas made available for patrons in wheelchairs would be arranged service.

(e) In a hospital setting, during surgery, a person with a disability might be asked to leave their trained dog guide or service animal outside the operating room while the person with the disability is individually assisted by hospital staff through the surgical procedure.

[Statutory Authority: RCW 49.60.120(3). 82-19-086 (Order 41), 162-26-090, filed 9/22/82.]

AMENDATORY SECTION (Amending Order 43, filed 12/23/82)

WAC 162-26-100 Structural barriers to accessibility. (1) Statute. RCW 49.60.215 says that it

"shall not be construed to require structural changes, modifications, or additions to make any place accessible to a ((handicapped)) disabled person except as otherwise required by law. . . ."

(2) Laws requiring accessibility. The principal laws requiring that places be made accessible are:

(a) The state building code, chapter 19.27 RCW, which includes the barrier free design standards adopted in chapter 51-10 WAC under authority of chapter 70.92 RCW. The barrier free design standards apply with some exceptions to "buildings, structures, or portions thereof, . . . which are constructed, substantially remodeled, or substantially rehabilitated after October 1, 1976." WAC 51-10-003.

(b) Chapter 219, Laws of 1971 ex. sess., in effect from August 9, 1971, through June 30, 1976. This statute required that plans and specifications for the erection or remodeling of any public accommodation must provide for access by ((physically handicapped)) persons with physical disabilities, for toilet facilities designed for use by the ((physically handicapped)) persons with physical disabilities, and for additional facilities specified in a national standard.

(c) Chapter 35, Laws of 1967, in effect from June 8, 1967, through June 30, 1976. This statute was substantially the same as the 1971 statute described in paragraph (b) of this subsection, but was limited in its coverage to public buildings.

(d) RCW 35.68.075, requiring curb ramps in sidewalks constructed or replaced after June 7, 1973.

(e) United States law; particularly 45 CFR 84.23 implementing section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), which requires that facilities constructed after April 28, 1977 with federal assistance be readily accessible to and usable by ((handicapped)) disabled persons.

(f) The Americans with Disabilities Act of 1990, codified at 42 U.S.C. 12101 et seq.

(3) Practices that are not unfair. It is not an unfair practice under RCW 49.60.215 to operate a place of public accommodation with structural barriers to accessibility of the ((handicapped)) person with a disability when the structural barriers were lawful when constructed and are presently lawful under the state building code and other law outside of the law against discrimination. This exemption does not relieve the operator of a place of public accommodation of the duty to make reasonable accommodation to the needs of ((handicapped)) disabled persons as described in WAC 162-26-080, or to provide arranged service as described in WAC 162-26-090.

(4) When required by law. It is an unfair practice under RCW 49.60.215:

(a) To deny service to any person because of a barrier to accessibility when accessibility is required by law;

(b) To build or remodel in a way that does not comply with requirements of law on accessibility;

(c) To operate a place of public accommodation that is out of compliance with a law requiring accessibility;

(d) To fail to maintain or fail to continue the accessibility of a place of public accommodation that was required by law to be accessible when it was built, remodeled, or rehabilitated.

(5) Nonstructural changes. After January 1, 1983, it is an unfair practice under RCW 49.60.215 for a person who is making nonstructural changes in a place of public accommodation to fail to eliminate barriers to same service when this can be done without substantially changing the scope or cost of the project or requiring structural changes that are not otherwise required by law. Specifically, it is an unfair practice:

(a) When installing a nonstructural fixture or component, to choose and install one that is not accessible to the ((handicapped)) person with a disability or that makes the place of public accommodation less accessible to the ((handicapped)) person with a disability.

(b) When replacing a nonstructural fixture or component, to replace it with one that is not accessible to the handicapped or one that makes the place of public accommodation less accessible to the ((handicapped)) person with a disability.

(c) When relocating a nonstructural fixture or component, to relocate it to a place that is not accessible to the ((handicapped)) person with a disability, unless no suitable place is accessible.

(d) When modifying a nonstructural fixture or component, to do so in a way that does not eliminate barriers to the ((handicapped)) person with a disability, when possible.

(6) What is "structural." "Structural" for purposes of RCW 49.60.215 means the load-bearing members and essential structure or composition of a place, as distinguished from its finish, decorations, or fittings. Examples of structural components are floors, walls, stairs, door openings, sidewalks, elevators, and escalators. Examples of things that are not structural are moveable walls, bathroom fixtures and partitions, fixtures such as water fountains (whether or not attached to a wall), doors and door hardware, cabinets, counters, handrails, signs (attached or painted), elevator controls, alarm systems, and carpeting or other floor covers.

[Statutory Authority: RCW 49.60.120(3). 83-02-012 (Order 43), 162-26-100, filed 12/23/82.]

AMENDATORY SECTION (Amending Order 41, filed 9/22/82)

WAC 162-26-110 Behavior causing risk. (1) Proviso interpreted. This section interprets the following proviso of RCW 49.60.215:

"Provided, That behavior or actions constituting a risk to property or other persons can be grounds for refusal and shall not constitute an unfair practice."

(2) General rule. It is not an unfair practice under RCW 49.60.215 to deny a person service in a place of public accommodation because that person's behavior or actions constitute a risk to property or other persons. It is not an unfair practice to request that a trained dog guide or service animal be removed because the behavior or actions of that dog guide or service animal constitute an unreasonable risk to property or other persons.

(3) Individual judgment required. To come within this exception, the denial of service must be based on knowledge of the present behavior or actions of the individual who is not served. It is an unfair practice to exclude all persons who have a ((handicap)) disability or who have a particular ((handicap)) disability unless the operator of the place of public accommodation can show that all persons with the ((handicap)) disability will present a risk to persons or property.

To come within this exception, the removal of a trained dog guide or service animal must be based on knowledge of the present behavior or actions of the dog guide or service animal. It is an unfair practice to exclude all of the particular dog guides or service animals unless the place of public accommodation can show that all of the particular dog guides or service animals will present an unreasonable risk to property or other persons.

(4) Likelihood of injury. Risk to property or other persons must be immediate and likely, not remote or speculative.

(5) Degree of risk. Risk of injury to persons may be given more weight than risk of injury to property. Risk of severe injury may be given more weight than risk of slight injury.

(6) Risk to ((handicapped)) person with a disability or trained dog guide or service animal. Risk to the ((handicapped)) person with a disability or trained dog guide or service animal is not a reason to deny service. Liability for injury to ((handicapped)) customers with a disability is governed by law other than the law against discrimination. The law against discrimination affects tort liability only insofar as it includes ((handicapped)) persons with a disability within the public for which public accommodations must be made safe.

(7) Annoyance to staff or other customers. Annoyance on the part of staff or customers of the place of public accommodation at the abnormal appearance or behavior of a ((handicapped)) person with a disability is not a "risk to property or other persons" justifying nonservice. Annoyance on the part of staff or customers of the place of public accommodation at the presence of the dog guide or service animal is not an unreasonable "risk to property or other persons" justifying the removal of the dog guide or service animal.

(8) Least discriminatory solution required. It is an unfair practice to deny a ((handicapped)) person with a disability the enjoyment of an entire place of public accommodation because the person presents a risk of injury when using part of the place. When risk justifies not serving a ((handicapped)) person with a disability in the same way or same place as other customers, the person should be served through reasonable accommodation (WAC 162-26-060, 161-26-080 [162-26-080]) or arranged service (WAC 162-26-060, 162-260-090), if possible. When risk justifies removal of a dog guide or service animal from the place of public accommodation, efforts must be made to reasonably accommodate the person with a disability.

[Statutory Authority: RCW 49.60.120(3). 82-19-086 (Order 41), 162-26-110, filed 9/22/82.]

AMENDATORY SECTION (Amending Order 41, filed 9/22/82)

WAC 162-26-120 Failure to meet requirements of other law. (1) Unfair practice. It is an unfair practice under RCW 49.60.215 for the operator of a place of public accommodation to refuse or fail to comply with any specific requirement of law for the benefit of ((handicapped)) persons with disabilities applicable to the place of public accommodation.

(2) All sources of law covered. This section applies to all requirements imposed by or authorized by any law of the United States, the state of Washington, or any ordinance of a unit of local government within the state of Washington.

(3) References to selected laws. Some of the laws to which this section applies are:

(a) Chapter 28A.13 RCW (education for handicapped children);

(b) Sections 503 and 504 of the United States Rehabilitation Act of 1973, 29 U.S.C. 793 and 794, and all regulations of agencies of the United States government issued pursuant to them;

(c) Chapter 70.84 RCW, the "white cane law."

[Statutory Authority: RCW 49.60.120(3). 82-19-086 (Order 41), 162-26-120, filed 9/22/82.]

AMENDATORY SECTION (Amending Order 41, filed 9/22/82)

WAC 162-26-130 Use of trained dog guide or service animal. (1) Coverage of statute. RCW 49.60.215 requires fair service in a place of public accommodation "regardless of . . . the use of a trained dog guide or service animal by a ((blind or deaf)) disabled person . . ." as well as because of ((handicap)) disability itself.

(2) Same rules apply. All of the rules of this chapter with respect to ((handicap)) disability itself apply equally to service of a ((blind or deaf)) person with a disability who is using a trained dog guide or service animal. See particularly WAC 162-26-060 and 162-26-070.

(((3) Standards of "white cane law" apply. It is an unfair practice under RCW 49.60.215 for the operator of a place of public accommodation to deny any person the following rights set out in the "white cane law," RCW 70.84.030:

"Every totally or partially blind or hearing impaired person shall have the right to be accompanied by a guide dog in any of the places listed in RCW 70.84.010(3) without being required to pay an extra charge for the guide dog. It shall be unlawful to refuse service to a blind or hearing impaired person in any such place solely because he is accompanied by a guide dog."

(4) "Dog guide" defined. For purposes of RCW 49.60.215 the term "dog guide" means a trained dog guide used by a blind or deaf person. It has the same meaning as "guide dog" in RCW 70.84.020:

". . . the term 'guide dog' shall mean a dog which is in working harness and is trained or approved by an accredited school engaged in training dogs for the purpose of guiding blind persons or a dog which is trained or approved by an accredited school engaged in training dogs for the purpose of assisting hearing impaired persons."

(5) Identification of trained dog guide. A trained dog guide used by a blind person is identified by the harness with rigid stirrup for the hand of the guided person that such dogs wear when in service. A trained dog guide used by a deaf person shall be identified by a credential presented by the deaf person on request, or by a tag or other identifying device that is adopted and promulgated so as to become generally known.))

[Statutory Authority: RCW 49.60.120(3). 82-19-086 (Order 41), 162-26-130, filed 9/22/82.]

AMENDATORY SECTION (Amending Order 43, filed 12/23/82)

WAC 162-26-140 Unfair to request or require waiver of rights. It is an unfair practice for any person to request or require another person to waive rights or hold anyone harmless as a condition of the use or enjoyment of a place of public accommodation by a ((handicapped)) disabled person. It is an unfair practice to request or require another person to waive rights or hold anyone harmless as a condition of the use or enjoyment of a place of public accommodation by a disabled person using a dog guide or service animal. This section is intended to prohibit waivers on the basis of ((handicap)) disability, but is not intended to preclude waivers required on a nondiscriminatory basis.

[Statutory Authority: RCW 49.60.120(3). 83-02-012 (Order 43), 162-26-140, filed 12/23/82.]

AMENDATORY SECTION (Amending WSR 96-13-045, filed 6/13/96, effective 7/14/96)

WAC 162-36-001 Definitions. (1) "Brokerage services" means access to or membership or participation in a multiple-listing service, real estate brokers' organization or other service, organization, or facility relating to the business of selling or renting dwellings;

(2) "Dwelling" means any building, structure or portion thereof that is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land that is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof;

(3) "Families with children status" means one or more individuals who have not attained the age of eighteen years being domiciled with a parent or another person having legal custody of such individual or individuals, or with the designee of such parent or other person having such legal custody, with the written permission of such parent or other person. Families with children status also applies to any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of eighteen years;

(4) "Real estate transaction" includes the sale, appraisal, brokering, exchange, purchase, rental, or lease of real property; transacting or applying for a real estate loan; the provision of brokerage services; or the making or purchasing of loans secured by residential real estate;

(5) "Real property" includes buildings, structures, dwellings, real estate, land, tenements, leaseholds, interests in real estate cooperatives, condominiums, and hereditaments, corporeal and incorporeal, or any interest therein;

(6) "Unfair practices on the basis of creed" or "discrimination on the basis of creed" includes, but is not limited to religious discrimination under the federal Fair Housing Amendments Act of 1988.

(7) "`Dog guide' means a dog that is trained for the purpose of guiding blind persons or a dog that is trained for the purpose of assisting hearing impaired persons."

(8) "`Service animal' means an animal that is trained for the purpose of assisting or accommodating a disabled person's sensory, mental, or physical disability."

[Statutory Authority: RCW 49.60.120(3) and 49.60.240. 96-13-045, 162-36-001, filed 6/13/96, effective 7/14/96.]

AMENDATORY SECTION (Amending WSR 96-13-045, filed 6/13/96, effective 7/14/96)

WAC 162-36-005 Discrimination. (1) It is an unfair practice for any person, whether acting for himself, herself, or another, because of sex, marital status, race, creed, color, national origin, families with children status, the presence of any sensory, mental, or physical disability, or the use of a trained ((guide dog or service dog)) dog guide or service animal by a disabled person:

(a) To refuse to engage in a real estate transaction with a person;

(b) To discriminate against a person in the terms, conditions, or privileges or a real estate transaction or in the furnishing of facilities or services in connection therewith;

(c) To refuse to receive or to fail to transmit a bona fide offer to engage in a real estate transaction from a person;

(d) To refuse to negotiate for a real estate transaction with a person;

(e) To represent to a person that real property is not available for inspection, sale, rental, or lease when in fact it is so available, or to fail to bring a property listing to his or her attention, or to refuse to permit the person to inspect real property;

(f) To discriminate in the sale or rental, or to otherwise make unavailable or deny a dwelling, to any person; or to a person residing in or intending to reside in that dwelling after it is sold, rented, or made available; or to any person associated with the person buying or renting;

(g) To make, print, publish, circulate, post, mail, or cause to be so made or 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 with respect thereto;

(h) To offer, solicit, accept, use, or retain listing of real property with the understanding that a person may be discriminated against in a real estate transaction or in the furnishing of facilities or services in connection therewith;

(i) To expel a person from occupancy of real property;

(j) To discriminate in the course of negotiating, executing, or financing a real estate transaction whether by mortgage, deed of trust, contract, or other instrument imposing a lien or other security in real property, or in negotiating or executing any item or service related thereto including issuance of title insurance, mortgage insurance, loan guarantee, or other aspect of the transaction. Nothing in this section shall limit the effect of RCW 49.60.176 relating to unfair practices in credit transactions;

(k) To attempt to do any of the unfair practices defined in this chapter or chapter 49.60 RCW.

(2) It is an unfair practice for any person, for profit, to induce or attempt to induce any person to sell or rent any real property by representations regarding the entry or prospective entry into the neighborhood of a person or persons of a particular race, creed, color, sex, national origin, families with children status, or with any sensory, mental or physical disability and/or the use of a trained ((guide dog or service dog)) dog guide or service animal by a disabled person.

(3) It is an unfair practice to insert in a written instrument relating to real property a provision that is void under RCW 49.60.224(1) or to honor or attempt to honor such a provision in the chain of title.

(4) Nothing in this chapter prohibits a person engaged in the business of furnishing appraisals of real property to take into consideration factors other than race, color, creed, national origin, sex, disability, the use of a trained dog guide or service animal by a disabled person, or families with children status.

(5) Nothing in this chapter limits the applicability of any reasonable federal, state or local restrictions regarding the maximum number of occupants permitted to occupy a dwelling.

(6) Nothing in this chapter prohibiting discrimination based on families with children status applies to housing for older persons as defined by the federal Fair Housing Amendments Act of 1988, 42 U.S.C. sec 3607 (b)(1) through (3), as amended by the Housing for Older Persons Act of 1995, P.L. 104-76, as enacted on December 28, 1995.

[Statutory Authority: RCW 49.60.120(3) and 49.60.240. 96-13-045, 162-36-005, filed 6/13/96, effective 7/14/96.]

AMENDATORY SECTION (Amending WSR 96-13-045, filed 6/13/96, effective 7/14/96)

WAC 162-36-010 Soliciting buyers from neighbors of listed house. Some real estate firms have a practice of sending letters, post cards or printed circulars to residents of a neighborhood where they have a home listed for sale in order to obtain referrals of prospective buyers of the home. Such a practice does not necessarily discriminate against persons on the basis of race, creed, color, national origin, sex, marital status, families with children status, the presence of a sensory, mental or physical disability or the use of a trained ((guide dog or service dog)) dog guide or service animal by a disabled person. However, the practice can have a discriminatory effect, and thereby constitute an unfair practice in a real estate transaction within the meaning of this chapter, where:

(1) It is used only in neighborhoods occupied entirely or predominantly by persons of a single race, creed, color, national origin, sex, marital status, families with children status, have the presence of a sensory, mental or physical disability, or who use a trained ((guide dog or service dog)) dog guide or service animal as a disabled person, or

(2) Persons of a particular race, creed, color, national origin, sex, marital status, families with children status, have the presence of a sensory, mental or physical disability, or use a trained ((guide dog or service dog)) dog guide or service animal as a disabled person living in the same neighborhood are not sent solicitations, or

(3) The content or language of the solicitation invites, promotes or perpetuates residential segregation or discrimination on the basis of race, creed, color, national origin, sex, marital status, families with children status, the presence of a sensory, mental or physical disability, or the use of a trained ((guide dog or service dog)) dog guide or service animal by a disabled person.

[Statutory Authority: RCW 49.60.120(3) and 49.60.240. 96-13-045, 162-36-010, filed 6/13/96, effective 7/14/96; Order 14, 162-36-010, filed 7/16/73.]

AMENDATORY SECTION (Amending WSR 96-13-045, filed 6/13/96, effective 7/14/96)

WAC 162-36-020 Content and language of solicitation. Residential segregation on the basis of race, creed, national origin or other ethnic classification is rooted in the history of this country and fixed in the patterns of thought of many people. The content and language of a solicitation of names of prospective purchasers directed to neighbors of a house listed for sale, must be examined in this context in assessing whether the solicitation constitutes an unfair practice within the meaning of RCW 49.60.222 and WAC 162-36-010. A solicitation which indicates that the recipient of the solicitation can control the type of persons who will move into the neighborhood by referring appropriate prospective buyers, is likely to be understood as an invitation to discriminate on the basis of race, creed, color, national origin, sex, marital status, families with children status, the presence of a sensory, mental or physical disability, or the use of a trained ((guide dog or service dog)) dog guide or service animal by a disabled person. Phrases such as "uphold the standards of the community" (when the "standards" are unspecified) are likely to be understood the same way. Accordingly, it is an unfair practice under RCW 49.60.222 and WAC 162-36-010 for the content or language of a neighborhood solicitation to:

(1) Suggest in any way that the solicitor, buyer or seller has the power to control the type or character of the person or persons to whom the property involved may be sold;

(2) Invite or provoke discriminatory feelings, actions, or responses from the person or persons being solicited;

(3) Make reference to an assumed standard of the community which the solicitor, buyer or seller must or will uphold, unless the particular community standard is identified specifically, and the standard does not have the effect of excluding persons of a particular race, creed, color, national origin, sex, marital status, families with children status, the presence of a sensory, mental or physical disability, or the use of a trained ((guide dog or service dog)) dog guide or service animal by a disabled person.

[Statutory Authority: RCW 49.60.120(3) and 49.60.240. 96-13-045, 162-36-020, filed 6/13/96, effective 7/14/96; Order 14, 162-36-020, filed 7/16/73.]

Chapter 162-38 WAC


REAL ESTATE TRANSACTIONS, ((HANDICAP)) DISABILITY DISCRIMINATION

AMENDATORY SECTION (Amending WSR 96-13-045, filed 6/13/96, effective 7/14/96)

WAC 162-38-010 Scope and purpose of chapter. (1) Confined to unfair practices. This chapter interprets and implements the disability discrimination coverage provided by the law against discrimination regarding unfair practices in real estate transactions, RCW 49.60.222 through 49.60.340. This chapter applies to the unfair practices which the commission is empowered by RCW 49.60.120(4) to eliminate and prevent through the administrative process provided in RCW 49.60.230 through 49.60.270.

(2) Principal statutes interpreted. The statutes principally interpreted in this chapter are RCW 49.60.222 through 49.60.225. This chapter does not define the scope of the civil right to be free from discrimination because of a disability declared in RCW 49.60.030 or interpret other statutes.

(3) Sources of policy guidance. In applying and interpreting the provisions of the law against discrimination regarding discrimination in real estate transactions based upon the presence of a sensory, mental or physical disability or the use of a trained ((guide dog or service dog)) dog guide or service animal by a disabled person, the commission is guided by the following:

(a) Legislative policy statements found in RCW 49.60.010, 49.60.030, 70.84.010 and 70.92.100; and

(b) The federal Fair Housing Amendments Act of 1988, 42 U.S.C. 3601, et seq.

(4) Related statutes and regulations. Chapter 70.92 RCW (provisions in buildings for aged and disabled persons); chapter 70.84 RCW ("white cane law" for disabled persons); chapter 19.27 RCW (state building code); chapter 162-26 WAC (disability discrimination in public accommodations); chapter 162-22 WAC (disability discrimination in employment); chapter 162-40 WAC (disability discrimination in credit transactions); chapter 162-36 WAC (unfair practices in real estate transactions); and chapter 51-30 WAC (standards for barrier-free facilities).

[Statutory Authority: RCW 49.60.120(3) and 49.60.240. 96-13-045, 162-38-010, filed 6/13/96, effective 7/14/96. Statutory Authority: RCW 49.60.120(3). 82-19-086 (Order 41), 162-38-010, filed 9/22/82.]

AMENDATORY SECTION (Amending WSR 96-13-045, filed 6/13/96, effective 7/14/96)

WAC 162-38-040 Definitions. The following words or phrases are used in this chapter in the meaning given, unless the context clearly indicates another meaning.

"Accessible" means usable or understandable by a person who is disabled, with reasonable effort and in reasonable safety.

"Standards for barrier-free facilities" means standards for making building and facilities accessible to physically disabled persons, pursuant to chapter 51-30 WAC and chapter 70.92 RCW. See WAC 162-38-030(2), 162-38-070.

"Disability" is short for "the presence of a sensory, mental or physical disability."

"Landlord" means anyone other than the occupant of real property who attempts to control use of the property under claim of right arising out of an ownership interest in real property by that person or another person for whom that person acts. The term includes owners of rental property, trustees, receivers, persons controlling the common areas used in connection with condominiums, and agents or others acting in the interest of any such persons.

"Rental property" includes real property that is rented or leased, offered for rental or lease, or built or maintained for rental or lease.

"Structural" means the load-bearing members and essential structure or composition of a place, as distinguished from its finish, decorations or fittings. Examples of structural components are floors, walls, stairs, door openings, sidewalks, elevators, and escalators. Examples of things that are not structural are moveable walls, bathroom fixtures and partitions, fixtures such as water fountains (whether or not attached to a wall), doors and door hardware, cabinets, counters, handrails, signs (attached or painted), elevator controls, alarm systems, and carpeting and other floor covers.

"Tenant" is a person who rents or seeks to rent real property.

"`Dog guide' means a dog that is trained for the purpose of guiding blind persons or a dog that is trained for the purpose of assisting hearing impaired persons."

"`Service animal' means an animal that is trained for the purpose of assisting or accommodating a disabled person's sensory, mental, or physical disability."

[Statutory Authority: RCW 49.60.120(3) and 49.60.240. 96-13-045, 162-38-040, filed 6/13/96, effective 7/14/96. Statutory Authority: RCW 49.60.120(3). 82-19-086 (Order 41), 162-38-040, filed 9/22/82.]

AMENDATORY SECTION (Amending WSR 96-13-045, filed 6/13/96, effective 7/14/96)

WAC 162-38-050 Who is protected. (1) Scope. RCW 49.60.222 defines practices in connection with real estate transactions that are unfair when done because of "the presence of any sensory, mental, or physical disability, or the use of a trained ((guide dog or service dog)) dog guide or service animal by a ((blind, deaf or physically)) disabled person." Nothing in this chapter or in chapter 49.60 RCW, however, prohibits treating disabled persons more favorably in a real estate transaction than persons who are not disabled.

(2) Presence of disability. The presence of a sensory, mental, or physical disability includes, but is not limited to, an abnormal condition that:

(a) Is medically cognizable or diagnosable;

(b) Exists as a record or history; or

(c) Is perceived to exist, whether or not it exists in fact.

[Statutory Authority: RCW 49.60.120(3) and 49.60.240. 96-13-045, 162-38-050, filed 6/13/96, effective 7/14/96. Statutory Authority: RCW 49.60.120(3). 82-19-086 (Order 41), 162-38-050, filed 9/22/82.]

AMENDATORY SECTION (Amending WSR 96-13-045, filed 6/13/96, effective 7/14/96)

WAC 162-38-060 General rules. (1) General principles apply. The unfair practices in real estate transactions as defined in RCW 49.60.222 through 49.60.225 apply to claims of disability discrimination. This chapter deals with special questions as to the application of the law to disability discrimination. Where no special provision is made by the statute, by this chapter, or by exception by the commissioners under WAC 162-06-030, general principles of nondiscrimination apply.

(2) Statutory rules. It is an unfair practice for any person to do any of the acts enumerated in RCW 49.60.222 through 49.60.225 because of the presence of a sensory, mental or physical disability or the use of a trained ((guide dog or service dog)) dog guide or service animal by a disabled person. For purposes of this chapter, an unfair practice in a real estate transaction on the basis of a disability includes discrimination because of a disability of the 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.

[Statutory Authority: RCW 49.60.120(3) and 49.60.240. 96-13-045, 162-38-060, filed 6/13/96, effective 7/14/96. Statutory Authority: RCW 49.60.120(3). 82-19-086 (Order 41), 162-38-060, filed 9/22/82.]

AMENDATORY SECTION (Amending Order 41, filed 9/22/82)

WAC 162-38-100 Persons with dog guides or service animals.

(1) Are protected. RCW 49.60.222 protects ((blind or deaf)) persons with disabilities from discrimination because of their use of a trained dog guide or service animal the same as it protects them from discrimination directly because of ((handicap)) disability.

(2) General rule. The same rules that apply to the treatment of persons because of ((handicap)) disability under RCW 49.60.222 and this chapter apply to the treatment of ((blind or deaf)) persons with disabilities because they use a trained dog guide or service animal.

(3) Landlord's duty. It is an unfair practice for a landlord to refuse to rent to a ((blind or deaf)) person with a disability because the person uses a trained dog guide or service animal. A landlord's no-pet policy cannot be applied to the dog guide or service animal of a ((blind or deaf)) person with a disability.

(4) Cleaning or damage deposits not unfair. It is not an unfair practice for a landlord to enforce on a ((blind or deaf)) tenant with a disability its standard cleaning or damage deposit for dogs or other animals. It is not an unfair practice for a landlord who otherwise doesn't allow dogs or other animals in the rented property to require a reasonable cleaning or damage deposit for the dog or other animal when renting to a ((deaf or blind)) person with a disability using a trained dog guide or service animal.

(((5) "Dog guide" defined. For purposes of RCW 49.60.222 the term "dog guide," means a trained dog guide used by a blind or deaf person. It has the same meaning as "guide dog" in RCW 70.84.020:

"The term 'guide dog' shall mean a dog which is in working harness and is trained or approved by an accredited school engaged in training dogs for the purpose of guiding blind person or a dog which is trained or approved by an accredited school engaged in training dogs for the purpose of assisting hearing impaired persons."

(6) Identification of trained dog guide. A trained dog guide used by a blind person is identified by the harness with rigid stirrup for the hand of the guided person that such dogs wear when in service. A trained dog guide used by a deaf person shall be identified by a credential presented by the deaf person on request, or by a tag or other identifying device that is adopted and promulgated so as to become generally known.))

[Statutory Authority: RCW 49.60.120(3). 82-19-086 (Order 41), 162-38-100, filed 9/22/82.]

AMENDATORY SECTION (Amending WSR 96-13-045, filed 6/13/96, effective 7/14/96)

WAC 162-38-120 Unfair to request or require waiver of rights. It is an unfair practice for any person as a condition of entering into or continuing a real estate transaction to request or require another person to waive rights or hold anyone harmless because the real property will be occupied by a disabled person or by a person with a disability using a trained dog guide or service animal.

[Statutory Authority: RCW 49.60.120(3) and 49.60.240. 96-13-045, 162-38-120, filed 6/13/96, effective 7/14/96. Statutory Authority: RCW 49.60.120(3). 82-19-086 (Order 41), 162-38-120, filed 9/22/82.]

NEW SECTION

WAC 162-38-130 Behavior causing risk. Behavior or actions of a dog guide or service animal that constitutes an unreasonable risk to property or other persons can be grounds to request that a dog guide or service animal be removed, and shall not constitute an unfair practice.

(1) General rule. If a reasonable attempt to eliminate the behavior or actions of a dog guide or service animal that constitutes an unreasonable risk to property or other persons fails, it is not an unfair practice under RCW 49.60.222 to request that the dog guide or service animal be removed from a housing unit.

(2) Individual judgment required. To come within this exception, the removal of a dog guide or service animal must be based on knowledge of the present behavior or actions of the dog guide or service animal. It is an unfair practice to exclude all of the particular dog guides or service animals unless the property owner can show that all of the particular dog guides or service animals will present an unreasonable risk to persons or property.

(3) Likelihood of injury. Risk to property or other persons must be immediate and likely, not remote or speculative.

(4) Degree of risk. Risk of injury to persons may be given more weight than risk of injury to property. Risk of severe injury may be given more weight than risk of slight injury.

(5) Annoyance to staff or other tenants. Annoyance on the part of staff or other tenants of a rental property at the presence of the dog guide or service animal is not an unreasonable "risk to property or other persons" justifying the removal of the dog guide or service animal.

(6) Least discriminatory solution required. When risk justifies the removal of a dog guide or service animal from a rental property, efforts must be made to reasonably accommodate the person with the disability.

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