For many of these same reasons, many condominium and homeowner association projects are built with community pools. In order to protect the interests of their members, guests and invitees, many of these communities enact pool rules and regulations for safety and health reasons in order to prevent accidents and injuries. One can often find rules and regulations that restrict the age of the individual using the pool, the time when the pool can be used, the clothing to wear in and around the pool, the items that can be brought to the pool and/or used in the pool, and the activities that can be conducted in or around the pool.
Unfortunately, boards of directors are now more frequently facing discrimination accusations about the appropriateness of these rules and regulations by their membership under the Fair Housing Act (“FHA”). This article will examine how swimming pool rules and regulations are impacted by the FHA, describe litigation that has taken place under the FHA, review the FHA senior living exception and make recommendations regarding pool rules and regulations.
The Fair Housing Act
The FHA, which is codified at 42 U.S.C. §§ 3601 – 3619, was originally adopted in 1968 and prohibits discrimination based on race, color, religion, sex, or national origin. The FHA was amended in 1988 to add protected classes of disability and familial status. The U.S. Department of Housing and Urban Development (“HUD”) administers and enforces violations of the FHA.
Many of the provisions of the FHA do not typically apply to community associations, but discrimination allegations are most often made under 42 U.S.C. § 3604(f) and, in particular, § 3604 (f)(2). These provisions preclude discrimination on the basis of “familial status”, which means discrimination against families with children. Familial status protection also applies to pregnant women and anyone securing legal custody of a child under 18. Thus, HUD will claim an association is violating the FHA if an association treats families with children differently than other residents in the community, either through direct discrimination or discriminatory enforcement of an association’s rules or restrictions.
Litigation under the FHA
Since the 1988 amendments, there have been a number of lawsuits that have challenged swimming pool rules on the basis that they discriminate on the basis of familial status. These cases have held that restrictions on children’s use of a swimming pool, where those same restrictions do not apply to other adult residents, are prima facie cases of discrimination under the Act.
As set forth above, most association rules and regulations are drafted to address concerns about safety and health, which have typically resulted in boards adopting rules that limit children’s use of the pool. Although keeping the pool safe and sanitary presents a compelling business necessity for associations, the FHA requires that boards come up with more inventive ways to address their safety and sanitation concerns than simply forbidding minors under a certain age or non-toilet trained children from using the pool.
The courts have found that the only way associations may avoid liability for rules that discriminate against children is to demonstrate: (1) that the pool rule is rooted in a “compelling business necessity,” and (2) that the rule constitutes the “least restrictive means” to achieve the desired effect.
For example, in Iniestra v. Cliff Warren Investments, Inc., C.D.Cal.2012, 886 F.Supp.2d 1161 (California), a California apartment complex rule stated that “Children under the age of 18 are not allowed in the pool or pool area at any time unless accompanied by their parents or legal guardian”. The court found that the rule was “facially discriminatory”, in that it “treated children, and families with children, differently and less favorably than adult-only households”. Once the Court determined the rule to be “facially discriminatory”, the apartment complex was required to establish that the rule is the “least restrictive means to meet a compelling business necessity”. The Court found that the apartment complex could not establish its burden and found that “a prohibition on unsupervised swimming which would prevent even a 17-year old certified lifeguard from swimming unaccompanied is overly restrictive”. The Court further found that “while the Court recognizes the inherent dangers of unsupervised swimming, the requirement of a parent or legal guardian supervision transforms this rule from one that could be reasonably interpreted as a safety precaution to one that simply limits children and their families”. Although the court offered no guidance regarding pool rules, it wrote the following concerning noise and adult supervision: “Indeed, children might make noise even if their parents are present. More appropriate policies might have simply prevented children from playing near gates or on the rooftops, or required all residents to maintain a certain noise level.”
In Llanos v. Coehlo, 24 F. Supp. 2d 1052 (C.D. Cal. 1998), a federal court found that the association’s rules designating “family pools” and “adult areas” in the complex and prohibiting children from playing in and around adult areas of the complex were discriminatory and violated the Fair Housing Act. (Also see U.S. v. Plaza Mobile Estates, cited below.)
A similar decision was reached by a federal court in the unpublished case of Landesman v. Keys Condo. Owners Ass’n, 2004 WL 2370638 (N.D. Cal. Oct 19, 2004), aff’d, 125 F. App’x 146 (9th Cir. 2005). The association’s reason for restricting children from the main pool was that adults enjoyed using the pool for lap swimming and they preferred the relative tranquility of a swimming pool not filled with active, noisy children. Although sympathetic, the court ruled against the association.
In United States of America v. Plaza Mobile Estates, et al., 273 F. Supp. 2d 1084 (C.D. Cal. 2003), the Court held that rules requiring adult supervision for children under 18 years old using recreational facilities in a community, including the community swimming pool, were discriminatory and violated the Fair Housing Act because they treated children, and thus families with children, differently and less favorably than adult-only households. In addition, the Court in Plaza Mobile Estates held that the ability to swim unsupervised is not solely dependent on age alone because in many cases young children can swim very well, while there are some older adults who cannot swim well.
Similar to the Court’s finding in Iniestra, the Court in Plaza Mobile Estates further found that it was illogical, for instance, that a 17-year-old certified lifeguard who is a strong proficient swimmer would be prevented from swimming if unsupervised in the community pool because he/she is not 18 years old, while an older adult who is not a proficient swimmer would be allowed to swim unsupervised in the community pool.
Exceptions for Senior Communities
Section 3604 of the FHA provides an exception for Fifty-five and over communities that qualify under the Housing for Older Persons Act of 1995 (42 USC § 3607(b)(2)(C)) (“HOPA”). § 3607, which in relevant part provides as follows:
- 3607. Religious organization or private club exemption
(b) (1) … Nor does any provision in this title regarding familial status apply with respect to housing for older persons.
(2) As used in this section, “housing for older persons” means housing–
(C) intended and operated for occupancy by persons 55 years of age or older, and–
(i) at least 80 percent of the occupied units are occupied by at least one person who is 55 years of age or older;
Congress intended to balance the interests of the FHA to protect families with children while at the same time “fully protect[ing] the rights of senior citizens who live in retirement communities, and allow[ing] those communities to exclude families with children if they so choose.” 134 Cong. Rec. H4603 at *H4607 (daily ed. June 22, 1988). Thus, on its face, the HOPA provisions would appear to allow age-qualified communities to limit and/or prohibit the use of their amenities by children. Moreover, according to the Department of Housing and Urban Development (HUD):
If a housing community facility qualifies under HOPA as housing for older persons, the community facility is exempt from the Act’s prohibition against discrimination on the basis of familial status. The housing community facility may restrict families with children from benefits of the community, or otherwise treat family households differently than senior households… (HUD Q & A re HOPA)
However, since members have the right to have guests, including children, it would still be prudent that any rules and regulations meet standards of reasonableness and be drafted to address conduct rather than age or status to avoid potential claims which may cause unnecessary expenses to defend the rules and regulations from claims of discrimination.
Consequences for FHA Violations
Penalties for violations of the Fair Housing Act can vary depending on whether the case is processed via court, HUD or elsewhere and can result in fines up to $16,000.00 for the first offense and up to $65,000.00 for repeated offenses. If the case involves the Justice Department, the penalties can go up to $100,000.00. Moreover, punitive damages can be awarded by the federal court, and the violator could be held responsible for compensation for actual damages, including humiliation, mental distress, and loss of housing opportunity. In addition, the Association can be responsible for the attorney fees and costs incurred by the Plaintiff. Additionally, HUD keeps a record of all charges that are filed through them and makes that information publicly available.
Recommendations for Pool Rules & Regulations
When considering implementing new or amending existing pool rules and regulations, Boards should consider the following guidelines:
- Boards should refrain from using subjective standards and instead use objective standards, issued by manufacturers of the diving board, slide, etc. So rather than stating “Children under the age of eighteen (18) years of age cannot use the diving board and slide”, the board can implement a rule that states that “the manufacturer of the diving board and slide recommend that only people over the age of twelve (12) years of age be allowed to use the diving board and/or slide”.
- Boards should refrain from having rules and regulations that are an outright ban on children’s use of pool; rather boards should implement rules and regulations that require supervision of children under a certain age. Many such rules have set the age as fourteen (14) years of age due to the fact that the Red Cross requires students to be at least fifteen (15) years old by the last day of class to be certified as lifeguards. However, please note that although there have been courts that have allowed such supervision rules based on the age of the child, one court has held that a pool rule requiring “children under 14 to be supervised by a parent or legal guardian while using the Pool and Spa…” familial discrimination under the FHA.
- Boards should refrain from having rules and regulations that indicate a “parent” must be present. The board should rather implement rules and regulations that indicate a supervising adult should be present.
- Boards should refrain from having rules and regulations that target a person’s particular attire that could be a basis for discrimination claims based on gender and/or religion. Thus, rules and regulations should simply state that the Association has the right to remove an individual for any conduct that poses a safety risk to anyone in the pool area, for any immoral, improper, unlawful or offensive behavior or any behavior which becomes an annoyance or a nuisance to anyone in the pool area.
- Boards should refrain from creating adult-only times, limiting children’s access to pools to only certain hours of the day and/or creating adult and family pools. Boards can achieve similar results by having lap swimming for everyone during certain times of the day and/or areas of the pool.
- Boards should refrain from creating rules and regulations that state that “any children who are not toilet trained are not allowed to use the pool”. Instead, the rule or regulation can be rewritten to state that “children who are not toiled trained are required to use waterproof pants or diapers in the pool”.
- Boards should refrain from having rules and regulations that ban all animals from the pool area. Boards should use language that allows a member of the association to bring their animal to the pool area if the animal is a service or emotional support animal.
Finally, as with all of the association’s rules and regulations, pool rules and regulations should be put in writing, distributed to the membership and enforced consistently, non-discriminatory and if exceptions are made, to ensure that those exceptions are also consistently made.
Care must be taken when drafting pool rules and regulations to avoid discrimination claims under the FHA and the consequences of violations can be harsh. Boards should write their rules and regulations to address conduct rather than the age or status of the individual. Moreover, the rules should be written such that they are the least restrictive means to the association’s compelling business reason. Since the use of the pool and conduct in and around the pool are very fact specific, in order to avoid violating the FHA, associations should consider contacting competent legal counsel to review their existing pool rules and regulations and any proposed revisions. If you have any questions regarding your pool rules and regulations, please contact our office online or call 248-986-2921 (Farmington) or 231-486-5600 (Traverse City) or 616-319-9964 (Grand Rapids office).
 Boards should be aware that most associations will not be subject to the Americans With Disabilities Act (“ADA”), which Congress enacted in 1990 and which prohibits discrimination against the disabled in places of public accommodation, because their pools are only open to owners and residents and thus, do not qualify as places of public accommodation and are not subject to the ADA’s requirements. However, there is an exception to this rule if a community association opens up its facilities to the public, such as when a community association’s pool is used for a swim meet with a team from another community. If a community association does engage in activities that make it a place of public accommodation, then it is subject to the requirements of the ADA for that portion of the property and may be required to install accessibility features.
 See Pack v. Fort Washington II, 689 F.Supp.2d 1237 (E.D.Cal. 2009)