Some communicated we may no longer institute an adult only swim because it discriminates by age. Is that true?
I do not believe that an adult swim would constitute age discrimination. It is something of limited duration and not an total ban. Further, age discrimination usually comes up in the employment context. Age usually comes up in this arena when talking about 55 and over communities.
Sara A. Austin
Austin Law Firm LLC
226 E. Market St.
York, PA 17403
717.846.2246 phone
717.846.2248 fax
saustin@austinlawllc.com
Most association swimming pools have them: A laminated poster, displayed prominently (sometimes repeatedly), listing a number of rules and regulations for use of the pool. Examples of such rules include “no diving”, “no running”, “no horseplay”, “no glass containers”, and “no children under the age of 18 permitted without adult supervision”.
In this age where lawsuits seem to be filed over everything, common sense is often reduced to writings and warnings. Have you bought a ladder lately and counted the number of safety warnings? Pool rules similarly exist to ensure the safe and proper operation of swimming facilities, and to help shield associations from liability in the event an injury occurs and a lawsuit is filed. It is thus ironic when rules promulgated for the purpose of risk management result in litigation – except that instead of claims over personal injury or drowning, the rule itself is challenged as discriminatory.
Enter the Fair Housing Act (FHA), a federal anti-discrimination law which among other entities, is applicable to condominium and homeowners associations. Relevant to this article is Section 3604 of the FHA:
§ 3604. Discrimination in the sale or rental of housing and other prohibited practices.
… except as exempted by sections … §§ 3603(b), 3607 [age qualified communities], it shall be unlawful–…
(b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin….
Since adoption of the FAH in 1988, a number of lawsuits have challenged swimming pool rules on the basis that they constitute discrimination against “familial status” (against families with children). Several of these cases have held that rules requiring adult supervision, adult only swim times, and no-children areas, violate the Fair Housing Act. Consider the following examples:
Iniestra v. Cliff Warren Investments, Inc., C.D.Cal.2012, 886 F.Supp.2d 1161 (California). In this California case, an 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”. After being cited for violations of this rule, the plaintiff’s (a husband and wife with 3 children) filed suit alleging that the pool rule violated the Fair Housing Act. 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 determined to be “facially discriminatory”, a defendant must establish that the subject regulation is the “least restrictive means to meet a compelling business necessity”. Citing to similar cases, the court held that “a prohibition on unsupervised swimming which would prevent even a 17-year old certified lifeguard from swimming unaccompanied is overly restrictive”. Similarly, “while the Court recognizes the inherent dangers of unsupervised swimming, the requirement of 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 roof tops, or required all residents to maintain a certain noise level.”
Discrimination was likewise found in the case of Llanos v Estate of Coehlo (1998, ED Cal) 24 F Supp 2d 1052 (California), concerning a rule that restricted children’s swimming pool access to “family pools”, and prohibited children from playing in and around “adult areas”. A lease provision prohibiting children under age of eighteen from using a facilities’ swimming pool was also found to unlawfully discriminate against children in the case of Barbara King v Jeff Edelstein (12/9/91) HUDALJ 05-90-0821-1 (Ohio).
Associations should thus exercise caution when adopting and enforcing pool rules. Rules which limit conduct to individuals of certain ages (for example children age 10, or 14, or 18) are facially discriminatory, and should be avoided. Rules should address conduct, not age or status – and constitute the least restrictive means to meet a compelling business necessity (such as safety and peaceful enjoyment). As a practitioner, it is my experience that pool rules are intended to keep children safe – not to keep them out. Although most adults will rarely dive into the shallow end, engage in “horseplay”, or run around the pool deck, such matters must be legislated in a facially non-discriminatory matter. While this exercise requires Boards to balance legitimate business reasons against potential allegations of discrimination, reasonable health and safety rules will continue to be enforceable. However, as use and conduct are fact specific, attorney review of the language of proposed (or existing) rules, and of the manner in which they are enforced may be recommended. Such analysis should also consider that although the foregoing cases interpret the same federal statute, courts in other jurisdictions may reach varying results.
Different considerations apply to age-qualified communities, which by definition discriminate based on familial status. Fifty-five-and-over communities are expressly exempted from certain discrimination by Section 3607 of the FHA, 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;
It would therefore appear that communities which qualify as “housing for older persons” are permitted to discriminate against families with children.
Congress intended the FHA to protect families with children while still “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).
Clearly, this is true for occupancy rules, where residents in at least 80 percent of homes must be over the age of 55. Most if not all of these associations also prohibit occupancy of units by persons under the age of 19 (children). And, as age qualified communities are “intended and operated for occupancy by persons 55 years of age or older”, limiting (or prohibiting) use of their amenities by children would likewise be appropriate. However, our research has not revealed any reported decisions on the issue of whether pool or other rules promulgated by age-qualified communities are immune from challenge (based on familial status). As a practitioner, I nonetheless recommend that rules meet standards of reasonableness, and be drafted to address conduct rather than age or status.
STEFAN RICHTER, ESQUIRE
CLEMONS RICHTER & REISS, P.C.Attorneys at Law
Fellow, College of Community Association Lawyers
2003 SOUTH EASTON ROAD, SUITE 300
DOYLESTOWN, PA 18901
Phone: 215.348.1776
Fax: 215.348.9450
www.clemonslaw.com
Yes, that is true. In addition to requiring a reasonable accommodation in rules, policies, practices or services to afford a person with a disability the equal opportunity to use and enjoy a dwelling, the Fair Housing Act also prohibits discrimination on the basis of, among other things, familiar status. It would be a violation of the Fair Housing Act to permit an adult only swim as this would have a discriminatory affect upon families with children.John H. Gettinger, EsqShapiro Gettinger Waldinger & Monteleone, LLP118 North Bedford Road,Mount Kisco, New York 10549(914) 666-8033(914) 666-4459The Fair Housing Amendments Act of 1988 made it unlawful, in the housing setting, to discriminate against families with children. It was likely initially intended simply to prevent landlords and developers from turning away folks with children, except in communities designated for those 55 and older.
The fact is, however, that because the statute created as a civil right, the effect of the law has been expanded to cover a number of additional scenarios.
While there has been no case in the Third Circuit of the Federal Court (our Circuit), other Circuits have held in certain cases that “adults only” swim rules can be discriminatory. In some instances, the discrimination has been obvious, such as in the case of the community that had 5 pools, and only allowed children in one of them.
Others, also found to be discriminatory, were more subtle, such as requiring that unless you are 18 years of age or older, you had to be under the supervision of an adult while using the clubhouse. There is no reason a 17-year old can’t swim, if he/she is capable, without adult supervision.
Even facially neutral community association rules and regulations, under the FHAA are unlawful if they have a discriminatory effect. So, for example, in a California case, Dumas v. Sunview Properties, a “no playing” rule was held to be discriminatory because it primarily affected children. The Plaintiff asserted in that case that the rule was discriminatory because it treats children less favorably that adult-only households.
If an Association or Developer does discriminate as a matter of business necessity, it must do so in the least restrictive means of accomplishing the purpose of the rule. Thus, the Courts have struck down rules saying that children under 18 must be supervised by an adult in order to use the clubhouse, and children under 14 to be supervised by a parent or legal guardian to use the pool, as overbroad, unduly restrictive.
Suggestions:
Ask why you want to keep the children from the pool at certain times. If adults want to swim laps and are afraid that they will crash into small children then restrict lap lanes to those swimming laps.
If you want adults to be free from being splashed at certain times, have no-splash zones. You may find that it is nice when the adults don’t splash either.
If you want the pool to be quiet, create quiet times. In other words, focus upon behavior rather than broad generalizations and assumptions based upon age. Don’t be over-broad. Don’t forbid such things as “playing”. Forbid trampling flower beds and ball-playing in the inner courtyard, where window are likely to get broken.Robert Griffin, Esq.Griffin Alexander PC415 Route 102nd FloorRandolph NJ 07869-2100rgriffin@lawgapc.comTel:973- 366-1188Fax:973-366-4848The Federal Fair Housing Act [the “Act”] prohibits policies that discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services, or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin. “Familial status” under the Act, is defined as one or more individuals under the age of 18 being domiciled with a parent or any another person having legal custody. Hence, the issue concerns status and not age. As such, any policy that intentionally discriminates against families with children or a policy although neutral on its face, has a discriminatory impact, is prohibited. Courts have found that rules that limit childrens’ access to common amenities based solely on the fact that the children are under 18 violate the Act. An adult only swim is likely to be held to be facially discriminatory because it treats children and families with children differently and less favorably than households composed of adults only. The inquiry does not indicate what the stated justification for the adult only swim may be. An Association may attempt to rebut a presumption of discrimination by articulating a legitimate, non -discriminatory justification for the rule. However, a blanket adult only policy, based upon the desire to enjoy the pool with peace and tranquility, will likely be found to be discriminatory.
Angela M. Morisco
Attorney at Law
Becker & Poliakoff
1776 on the Green 67 Park Place, Suite 702Morristown, NJ 07960
Tel: 973.998.9386Fax: 973.898.6506
AMorisco@bplegal.com