Feds Confuse Pool Safety Rules
Most swimming pools have a list of rules posted somewhere on the premises. We’ve all seen them. The rules contain common sense prohibitions against dangerous pool activities, such as having glass in the pool area and diving into the shallow end. And almost every set of pool rules contains a statement similar to this: “No one under the age of 18 may use the pool unless accompanied by a parent or guardian.” This rule is intended to protect children from the pool and the pool from children. It makes sense, right? Last summer a child tragically drowned in a Charlotte apartment pool where he was swimming in the absence of adult supervision. Would the child’s life have been saved, if an adult had been present? Sadly, we’ll never know the answer to that question. But according to a 2012 federal court opinion from California (Iniestra v. Cliff Warren Investments), a pool rule requiring adult supervision violated the Fair Housing Act (FHA) because it discriminated against families with children. In explaining its opinion, the federal court found the rule requiring adult supervision to not make perfect sense if its goal was to ensure the safety of all swimmers. The court noted that the Iniestra children, who were competent swimmers, were not allowed in the pool facility without a parent, but yet adults who never swam a day in their life could use the pool facility without any supervision. Also illogical was that a certified lifeguard who was under the age of 18 could not use the pool without the presence of a parent or guardian. Most homeowners’ association boards are aware that the FHA prohibits discrimination on the basis of race, religion, sex, and disability. But the law is much broader. The FHA also prohibits discrimination on the basis of “familial status,” which applies to children that live with a parent or other guardian. Just as with other forms of discrimination prohibited by the FHA, homeowners’ association boards, their directors, and managers can be sanctioned, ordered to community service or FHA training, and even fined thousands of dollars. So swim clubs or any other common area or amenity areas where the HOA rules treat children differently than adults could violate FHA and those rules should be vetted for enforceability and potential for FHA liability. This could include rules designating “adult swim” periods or curfews on children in the common areas or other restrictions for amenity use by children. Other federal cases have held that “adult swim” periods violate the FHA, but suggest that associations can avoid a violation by allowing general “lap swim” periods which are not restricted by age. But what about state laws? Both North and South Carolina have laws requiring the posting of warning signs at pools that potentially violate the FHA. South Carolina requires a posting that “no children should be in the pool without supervision.” Similarly, in North Carolina it is necessary to post that “children should not use the swimming pool without adult supervision.” There are also general state laws requiring parents or guardians to properly supervise juveniles. While federal laws typically trump state laws, logic dictates that some reasonable form of age restrictions relevant to pools would ultimately pass an FHA test as non-discriminatory purely as a safety measure if nothing else. It is common for states to differentiate the level of supervision required for children starting at age 14, and that very well could be the magic age for FHA-appropriate pool safety rules. So how do we make common sense rules for the safety of the people who use our amenities without violating the FHA? The simplest explanation is to make rules as age-neutral as possible. Instead of requiring “supervision by an adult,” we might say “supervised by a competent swimmer.” Instead of having a rule that “children” should not play in the parking areas, we might say that “no one” should play in the parking areas. The FHA is a complex maze of well-intended protections. Judges, attorneys, and legislators often disagree as to what the FHA means and what it prohibits. On top of that there are exemptions that could apply, such as for a senior-living community where rules regarding children may not violate FHA. Associations should have their policies relating to children reviewed starting with pool rules. Summer is looming.