Swimming pools and children. For some associations, the two do not always go together peaceably. Many associations wishing to create “adults only” pool time have adopted rules that prohibit children from the swimming pool during certain times, etc., and in the process have violated the Fair Housing Amendments Act of 1988 (“the Act”).
 
The Act was amended in 1988 to prohibit discrimination against any person in their use of a dwelling based on their “familial status.” The Act defines “familial status” as a situation where one or more minors are domiciled with a parent, legal guardian, or the designee of a parent or guardian. The United States Department of Housing and Urban Development (“HUD”) is the governmental agency responsible for implementing the provisions of the Act. HUD adopts regulations to clarify the prohibited acts of discrimination in housing. These regulations include a prohibition against rules that have the effect of restricting a resident’s use of the recreational facilities associated with a dwelling based on their familial status. HUD and various cases have found that the Act clearly applies to associations’ swimming pools.        
 
If a court finds that an association has adopted rules that violate the Act, the association will be responsible for the costs of defending against any such claims, and the association may be responsible for paying monetary damages (actual and punitive), plus the attorneys’ fees of the complaining resident. Therefore, it is in an association’s best interests to have legal counsel review its pool rules to determine whether they violate the Act. Once it has been discovered that a rule potentially violates the act, that rule must be abandoned or modified. It is not sufficient to take the issue under advisement or investigation.
 
A quick glance at most associations’ rules regarding swimming pools will likely uncover at least one rule prohibited by the Act. These include certain rules based on age, restrictions against children wearing diapers in the pool, adult-only pools and adult-only hours or swim times. These rules are facially discriminatory under the Act as they appear to discriminate against families with children by not providing equal access to the swimming pool to all residents. Over the past decade, a number of court decisions have applied the provisions of the Act to community association swimming pool rules and regulations. The 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.
 
Courts have found that the only way an association may avoid liability for rules that discriminate against children is to show two things: (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. In the context of swimming pools, concerns about safety and sanitation typically prompt associations to adopt rules that limit children’s use of the pool. Of course, keeping the pool safe and sanitary presents a compelling business necessity, but the Act requires that associations 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.
 
To better understand what types of pool rules can be validly adopted, a review of several cases is helpful. 

•  An association’s rule forbidding children under 18 to swim without an adult was found by the courts to be in violation of the Act because it was overly restrictive. The court reasoned that under such a rule, even a 17-year old certified life guard could not swim alone. Less restrictive means could achieve the same safety goals by requiring persons without swimming skills to be accompanied by a person with swimming skills, regardless of age.
 
•  A rule prohibiting all non-toilet trained children in the pool was also a violation because the goal could have been achieved by requiring all non-toilet trained persons to wear waterproof pants. 
 
•  Prohibiting baby strollers, walkers and playpens from the pool area was considered discriminatory even though it was clearly based upon safety concerns. The court found that a rule allowing only lounge chairs in the pool area have accomplished the same goal. 

•  A rule prohibiting inner tubes, balls and floats was not discriminatory because it covered equipment not used exclusively by children.
 
The essentials to making sure your rules comply with the Act are as follows:
 
            (1) does the rule serve a compelling business purpose, such as safety or sanitation;
            (2) is it the least restrictive way to achieve that purpose; and
            (3) does it explicitly single out any persons or families based solely on age?
 
As you can see, it is easy to violate the Act, even though the association believes it is acting prudently and in the best interests of all its members. It is important and helpful to have legal counsel review pool rules for compliance with the Act and with other federal and state fair housing laws. Once an association realizes that one or more of its pool rules is in violation of the Act, the association should take prompt action to remedy the problem. Even if that remedy consists of only an interim rule to bring the rule into compliance until a permanent change can be adopted. In addition, it is prudent for associations to have its directors and officers insurance reviewed by legal counsel to verify that there is proper coverage in the event the association or board members are sued for violating fair housing laws.