With warmer weather, we’re getting our usual barrage of pool questions. Many deal with appropriate pool rules and pool signs. Without question, pool issues are one of the more confusing areas of our practice in that there are few absolutes. That’s particularly the case when it comes to dealing with Fair Housing Act issues.
The Fair Housing Act (“FHA”) 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 short version as to familial status is this: associations should not treat families with children differently than other residents in the community. Unfortunately, there is no FHA model pool rules list, so associations sometimes find out that wording is bad when a claim is brought against the association.
Based on FHA language and various cases around the country, association attorneys have come up with some standard pool suggestions. The focus is basically that pool rules must be related to health and safety and not simply discriminate against families with children. So:
“Adults only” pools or swim time are almost certainly violations, in that such rules are based on age and not swimming ability. If the concern is safety, lap swimming or lap lanes may address such concern without being discriminatory.
“Children must” be potty trained to use the pool or use water diapers are almost certainly violations, in that the rule discriminates against an age class without taking into account that adults can also be incontinent.
“Children not permitted in the pool unless accompanied by parents” is almost certainly a violation on two fronts—the rule discriminates against children with no regard to swimming ability (children as young as 15 can be certified as Red Cross lifeguards) and it requires parents present for children to swim without regard to other family members or a legal guardian. In fact, a case from California (Iniestra v. Cliff Warren Investments) found a rule 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” was discriminatory on its face.
All of these rules could be rewritten to be more neutral while still addressing issues of safety, rather than just targeting children or families with children.
As an example of how this can get confusing, let’s take a look at a specific instance. North Carolina has statutes and state regulations regulating “public swimming pools,” which the NC Department of Health and Human Services says apply to all homeowner and condominium association pools. 15A N.C. Administrative Code 18A .2530 provides that for pools with no lifeguard:[T]here shall be signs legible from all bather entrances with a minimum letter size of one inch stating: “CHILDREN SHOULD NOT USE THE SWIMMING POOL WITHOUT ADULT SUPERVISION” and “ADULTS SHOULD NOT SWIM ALONE.”
Under the FHA, should a community association pool sign begin with “CHILDREN SHOULD NOT . . .”? NO. Does North Carolina seem to require that community association pool signs say “CHILDREN SHOULD NOT. . .”? YES.
As state regulators work through the FHA and state pool rules, it is likely the mandated pool sign wording will change. Until then, please understand why wading through pool rules for community associations is not as easy as it seems.