When Laws Collide: Child Safety Or Discrimination?

Common interest development associations (aka “HOAs”) are governed by both state and federal Fair Housing laws. Fair Housing laws prohibit “familial status” discrimination, which means singling out children for any disparate treatment. [This prohibition exempts senior communities, which are exempted under Civil Code 51.2.] A complete ban on children would be a classic example of familial status discrimination. Another form of such discrimination would be imposing special restrictions upon children and not to adults.

Most associations and their managers hopefully know that rules specifically targeting children are prohibited under Fair Housing laws. However, in at least one context, state law appears to do just that – single out children for special treatment. Associations which are not aware of a contradiction in current law could find themselves guilty of familial status discrimination regarding its swimming pools and spas. California law has for years required that apartments or HOA swimming pools have a posted sign stating: “Children under the age of 14 shall not use pool without a parent or adult guardian in attendance.” This requirement is currently found in the California Code of Regulations, Title 24 Chapter 31, Section 3120B.4. Another state regulation, Section 3120B.7, requires signs at spa pools reading, “Unsupervised use by children under the age of 14 is prohibited.”

However, associations are not allowed to enforce these two statements. If an association adopts a rule simply quoting the requirement of the two state law-mandated signs, banning unaccompanied kids from pools and spas, the association could be sued for violating Fair Housing laws. Several cases have been decided in federal courts in California over the years, finding that a restriction on unaccompanied children in pools violated Fair Housing laws.

This creates a very difficult dilemma for common interest development associations. On the one hand, a board is apparently being encouraged to warn of a potentially dangerous situation in association pools and spas, but on the other hand if the association does anything more than simply post the sign, it violates Fair Housing laws. Conscientious boards often ask, what happens if a child drowns in our pool without an adult present, will we be liable? It is difficult to balance the obvious safety issue against the equally valid concern about discrimination.

Court opinions have noted that not all children under the age of 14 are unsafe in swimming pools, and banning blanket bans on unaccompanied children. However, at what age can most children generally validly be considered unsafe in a pool or spa? The state of California places this age at 13, based on the content of the aforementioned regulations.

Many associations have other potentially hazardous amenities, such as gyms or weight rooms, saunas, and equestrian facilities, which can be very dangerous to a young and inexperienced or immature user. Is it reasonable that associations cannot try to protect children in such areas because of Fair Housing laws?

When laws collide, the losers may well be exactly the persons the law is trying to protect – the children. For specific steps to try to balance these conflicting policies, consult your association attorney, preferably someone very conversant in Fair Housing laws.

As to swimming pools, unless and until the law changes, HOAs must post the required signs but cannot enforce what that signs say.

Written by Kelly G. Richardson

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to [email protected]. Past columns at www.hoahomefront.com. All rights reserved®.