By Matt D. Ober

Q: Is it legal to require adult supervision at the condo swimming pool? Our pool management company is demanding lifeguards require adult supervision of children. Their proposed contract states, “XYZ company reserves the right to restrict children under 12 years old unless accompanied by an adult over 18 years old.” This is inconsistent with our community rules. Is there exposure to our condo board?

A: You are right to be concerned about any service provider refusing to follow the community association’s rules or policies. That calls into question the legitimacy or enforceability of the rule, as well as the association’s ability to oversee its service providers. Although the pool company is an independent contractor, the community association would be responsible for the actions it takes. If those actions are contrary to the association’s governing documents or law, the association is exposed to liability.

Community associations typically have swimming pool rules and regulations to control nuisances, crowds, health and safety. The rules are generally written to ensure safety and prevent injury rather than with the intent to discriminate. Nevertheless, fair housing laws protect against rules that have a discretionary effect, regardless of their intent. A pool rule or policy that has the effect of discriminating when applied to a protected class will be carefully scrutinized under the Fair Housing Act. The concern here is that the pool management company intends to enforce a policy that not only differs from the association rule but may violate fair housing laws.

Communities should be wary of any rule that limits conduct to a particular age group. Rules should not target someone based on age, gender or familial status. Any rule or policy targeting children is likely to trigger a discrimination accusation or a fair housing inquiry.

The FHA and state fair housing laws prohibit discrimination based on race, color, religion, sex or national origin and familial status. While the familial status protections of the FHA preclude any rules that discriminate against families with children, the act does not preclude housing providers from implementing reasonable health and safety rules. Courts that have addressed such rules generally require they be based upon a “compelling business necessity” and that the rule adopted represent the “least restrictive means” to achieve the community’s stated purpose.

Rules requiring adult supervision of children have been found discriminatory and in violation of the FHA. The U.S. District Court in Central California determined in 2012 that “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.”

A 2003 case also in the U.S. District Court in Central California found that a community rule mandating adult supervision of children using a swimming pool violated FHA as families with children were treated differently than adults. Among the concerns noted was that an adult who could not swim would be allowed to use the swimming pool whereas a trained swimmer under the age of 18 would be prohibited.

This is not to suggest that pool rules requiring adult supervision under a certain age would not survive an FHA challenge. Such a rule, however, should be based on an objective standard. Some pool age restrictions are tied to the minimum age for Red Cross lifeguard training eligibility, which is 15 years. In addition, the rule should be intended to further a legitimate community interest, such as health and safety, as opposed to noise or crowd control. Finally, the rule must represent the least restrictive means of achieving that safety goal. Mandating parental supervision of children at a swimming pool is not the least restrictive means of ensuring safety. The rule must allow for any responsible adult to supervise children.

Before proceeding with the rule, the condo association board should obtain a legal opinion. Given the FHA’s protection of familial status, coupled with courts requiring a “compelling business necessity” or, in this case, a legitimate health and safety or community interest, the statement that children under the age of 12 are incapable of looking out for their own health and safety may be legally unsupportable and therefore not serve as a legitimate basis for the age restriction on swimming pool use.

This article first appeared in the Washington Post on June 26, 2019. Access the article here.