By Mary M. Howell, Esq.
What kinds of pool rules may an association have?
How may “health and safety” issues be
legally addressed?
In US v. Plaza Mobile Estates (2003 U.S. Dist. Ct. Cal.) 273 F. Supp.2d 1084, the government sued operators of several mobilehome communities, alleging their recreational use rules violated the federal Fair Housing Amendments Act of 1988. The rules fell into 3 categories: they either absolutely denied access to facilities to children, imposed an “adult supervision” requirement, or limited the hours children could use the facilities. The park owners argued that the rules were intended to guard the health and safety of the children. The court was not persuaded: “As with [] absolute prohibitions [based on age], these adult supervision requirements are [] not the least restrictive means to achieve [] health and safety objectives… [T]here is nothing magical about the age of 18 or 14 years old if defendants’ concerns are for the protection of the health and safety of the children or other residents in using recreational facilities or the swimming pool or riding bicycles. Such concerns could be addressed with the use of rules. Moreover, rather than being connected to such ages, bicycle and pool safety would be better served with a proficiency requirement…”
To most of us, it is simply not feasible to administer swimming proficiency tests to all children wishing to use the pool, and even if an association were to do so, it would invite suits against the association should a “certified proficient swimmer” come to harm.
So how to approach the valid concern of “health and safety”? What IS the “least restrictive” way to approach the problem? You might also require the parent of the child to confirm in writing that the child is proficient in terms of swimming (which seems to accord with the judge’s suggestion, above.) And if the real concern is less “safety” than noise and boisterous behavior, have a rule which focuses on behavior, not on age. (Even octogenarians can be disruptive: shocker!)
Is the Association required to alter common areas in response to a disability-based claim?
Another pool issue revolves around disability-based requests. How should the Association handle requests to install pool lifts, or (for example) to allow pool flotation when rules prohibit it? With regard to the pool lift, remember an association is not subject to the Americans with Disabilities Act (“ADA”) unless its facilities are open to the public at large. Instead, the association is governed by the Fair Housing Amendments Act (“FHAA”) which has similar but not identical requirements. The FHAA provides the cost of a disability-based modification is to be borne by the applicant, not the association. With regard to the pool flotation device example, the Act requires the association to suspend enforcement of rules where necessary to afford a disabled resident an equal opportunity to use and enjoy the premises. Many similar questions are answered by HUD, in two documents available online: the 2004 “Joint Statement on Reasonable Accommodations” and the 2008 “Joint Statement on Reasonable Modifications.”
What happens if the association (or its manager) are accused of unlawful discrimination? Can the association be liable for discrimination by its manager?
Since many D&O policies exclude defense of claims based on discrimination, the association may have to pay the cost of defending the claim, and is likely to be required to defend the accused manager also. Because an association can be liable for discriminatory acts by a manager, promptly investigate complaints about questionable behavior. Check your D&O policy carefully, and try to select a policy which does not exclude such claims. And, if the manager is accused, the association may have to consider a further agreement with the management company, allowing for defense of the claim, but reserving the right to seek reimbursement from the manager and management company if the manager is ultimately found to have intentionally discriminated.
Reprinted with permission from California Association of Community Managers, Inc. (CACM) Law Journal (Copyright, 2015, CACM). For additional information on CACM visit http://www.cacm.org.