By Christina S. Saad, Esq.
Published February 21, 2023
Like many Californians, you may be so used to seeing “No Lifeguard on Duty” and “Caution” signs posted around public pools and spas that you just glance at the verbiage and do not give it a second thought. Like public pools and spas, common interest developments (CIDs) with pools and/or spas are required to post “No Lifeguard” and “Caution” signs pursuant to Sections 3120B.4 and 3120B.7 of the California Code of Regulations. The same is required for all other public pools and spas.
What CIDs may not be aware of is the sign verbiage required by Cal. Code Regs. Section 3120B.4 and 3120B.7 just a couple of years ago likely violated fair housing laws. CIDs were therefore stuck between their obligations to post the required pool/spa sign verbiage and avoid enforcing discriminatory rules; however, a 2019 update to Cal. Code Regs. Section 3120B.4 and 3120B (effective January 1, 2020) removed the discriminatory components.
Now, CIDs must not only change the sign verbiage accordingly, but they should also review their Pool and Spa Rules to ensure the language is not discriminatory.
Change in Required Sign Verbiage
Prior to the 2019 update, Cal. Code Regs. § 3120B.4 required “No Lifeguard” signs to state “NO LIFEGUARD ON DUTY” in addition to ”Children under the age of 14 shall not use pool without a parent or adult guardian in attendance”. However, a US Discrict Court in California found that such restrictions discriminated against families wih children (protected by federal and state fair housing laws), in that it treated families with children differently and less favorably than adult-only households. (See United States v. Plaza Mobile Estates (2003).) After the 2019 update, the required verbiage changed to “NO LIFEGUARD ON DUTY” followed by “Children should not use pool without adult supervision”. Similarly, the “Caution” sign verbiage for spas changed from “Unsupervised use by children under the age of 14 is prohibited” to “Children should not use spa without adult supervision.” (See Cal. Code Regs. § 3120B.7 for additional required verbiage.) The amendments to both provisions removed reference to a specific age and altered the prohibitory language to mere suggestions.
What Should Your Community Do?
- CIDs with pools and/or spas should update their “No Lifeguard on Duty” and “Caution” signs to reflect the current, non-discriminatory language in Code Regs. §§ 3120B.4 and 3120B.7.
- In addition, they should review their Pool and Spa Rules to ensure they do not treat families with children more harshly than adult-only households.
PRACTICE TIP: Avoid any reference to specific ages or familial dynamics in your CID’s Pool and Spa Rules.
Although restrictive Pool and Spa Rules may be well intentioned, any such discriminatory language would only be acceptable if the CID could successfully articulate a compelling business necessity and the language is “the least restrictive means to achieve that end”. (Fair Housing Council v. Ayres, 855 F. Supp. 315, 318-19 (C.D.Cal.1994).
Do you have questions regarding your Pool or Spa Rules? Our firm is happy to review or draft a new set of rules for your community. Please contact us.