Except for senior community pools, associations cannot prohibit children from using swimming pools, establish adults-only pools, or establish adults-only times. In Llanos v. Coehlo, a federal court found that the association's rules designating "family pools" and "adult areas" in the complex and prohibiting children from playing in and around adult areas of the complex were discriminatory and violated the Fair Housing Act. (Also see U.S. v. Plaza Mobile Estates.)
A similar decision was reached by a federal court in the unpublished case of Landesman v. Keys Condominiums. The association's reason for restricting children from the main pool was that adults enjoyed using the pool for lap swimming and they preferred the relative tranquility of a swimming pool not filled with active, noisy children. Although sympathetic, the court ruled against the association.
The court is not unsympathetic to the concerns of the adult residents who want to be able to enjoy the pool in peace, but finds that plaintiffs have nonetheless established a prima facie case of discrimination and that The Keys Association has not articulated a legitimate justification for excluding children from the main pool. . . . If this were a case of a homeowners association allowing everyone to use the main pool at all available hours in the summer, with the exception of women, or persons born in Iraq or China, or members of the Episcopal Church, such restrictions would be equally unlawful as the restrictions on access by children. . . . Any problems The Keys Association believes are caused by noise or activity of certain children should be taken up with the parents or guardians of those children.
Other rules considered discriminatory:
1. Age Restrictions. Forbidding children under 18 from using the swimming pool without an adult. The restriction is too broad and would create a situation where a 17-year old certified life guard could not swim alone. A more defensible age restriction is 14 since the California Building Code §3120B.4 states:
Where no lifeguard service is provided, a sign shall be posted stating, "NO LIFEGUARD ON DUTY." The sign also shall state in letters at least 1 inch (25 mm) high, "Children under the age of 14 shall not use pool without a parent or adult guardian in attendance."
2. Parental Supervision. Requiring "parental" supervision. Supervision cannot be restricted to a parent; any responsible adult can supervise children. The following pool restriction found in many association rules would be struct down as discriminatory:
Children under the age of 18 are not allowed in the pool or pool area at any timeunless accompanied bytheir parents or legal guardian.
3. Toilet Trained. Prohibiting all non-toilet trained children from using the swimming pool. (A rule that prohibits all incontinent persons from using the pool would accomplish the same result without being discriminatory.)
4. Baby Strollers. Prohibiting baby strollers, walkers and playpens from the pool area discriminates against families on its face. (A rule that allows only lounge chairs in the pool area might be acceptable.)
5. Gender Discrimination. Associations cannot segregate pool swim times based on gender since it amounts to sex discrimination in violation of the Federal Fair Housing Act. (Curto v. Country Place.)
6. Other. See DFEH letter regarding discrimination against children.
Some additional cases that address discrimination against children include the following:
DFEH v. Hacienda de Camarillo Apartments, (1988). FEHC ordered the apartment complex (with three sections--families, adults and seniors) to cease and desist its age discrimination restrictions (children could not visit the "senior" pool) and to post notices against age discrimination.
DFEH v. Hans Sheik (1993). FEHC ordered landlord to cease and desist discrimination in not renting a house to a family with three minor children.
HUD v. Paradise Gardens HOA (1992 WL 406531). The association prohibited child under the age of 5 from using the pool and restricted children ages 5 to 16 to using the pool from 11 a.m. to 2 p.m. The purpose of the rules was to promote sanitary and healthy swimming facilities. The rules discriminate against families with children and violate the Fair Housing Act since there are no discernible differences in the amount of fecal material in adult-only swim facilities and all-age swim facilities. The association was fined $7,000.
Iniestra v. Warren (2012). Safety is not a valid reason for requiring supervision of minors using pools since children may be better swimmers than adults. Decorum is also not a valid reason. Requiring adult supervision is unlikely to make children less noisy. The desire for peace and quiet may be a worthy goal for a community association, but it “is not a justification for denying access to common facilities on the basis of familial status.”
Leonard v. Seaboard Arbor Management Services, Inc. (HUD ALJ 04-91-0931). The judge required the association to change its rule prohibiting all babies and children not fully potty trained from entering or being carried into the pool, to the following: "Any person who is incontinent or not fully potty trained must wear appropriate waterproof clothing when entering or being carried into the pool."
Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721. The California Supreme Court held that a landlord's exclusion of all families with minor children as tenants from an apartment complex was impermissible under the Unruh Act.
O'Connor v. Village Green (1983) 33 Cal.3d 790. The California Supreme Court held that a provision in CC&Rs limiting residency to persons over the age of 18 was invalid.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.