Spas, Hot Tubs, and Jacuzzis
Associations may adopt rules prohibiting young children from using the association's hot tub/spa. Even though the restriction is discriminatory, there is a valid health reason for it. Per California regulations, a spa's water temperature may not exceed 104 degrees. Spa temperatures are known to have adverse health effects on infants and toddlers.
Danger of Overheating. Infants and young children are more susceptible to overheating than adults and should not be exposed to a spa's high temperatures. Spa manufacturers frequently specify age limits and temperature ranges in their literature. If boards adopt restrictions in line with the manufacturer's guidelines, they can defend against discrimination complaints.
Children Under Five. Generally, children under 5 should not be allowed to use a whirlpool/hot tub/spa, even with adult supervision. Children between the ages of 6 and 12 should always have an adult when using the facilities. Older children using hot tubs should not soak for more than 5 to 10 minutes at a time. Prolonged exposure to hot temperatures can lead to dehydration, dizziness, and nausea.
Recommendation: Associations should regularly inspect and maintain their spas through a licensed, insured vendor. They should also verify temperature requirements, as statutes change over time. Finally, they have their spas inspected to ensure proper safety equipment is in place.
Discrimination Against Children
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 the adult areas 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A similar decision was reached by a federal court in the unpublished case of Landesman v. Keys Condominiums.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 it for lap swimming and preferred the relative tranquility of a pool without 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.
Rules considered discriminatory:
- 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 lifeguard could not swim alone. California Building Code states: Where no lifeguard service is provided, a sign shall be posted stating, "NO LIFEGUARD ON DUTY." The sign must state in letters at least 1 inch (25 mm) high, “Children should not use pool without adult supervision.” (CBC § 3120B.4 was amended 1-1-23 to eliminate "Children under the age of 14" and changed the wording from "shall" to "should") (See Swimming Pool Signage)
- 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 struck down as discriminatory: Children under the age of 18 are not allowed in the pool or pool area at any time unless accompanied by their parents or legal guardian.
- 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.)
- 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.)
- 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.)
- Other. See DFEH letter regarding discrimination against children.
Case Law. 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 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 the landlord to cease discrimination in not renting a house to a family with three minor children.
- HUD v. Paradise Gardens HOA (1992 WL 406531). The association prohibited children under the age of 5 from using the pool and restricted children ages 5 to 16 from 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 who are 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.
Swim Diapers
The Centers for Disease Control ("CDC") has adopted a "Vessel Sanitation Program" that strictly prohibits children in diapers or who are not toilet-trained from using public swimming pools and whirlpool spas on cruise ships. This is to prevent pool contamination and the spread of gastrointestinal illnesses. The CDC has determined that swim diapers are not effective in preventing contamination. Although swim diapers prevent solid feces from escaping (assuming they are properly fitted and changed often), they cannot prevent leakage of urine or diarrhea, which contain infection-causing germs. Some refer to swim diapers as "fecal tea bags." See the news release by the National Swimming Pool Foundation. For more information about diarrhea and swimming, see the information posted on the Centers for Disease Control website.
Recommendation. Based on the CDC's rulings, it is our opinion that associations may adopt similar restrictions for their pools and spas. However, boards should be aware that various anti-discrimination laws prohibit discrimination based on age. Accordingly, boards should consult legal counsel to ensure their rules are properly drafted to apply neutrally to all persons who cannot control their bladder or bowels, not just children.
Senior Community Swimming Pools
See "Senior Communities."
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