With warmer weather comes the opening of pools along with client questions regarding appropriate pool rules and pool signs. When it comes to Pool issues there are few absolutes and pool rule issues for multi-family housing providers can be confusing, particularly when it comes to Fair Housing. Most, if not all, of the pool rules we see that violate the Fair Housing Act were not written to intentionally discriminate against a protected class although that became the unintended outcome. In fact, pool rules are usually written with the intention of creating a safe environment or preventing physical injury to residents. However, Fair Housing enforcement goes beyond the intent of the rule and examines the possible impact of the rule. According to HUD, as long as the effect is discriminatory, the rule will be regarded as discriminatory.
Many clients are surprised when we advise them that swimming pool rules can cause serious problems under the Federal Fair Housing Act. It only seems reasonable for a property manager to impose rules that regulate or limit access to a swimming pool, but some courts have held that rules that restrict or limit an access to a pool on the basis of age violate the Fair Housing Act’s prohibition against discrimination on the basis of familial status. In this age where lawsuits seem to be filed over everything, common sense is often the casualty. It is ironic that today, rules promulgated by a multi-family housing community for the purpose of risk management can inadvertently result in litigation– not over injury or drowning but over the rule itself on the grounds that it is discriminatory.
It is okay to set behavior rules for your pool, particularly for safety reasons, but make sure the rules don’t target a specific group, such as children. For example, instead of saying “Children may not run or engage in roughhousing at the pool,” say, “No one may run or engage in roughhousing at the pool.” It’s okay to ban disruptive, dangerous behavior as long as you ban everyone from doing it. ‘Adults only’ pools or swim time are almost certainly violations, in that such rules are based on age and not swimming ability and are viewed as discriminatory. According to court rulings, rules that restrict or single out children can be facially discriminatory. Examples of some pool rules that courts have deemed unlawfully discriminatory include:
- Children under the age of 18 are not allowed in the pool area any time unless accompanied by their parents or legal guardians (children 15 years of age can be certified Red Cross lifeguards and demonstrates why this can be a discrimination issue not a safety issue)
- Adult only use of the pool after 6:30 p.m.
- Adult only swimming between 5:30-7:30 pm
- No Children in the pool area until 10:00 a.m.
- Children must be potty-trained to use the pool (you can devise rule a requiring non-potty-trained children to use waterproof pants or diapers and not discriminate)
All of these rules could be rewritten to be more neutral and deemed non-discriminatory while still addressing issues of safety, health and access.
Frequent Fair Housing Issues for apartment communities not specifically related to children or familial status discrimination concern the banning of wheelchairs and or service animals in the pool area. Obviously, items with wheels can be dangerous around pools. If you decide to ban such items, exclude wheelchairs from the ban. People who use wheelchairs need them to gain access to your pool, and if you ban wheelchairs from the pool area, you could be accused of discrimination based on disability. Instead, set a rule that says: “No bicycles, tricycles, scooters, skates, strollers, or carriages are allowed in the pool area.” It is okay to ban bicycles, scooters, and skates because they are not necessary for access to the pool, and because they create genuine safety risks. And it is okay to ban strollers and carriages because tenants with babies have other options, such as infant carriers, that they can use to bring their babies to the pool.
Pets can also be dangerous around pools. Pets may bother other tenants and cause safety and health concerns. But if you decide to ban pets, you cannot include guide, service, and companion animals in your ban, or you could be accused of discrimination based on disability. So, make sure your rule says that animals necessary to assist residents with disabilities are allowed in the pool area.
Put your Rules and Reasons for them in writing. Once you’ve created reasonable pool rules, post them in your community’s pool area, and include them in your community’s rules and regulations that all tenants receive. The latter is also a good place to explain the logic behind your rules. Tenants may be less likely to challenge your rules if they understand the reasoning behind them.
Instruct your staff to enforce the Pool Rules consistently. It’s very important that your staff enforces your pool rules consistently, and that they do not to make any exceptions. Exceptions can lead to trouble. When it comes to Swimming Pools and Fair Housing, consistency in enforcement of Pool Rules is a good defense. When in doubt about your Swimming Pool Rules and Fair Housing Compliance, have your rules reviewed by a THS attorney. Remember this is definitely a situation where playing it safe is a lot less expensive than having to be sorry. The maximum exposure to a property for a violation of the FHA can be anywhere from $10,000 to $50,000 in fines. A determination of a violation of the FHA can pave the way for the complainant to file a civil suit, seeking damages beyond fines. THS is always available to review your pool rules to ensure they are drafted in a way that addresses any of your concerns but also to make sure that your Swimming Pool Rules are FHA compliant.