News Regarding Prohibiting Infants and Toddlers in Swimming Pools

From one of our swim fathers who lives in a planned community.

Re: Pool Rules Prohibiting Persons in Diapers

Dear Board Members:

You advise that certain homeowners have petitioned the Board to enact a rule prohibiting people (children and adults) in diapers from using the pool and ask whether the Board may promulgate such a rule.   The Fair Housing Act, 42 U.S.C. at 3604, in pertinent part, makes it unlawful for anyone:

(b) To discriminate against any person in the terms conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of...familial status... (emphasis provided)

 The Fair Housing Act defines familial status, in pertinent part, as “...one or more individuals (who have not attained the age of 18 years) being domiciled with a parent or another person having legal custody of such individual or individuals...” and makes it unlawful “to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed.... any right granted or protected by....” the Fair Housing Act.  While the suggested rule, prohibiting anyone in diapers from using the pool may, at first, appear to apply to everyone, our concern is that it may still be interpreted by an Administrative Law Judge as targeting toddlers and small children, the predominant users of diapers, which could result in a substantial financial penalty being imposed on the Association.

 In the two cases which follow, the Department of Housing and Urban Development (“HUD”) specifically addressed the issue of pool rules designed to prohibit children in diapers from using the association’s swimming pools.  While we understand that prohibiting children is ostensibly not the intent of the proposed rule these cases will shed light on how HUD reviews these types of rules and the justifications offered by other community associations. 

 In HUD v. Paradise Gardens, Section II, Homeowners Association, (1992 WL 406531), an association had pool rules which were specifically directed towards young children.  One rule provided that no child under the age of 5 was permitted to use the pool. This rule was said to be for the child’s safety and because of the “possible presence of fecal material in the pool.” Another rule stated that children between the ages of 5 and 16 years old are allowed in the pool from 11 a.m. to 2 p.m.  

 HUD called an environmental specialist for the Florida Department of Health and Rehabilitative Services, Broward County Public Health Unit, as an expert on pool operation and inspection and water safety. She had nine years experience inspecting pools to insure they are safe and sanitary.  She testified that there is no health reason to exclude children of any age from a pool, and that a pool can be maintained in a healthful and clean condition, regardless of the ages of those who use the pool.  She further testified that she is aware of incidents of human waste in pools of all adult health clubs and that there is no correlation between the age of swimmers and the sanitariness of a pool.  She testified further that children should not, as a group, be excluded from a pool. Rather, under proper supervision, children should learn to swim because it is a life safety skill and she was aware of no health or safety reason for excluding children under 5 from a public pool. 

 The rules were found to discriminate against families with children and interfere with the enjoyment and use of the facilities.  As the association was not able to establish that it was exempt from the fair housing laws regarding familial status (i.e., as a housing for older persons community), they were found to be in violation of such laws.  The only type of rule which was found acceptable was one in which children under a certain age legitimate purpose of maintaining safety.   The Association in the aforementioned case received a $7,000 fine for violating the Fair Housing Act which was awarded to two families for emotional distress, humiliation and inconvenience.  The penalty could have been as high as $10,000.  

 In Leonard v. Seaboard Arbor Management Services, Inc. (HUDALJ 04-91-0931), HUD offered specific language for a pool rule to an Association which may prove useful in the present matter.  Along with requiring the Association to pay the homeowner a $1,500 penalty, the Administrative Law Judge required the Association to change its rule prohibiting all  babies and a small children not fully potty trained from entering or being carried into the pool, as follows:

 Any person who is incontinent or not fully potty trained must wear appropriate waterproof clothing when entering or being carried into the pool.