REMBAUM'S ASSOCIATION ROUNDUP | The Community Association Legal News You Can Use

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Tag: amenities

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Age-Based Restrictions – Regulating the Use of Recreational Facilities by Children

The Fair Housing Act, Title VIII of the Civil Rights Act of 1968 (which has been amended and expanded over the years), prohibits discrimination in housing on the basis of race, color, national origin, religion, sex, familial status, and disability. There are also various state and local regulations that address housing discrimination. While most community associations are aware of and avoid discriminatory housing practices for most protected classes, some community associations struggle with balancing how to steer clear of discrimination on the basis of “familial status” while still addressing common concerns and issues that children can create in a community. The first part of this article addresses communities that are NOT Housing for Older Persons (meaning not 55 and older) communities while 55 years of age and older communities are addressed toward the end.

Discrimination on the basis of “familial status” includes discrimination against children under the age of 18 living with parents or legal custodians, pregnant women, and people securing custody of children under the age of 18. In addition to prohibiting familial status discrimination as to occupancy of a dwelling, the Fair Housing Act’s familial status discrimination prohibition extends to the use of the association’s recreational facilities, including for example, the community clubhouse, swimming pool, hot tub, and fitness center.

NOT 55 AND OVER COMMUNITIES

In United States of America v. Plaza Mobile Estates, et al., 273 F. Supp. 2d 1084 (U.S.D.C. 2003), the court held that several association rules which prohibited or restricted the use of recreational facilities, including the clubhouse, billiard room, tennis courts, laundry room, swimming pool, sauna, jacuzzi, and sun deck, by children were discriminatory and violated the Fair Housing Act because they treated children, and thus families with children, differently and less favorably than adult-only households. These rules included prohibiting residents under the age of 14 from using the recreation facilities without the accompaniment of an adult resident, prohibiting entry into the billiard room by anyone under the age of 18, requiring that anyone under 14 years of age riding a bicycle be accompanied by a responsible adult, and requiring guests under 18 years of age be accompanied by a responsible adult. A similar conclusion was reached by the court in Iniestra v. Cliff Warren Investments, Inc., 886 F.Supp.2d 1161 (C.D.Cal.2012), in which it found that the following four association policies were facially discriminatory: (i) prohibiting children under the age of 18 from being in the pool or pool area at any time unless accompanied by their parents or legal guardian; (ii) requiring children on the premises to be supervised by a responsible adult at all times; (iii) requiring children under seven to be supervised; and (iv) requiring adult supervision for children under 10 years old.

Therefore, it is clear that community associations should avoid adopting rules and regulations which unreasonably prohibit or restrict the use of their recreational facilities or other common areas on the basis of age. The above cases provide insight as to what may be considered unreasonable. However, these cases do not completely eviscerate the authority of a community association to adopt reasonable rules and regulations governing the use of its recreational facilities and other common areas. This merely requires the community association to alter its perspective on the rules and regulations being adopted. Instead of focusing only on the age of the individual, focus on the underlying activity that the community association would like to regulate or prohibit. For example, if the concern is the safety of children at the community swimming pool, the community association could consider adopting a rule requiring that anyone who is not a competent swimmer be supervised by a competent swimmer at all times while in the pool and pool area.

If the association is going to prohibit use of amenities and such based on age alone, consider including a mechanism for relief from the rule within the rule itself. For example, what if the association has a rule, “No children under the age of 12 may be in the pool without adult supervision”? What if an 11-year-old is already a proficient swimmer and is on a swim team? Therefore, consider adding to the rule that “if an exception to the rule is necessary, please make application to the board to do so.” In other words, do not make the rule inflexible, but rather provide exceptions to the rule under the right circumstances.

Although the Fair Housing Act prohibits discrimination in housing on the basis of familial status, there is an exception to this prohibition under the federal Housing for Older Persons Act adopted in 1995 (“HOPA”). Under the HOPA, housing providers, including community associations, are exempt from liability for familial status discrimination so long as certain requirements are met and maintained. Although there are three types of housing for older persons’ exemptions, the most common exemption is housing intended and operated for occupancy by persons 55 years of age or older, which enables the association to prohibit persons under the age of 18 from being permanent residents.

55 AND OVER COMMUNITIES

To qualify as “housing for older persons” (often called “55+ housing”), a community association must meet the following criteria: (i) ensure that at least 80 percent  of the homes have at least one permanent resident who is 55 years of age or older; (ii) publish and adhere to policies and procedures that demonstrate an intent to provide housing for older persons (55+); and (iii) conduct a census/survey every two years to obtain reliable age documentation of the residents to verify the occupancy of the homes.

If a community association is properly maintained as “housing for older persons,” then the community association may adopt age-based restrictions concerning the use of its recreational facilities and other common areas because it is exempt from enforcement of familial status housing discrimination. For example, a community association that qualifies as housing for older persons may limit children’s use of the community swimming pool to certain days or times and may require an adult to accompany children while in the clubhouse or prohibit children from using the community fitness center. As a result of the HOPA exemption, a community association that qualifies as housing for older persons may adopt age-based restrictions which community associations for all ages are prohibited from promulgating. Of course, no community association is exempt from the laws that prohibit discrimination based on any other protected class, such as race, religion, national origin, disability, etc.

While community associations that qualify as housing for older persons are exempt from the Federal Fair Housing Act’s provisions regarding familial status, these community associations must also be mindful of local laws and ordinances that may also prohibit discrimination based on age before adopting age-based restrictions. For example, the fair housing laws of Palm Beach County provide that “[h]ousing for older persons may also maintain only those age restrictions necessary in order to be designated as housing for older persons.” Therefore, a community association should contact its attorney before establishing rules, regulations, or restrictions based on age.

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RE-OPENING AMENITIES IN TIMES OF UNCERTAINTY

The re-opening of amenities is anything but easy due to the local Orders being promulgated by Palm Beach, Broward and Miami-Dade Counties. Please be sure to review your County’s specific order(s) to ensure your association remains in compliance. These Orders have similarities but are also VERY different. A link to the recent re-opening Orders follows:

As to the Palm Beach County Order, take note that that staff and management are responsible to ensure compliance with the Order with respect to the tennis/racquet court facilities, and that one or more facility staff or management must be present at the pool to monitor and “ensure compliance with the restrictions of the Order.” However, it is not at all clear what measures must be taken to “ensure compliance with this Order.” We do not think it would be sufficient to only post a sign setting forth the CDC Guidelines and the additional restrictions in the Order. Although the tennis/racquet court facilities guidelines, unlike the community pool guidelines, do not require personnel to be present at the tennis/racquet courts to monitor and ensure compliance, in our opinion the board should consider some type of responsible monitoring.

With respect to a swimming pool in Palm Beach County, “facility staff or management” must be present at the pool whenever it is open to monitor and ensure compliance with the restrictions set out in the Order, including social distancing and pool bathroom sanitation. If that cannot be accomplished, then the pool and or bathrooms should remain closed.

When opening a swimming pool in Broward County, their Order provides that the pool may not operate at more than 50% capacity. In person supervision in addition to sanitizing gates, railings and showers is required if the pool deck furnishings are left in place. However, by removing the furnishings, the wording of the Order seems to indicate the need to sanitize gates, railings and showers has been eliminated.  If the decision by the Board is to reopen the pool, whether the furnishings remain or are removed a level of reasonable cleaning/sanitizing should be maintained, as necessary maintenance remains a continuing obligation of the association with regard to common elements/areas, which would require sanitizing the pool gates, handrails, doors, bathrooms and the like minimally as the association normally would,  but clearly should be performed more frequently during these times.

Residents of Miami-Dade County will have to wait a while longer to be able to use their association swimming pool because their Order does not yet address opening association swimming pools.

We have heard that certain county staff are giving their personal interpretations of the Order(s) in response to questions from board members. If you think that relying on these unofficial and unauthorized interpretations will shield your association from immunity, think again! It is far more likely that staff interpretations of the County Orders will not provide any protection whatsoever, most especially if a resident contracts Covid-19 and a lawsuit is brought against the association. Until local governments revise their Orders to provide missing clarity, the plain language, conservative interpretation of these Orders should be followed to help ensure your association is protected as much as possible under the circumstances. Remember, too, that an association can have stricter requirements than those set out in the orders, but cannot adopt less strict requirements.

It is also unclear from the Orders how governmental enforcement of the restrictions is to occur by the County or any municipality, as it seems very (very) unlikely that there will be patrols driving around to check on compliance. Even if such patrols did exist, they could not hope to keep up. The more likely scenario is that the self-reporting of violations could possibly lead to monetary or other penalties against the association. Clearly, if the Board is of the opinion that the requirements in their County’s Order cannot be met at this time, it or are removed is certainly within the reasonable business judgment of the Board to keep those amenities closed. However, that said, reasonable business judgment should not be used by a board to make a decision to open amenities where the board believes it lacks the ability to be fully compliant with their county’s local Orders.

We encourage board members to contact their association’s legal counsel for guidance regarding reopening any tennis/racquet courts and/or pool facility, and to continue to monitor the guidelines, directives and orders issued by the CDC and the applicable local authorities. Stay safe.