Hi Kelly,

I recently read your earlier article on Fair Housing laws being violated by HOAs trying to enforce state-mandated signs that prohibit children from using HOA pool and spa. We have a large sign at the spa in our community pool section stating that “Children under 14 are prohibited from using the spa.” It’s just a flat out ban of children under 14, with or without a guardian. My 13-year-old daughter and 11-year-old son were devastated when a security guard told them they’d have to get out because of the sign. There was no one else in the pool or spa section other than us and our children. He said he feared losing his job if he didn’t try to enforce this. Is this a violation of the Fair Housing laws? If so, can you provide a link or legal reference to this?

Thank you,

E.A., Menifee

Dear E.A.,

HOAs are currently required by Title 24 California Code of Regulations Section 3120B.4 to post a sign banning use of pools by children under the age of 14. At the same time, the Fair Housing laws ban discrimination against children, and do not contain an exception for safety. There have been several reported federal court cases in California in which housing providers have been sued because they tried to enforce the policy stated in the sign.

The state Department of Public Health was considering amendments to its regulations to resolve this conflict in the law, but so far no changes have been announced on its web site.

There are other instances in which safety concerns clash with Fair Housing laws, such as clubhouse or gym equipment usage. However, at this point, there is no apparent safe harbor or excuse for discrimination based upon legitimate safety concerns, and the forthcoming state Fair Housing Regulations will not permit safety concerns to justify familial status discrimination.

The prohibition against discrimination based upon familial status (and other protected classes) is found at Government Code Section 12955(a).

Thanks,
Kelly

Kelly,

With Fair Housing, it can be hard to do the right thing. I have some questions about our 55 and older community. Can we limit pool use by children under 13? Could we limit children’s use of the pool to between 2 & 5 or is this discrimination? Can we only allow residents to use facilities, with no guests allowed?

F.P., Goleta

Dear F.P.,

Your age-restricted community association may discriminate based upon familial status (families with children under the age of 18), pursuant to Government Code Section 12955.9. So, yes, your association, if it qualifies as “housing for older persons” under that statute, may ban children from the pool or have special “kids allowed” hours.

Non-age-restricted communities should consult legal counsel before trying to allocate pool hours for kids. In an appellate case published in 1987, Sunrise Country Club v. Proud, the court permitted an association to allocate some of its 21 pools to adult-only use. In 1992, the California Attorney General issued an opinion that under the appropriate circumstances HOAs could allocate one of two pools as “adults only.”

And yes, the HOA could ban residents from bringing guests to HOA facilities, but that might prove controversial when that proposed rule is published.

Best to your community,
Kelly

Written by Kelly G. Richardson

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Principal of Richardson|Ober PC.

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