Can incontinent persons and swim diapers be banned in the pool?

Legal Matters David G. Muller
Attorney David G. Muller is a shareholder with the law firm of Becker & Poliakoff, P.A., Naples.

Editor’s Note: David G. Muller is an attorney with the law firm of Becker & Poliakoff, P.A., which represents community associations throughout Florida, with offices in Naples, Fort Myers and 11 other Florida cities. The firm focuses a substantial amount of its practice on condominium and homeowners association law. Attorney Muller responds to your community association questions. Send questions by email to dmuller@bplegal.com.      

Q: The previous pool rules for our condominium prohibited non-potty-trained children and incontinent adults. The board voted to change the rules to "Incontinent persons are required to wear waterproof diapers."

I have researched this situation and contend that prohibiting incontinent persons complies with the law. When I shared my opinion with the board they told me that they were advised that the federal Department of Housing and Urban Development (HUD) has specifically held in one of its rulings that the goal of keeping a sanitary pool can be achieved by less restrictive means than banning non-toilet trained individuals. Apparently the HUD ruling states that the stated goal can be achieved by requiring all non-toilet trained children and incontinent individuals to wear waterproof diapers.

Retired physicians living in my building have all stated that they feel waterproof diapers in our pool is a mistake, and my research has shown that waterproof diapers are less than fully effective. A friend told me that there is no Florida case law or arbitration decision bearing on this issue. Do you know of the referenced HUD ruling? W.E.  

A: All community associations need to be aware of the various requirements contained in the federal Fair Housing Act (FHA). The FHA prohibits discrimination based upon "familial status," which generally involves having children, and based upon qualifying disabilities. An alleged FHA violation committed by a community association is subject to investigation and potential penalties imposed by HUD and the administrative law judges who adjudicate HUD complaints, as well as potential action in federal court.

I located a few cases which address the application of the FHA to pool restrictions involving children. In the 1992 case of HUD v. Paradise Gardens, Section II, Homeowners Association, et al., the covenants for a Margate, Florida community association prohibited children under the age of 5 from using the swimming pool and further restricted children between the ages of 5 and 16 from using the pool from 11 a.m. to 2 p.m. each day. One of the association’s justifications for the restrictions was the possible threat of fecal material in the pool.

The covenants were found to be discriminatory against families with children and the association was fined in excess of $7,000. The administrative law judge, who issued the opinion, made reference to the policy reasons why the FHA was amended in 1988 by Congress, including the fact that a study found that more than 50 percent of all rental units either prohibit or restrict residency by children. Further, the decision confirmed that the association offered no evidence to suggest that the restrictions were established for health and safety reasons.

In contrast, HUD offered testimony from an environmental specialist who testified that there is no health reason to exclude children of any age from a pool and that a healthy and clean pool can be maintained regardless of the ages of those who enter the pool. The expert further opined that there was no correlation between the age of the swimmers and the sanitariness of the pool. 

In the 1993 case of HUD v. Pine Ridge at Lake Tarpon Village I, et al., a rule for a Tarpon Springs, Florida condominium association stated “…due to the potential for contamination of the pool all babies and small children not fully potty trained may not enter or be carried into the pool.”

The rule was found to be discriminatory and the rule was ordered to be changed to “... any person who is incontinent or not fully potty trained must wear appropriate waterproof clothing when entering or being carried into the pool.”

The association was required to pay $1,500 to the residents who pursued the discrimination complaint for their inconvenience and emotional distress. 

These cases, of course, apply to age-specific swimming pool restrictions and did not specifically involve a broader ban on all incontinent persons from using the swimming pool. Notwithstanding, portions of the analysis of these cases could have application to an age-neutral swimming pool ban on all incontinent persons. Further, if a rule is predicated on a health and safety concern, the subject concern needs to be clearly identified and justifiable.

A ban on all swim diapers could very well lead to a HUD complaint or lawsuit against the association based upon familial status and/or disability. The reviewing court will likely consider whether there are less restrictive measures (e.g. the possibility of installing ultraviolet or ozone disinfecting systems to purify the water, etc.) which could possibly be pursued in lieu of adopting a total ban.

The larger take away here is that all community associations need to proceed with caution when considering the adoption of child-specific restrictions or restrictions which could have a disparate impact on persons with disabilities. Such restrictions come with the inherent risk of a potential discrimination complaint being filed by a resident. Community association boards are encouraged to consult with the association attorney before adopting these restrictions and boards should also consider whether there are less restrictive means to accomplish the desired objective. 

Attorney David G. Muller is a shareholder with the law firm of Becker & Poliakoff, P.A., Naples (www.bplegal.com). The information provided herein is for informational purposes only and should not be construed as legal advice.