On occasion in the apartment industry, we run into conflicts between safety concerns and Fair Housing issues.  While you want to be sure that children and others are safe, at what point are you protecting them at the risk of a Fair Housing violation?
In 1988, Congress enacted the Fair Housing Amendments Act, which for the first time, prohibited discrimination against persons based on familial status.  When the Fair Housing Act was amended to protect families with children, many of the customary rules at apartment communities had to change.  You could no longer have all-adult communities, all-adult sections in communities or even all-adult pools.
Over the past 20-plus years, apartment communities have accepted the new restrictions but have also tried to address safety concerns when young children are left unsupervised in the common areas.  What rules can be adopted to address safety concerns without running afoul of the requirements to welcome families with children to your property?
In a case decided by the United States District Court for the Eastern District of California on December 20, 2009, the court considered several rules relating to the supervision of children.  The court’s opinions may surprise you!

All Children 10 and Under Must be Supervised By an Adult While Outside
The court said that since this rule, on its face, targets families with children 10 and under, the burden shifts to the owner to show a legitimate business reason for the rule.  While the owner was free to impose rules for health and safety reasons, the rules must be reasonable.  The owner did not show why it was reasonable to impose a restriction on children as old as 10 and provided no explanation why a 10-year old must be accompanied by an adult when outside, other than simply stating that the rule was required for safety and enjoyment.
The court opined that it would be reasonable for such a restriction, it held that the 10-and-under rule was overbroad and unduly restrictive.  The court had a problem with a rule that would restrict a 10-year old child from reading a book steps away from his or her front door and found that this rule violated the Fair Housing Act.

Bicycle Riding, Skateboarding, Rollerblading and Skating Along Common-Area Sidewalks, Walking And Parking Areas is Prohibited
The residents argued that this rule, although not facially discriminatory, has a disparate impact on children because children are more likely to ride bicycles, skateboard, rollerblade and skate in common areas than adults.  They argued that the rule had an adverse impact on families.   The court stated that this argument would require the court to make an assumption that the children are more likely than adults to ride bikes, skateboard, rollerblade or skate; however, the residents provided no evidence to support this assumption.  Therefore, the court declined to find that this rule was discriminatory.

Children Under 18 Must Have Adult Supervision While Using the Clubhouse
The court found that an ordinary reader would interpret this rule as placing a limitation on children.  Although the owner suggested that this rule is necessary for safety and liability reasons, the court could not conclude that an ordinary reader could interpret the rule, which includes a prohibition on children one year away from the age of majority, from entering the clubhouse with adult supervision other than a discriminatory limitation.  The court found that this rule violated the Fair Housing Act.

Children Under 12 Are Prohibited From Using the Pool Table
The owner attempted to justify this rule by stating that it had a safety-related reason for children as well as adults and was also designed to prevent property damage.  The court, however, could not agree that an ordinary reader would interpret the rule in this fashion and found the rule to be in violation of the Fair Housing Act.

Children Under 14 Must Be Supervised by a Parent or Legal Guardian While Using the Pool and Spa
The court stated that an ordinary reader would interpret this as a limitation on children, especially since the child specifically needs supervision from a parent or legal guardian.  The court stated that this means that children under 14 cannot use the pool with the supervision of other adults, such as older siblings, adult babysitters or even other adult family members.  The owner attempted to argue that the rule addressed a safety concern; however, the court stated that the requirement of parent or legal guardian supervision transforms the rule from one that could be reasonably interpreted as a safety precaution to one that simply limits children and their families.
It is interesting to note that the owner contended that the rule was required by California regulations regarding pool use, which stated that if no lifeguard was on duty, a warning sign must be placed that reads, in part, Children under the age of 14 should not use pool without an adult in attendance. However, since the state’s requirement did not specifically provide that the supervising adult must be either a parent or guardian, the court was not persuaded by the owner’s argument and found that this rule violated the Fair Housing Act.

Children Under 18 Must Abide By a 10 P.M. Curfew
As with the other rules, the court stated that an ordinary reader would likely interpret this as a limitation on children, especially since it effectively acts as a blanket prohibition on children being outside after 10 p.m.
The court stated that the owner failed to cite anything other than a general safety concern and could not suggest than an ordinary reader would interpret this rule as anything other than a prohibition on children and their families.   The court found that this rule violated the Fair Housing Act.

In a 2003 case decided by the United States District Court for the Central District of California Western Division, the court also discussed a number of adult supervision requirements.  The court held that prohibiting all children from walking around a park without adult supervision is overly broad regardless of the concern.  As with absolute prohibitions, these adult supervision requirements are also not the least restrictive means to achieve health and safety objectives.  The court stated that there is nothing magical about the age of 18 or 14 years old if the owner’s concerns are for the protection of the health and safety of children or other residents when using recreational facilities or the swimming pool or riding bicycles.  The court stated that, rather than being connected to such ages, bicycle and pool safety would be better served with a proficiency requirement.
We can learn from the California courts’ interpretation of these rules “ before implementing a rule, it would be beneficial to do the following.

1.  Determine whether the rule targets families with children on its face. This would be the case for any rules that specifically mention children.  Although having these rules is not necessarily prohibited, it would be better if the same goal can be accomplished without targeting families with children.  For example, a rule that children cannot play ball in the parking lot can easily be changed to a rule that prohibits anyone from playing ball in the parking lot.  A safety-related concern with a rule like this would be equally addressed not matter who is playing in the parking lot.
2.  If the rule targets families with children, be able to articulate the legitimate business reason for the rule. Obviously, a rule that limits young children from being in the pool area without being properly supervised will target families with children.  This, in and of itself, is not a problem, as long as there is a reasonable legitimate business concern that is achieved by the rule.  As indicated by the California court, an ordinary reader reading the rule would have to interpret that the legitimate business concern is reasonable.
3.  If a rule targets families with children and you have articulated a legitimate business reason for the rule, the rule should be the least restrictive way by which to accomplish the goal. A rule stating that no one under the age of 18 can use the pool without adult supervision accomplishes a safety-related concern, but it would not be the least restrictive method by with to address the safety concern.
Consequently, that rule should be changed to lower the age at which a child must be supervised by an adult.  The age restriction should be rationalized in light of the swimming proficiency of children of a certain age; rather that simply stating that it applies to all children.

Any rule you establish will be subject to interpretation.  Focusing your attention on the legitimate business need for the rule, coupled with the least restrictive way to achieve that need, will allow you to avoid unnecessary problems when the rule is viewed in light of the Fair Housing Act.

Howard Bookstaff is an attorney with Hoover, Slovack, LLP.  Reprinted with permission of ABODE.

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