Condo Media - March 2018 - 16

Asked & Answered

Adult Swim

Avoid Wading into Potential Pool Problems

Because our small pool is overflowing
with children, the board is considering
designating a brief, one- to two-hour
period each day as an adult-only swim
time. Do you have any suggestions
about how we should structure this,
and are there any laws of which we
should be aware?

I'll start with the second question (applicable
laws) first, because it pretty much eliminates the
need to answer the first one. State and federal Fair
Housing laws make it illegal to discriminate against
designated protected classes, which include families
with children. An adult swim period violates that
law, Sandy Moskowitz, a shareholder with Davis,
Malm & D'Agostine, P.C., explains, because it treats
children differently.
Children must be able to enjoy the pool fully and
on the same terms as adults, which, Moskowitz
notes, pretty much eliminates most of the overcrowding solutions you might contemplate, if not
all of them. For example, designating a lane for lap
swimming only would seem to pass muster as long as
you allow children to swim laps in that lane, too. But
this might still be deemed discriminatory, Moskowitz cautions, because children who can't swim laps
would be barred from using this space.
One alternative you might consider if the pool is
large enough, Moskowitz suggests, is designating
equal numbers of lanes or equal amounts of space for
laps and free swimming. This should avoid a discrimination claim, he says, as long as the configuration of
the space doesn't crowd children more than adults or
otherwise impair their enjoyment of the pool.
Building a separate pool for children wouldn't
work, however, even if you were willing to incur that
expense, because the law requires children to have
access to the same pool as adults, not to one that is
comparable or similar or equivalent to it.

CONDOMEDIA

The key to dealing with
this complicated and high-risk
legal issue, Moskowitz says, is to
focus on solutions "that don't target
children," and to make sure that any rules
you adopt have an objective, clearly nondiscriminatory purpose.
Some rules that seem to be perfectly logical may
also be profoundly illegal under the fair housing
laws. Swim diapers are one example. A rule requiring them for children under the age of three who
aren't toilet trained seems reasonable, but it would
be deemed discriminatory, Moskowitz notes, unless
you impose the same requirement on adults who are
incontinent.
Enforcement is going to be problematic. It's
hard to imagine a monitor standing at the pool gate
demanding, "Show me the diapers." You might insist
on verifying that toddlers who are likely to need
diapers are wearing them (although some parents
will almost certainly object), but how are you going
to monitor compliance by adults?
The best you can do in this area, Moskowitz suggests, is to post a sign indicating that swim diapers
or their equivalent must be worn, "if needed,"
without specifying the age of those who might require this precaution; hope that people will comply
voluntarily; and plan on cleaning and sanitizing the
pool frequently.

Condo Media - March 2018

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