POA SPLASH LAW: PRIVATE POOLS AND FHA/ADA CONSIDERATIONS FOR TEXAS PROPERTY OWNER ASSOCIATIONS

 I.    Introduction

A community pool can be a tremendous asset to Property Owners Associations (“POA”)[1] and may serve to increase property values, attract buyers, and provide healthy recreational opportunities for its members, guests, and invitees.  In an effort to protect these individuals, well-meaning members of the Board of Directors often pass pool rules to prevent injury and promote members’ overall health and safety.  However, if the drafting is not done carefully, seeming innocuous rules such as those restricting the age or times that individuals may use the pool could result in serious discrimination claims under the Fair Housing Act (“FHA”) that could cost the POA thousands of dollars in fines and penalties.  In addition, if a POA opens its pool to the general public, it could potentially become subject to the Americans with Disabilities Act (“ADA”) obligating it to comply with numerous accessibility requirements as well.  This article will examine how a POA should structure its swimming pool rules in light of the FHA, discuss case law under the FHA, review the FHA senior living exception, and discuss the impact of the ADA on POA pools.

II.   The Federal Fair Housing ACT AND POA Pools

Over fifty years ago, Congress passed the landmark Fair Housing Act of 1968 as Title VIII of the Civil Rights Act, which outlawed public and private discrimination in housing in the United States.  The FHA is codified at 42 U.S.C. §§ 3601 – 3619 and originally served to prohibit housing discrimination against individuals in the following four (4) protected classes:  race, color, religion, and national origin.[2]  In 1974, sex was added as a protected class and in 1988, the FHA was further amended to by adding two (2) additional protected classes – disability and familial status – both of which are which are of particular importance to POAs.[3]

POAs are subject to the FHA due to a key provision set forth in Section 3604(b) which makes it unlawful to discriminate in the “provision of services or facilities” in connection with a “dwelling.”  Section 3604(b) provides that it shall be unlawful to:

“Discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the PROVISION OF SERVICES OR FACILITIES in connection therewith, because of race, color, religion, sex, familial status, or national origin.”[4]

Since POA’s often provide common area services OR FACILITIES in connection with a dwelling such as community swimming pools, this serves as the nexus to connect POAs to the FHA and obligate them to comply with its provisions.[5]

The Act recognizes two types of discrimination under the FHA: (i) discriminatory treatment and (ii) disparate impact.  Discriminatory treatment occurs when the victim is expressly treated differently than others in the community based on his/her protected class. Discrimination through disparate impact, however, occurs when a facially neutral rule has the effect of discriminating against a protected group.  POAs may unwittingly commit both types of discrimination, but the categories in which they most often occur are in the areas of familial status and disability.

A.    Familial Status Discrimination

1.    In General

Per Section 3604(b) of the FHA, POAs may not discriminate based on familial status which essentially means they may not discriminate against families with children, pregnant women, and anyone with legal custody of a child under 18.  Specifically, the term “familial status” is defined in Section 3602(k) of the FHA as:

“one or more individuals (who have not attained the age of 18 years) being domiciled with—

(1)   a parent or another person having legal custody of such individual or individuals; or

(2)   the designee of such parent or other person having such custody, with the written permission of such parent or other person.  The protections afforded against discrimination on the basis of familial status shall apply to any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of 18 years.”

With limited exceptions, if a POA treats families with children differently than other individuals in the community either through direct or disparate impact discrimination, then a discrimination claim may be leveled against the POA.

The most common way POAs discriminate based on familial status is by passing rules which deny children equal access to common areas pools.  If a POA rule precludes a child or family from the full use and enjoyment of a POA pool or sets rules which limit the times children may use the pool, then that could be considered discriminatory treatment based on familial status.

The Department of Housing and Urban Development (“HUD”) enforces the FHA and has stated that “housing providers may not impose rules which unreasonably limit the use of privileges, services, or facilities associated with a dwelling because of familial status.”[6]  However, reasonable rules may still be imposed since HUD “does not believe that Congress intended the Act to preclude housing providers from implementing reasonable health and safety rules.”[7]

The question then becomes one of drafting:  which rules are reasonable for purposes of health and safety and which are not?  While POAs may set reasonable pool rules to protect their residents, they may not pass rules which treat families with children differently than other residents.  The general interpretation of a “reasonable” health and safety rule is one that is: (i) rooted in a “compelling business necessity” AND (ii) constitutes the “least restrictive means” to achieve the desired effect.[8]  Thus, while it’s clear that passing rules to keep a pool safe may certainly be a compelling business necessity, POA boards must be careful to draft rules which accomplish that in the least restrictive manner possible.

This is a delicate balance to achieve and requires creative drafting. This also highlights the importance of reviewing POA pool rules with an experienced POA attorney in order to avoid rules which could result in unnecessary discrimination claims.  Below are some traps for the unwary in the form of poorly drafted pool rules as well as alternative rules to consider based on case law and HUD decisions.

2.    Pool Rules to Avoid

1. “Adults Only” Pools and “Families Only”

 Pools

Avoid rules designating separate pools for adults and children.

• Poorly Drafted Rule: “Children must swim in “Families Only” pools. ‘Adult Pools’ are for adults only.”
• Alternative Rule: “All individuals including families are welcome at all pools during normal pool hours.” [9]

Rules which establish “adults only” pools may discriminate against families with children by denying them equal access to all POA common area swimming pools.  A ‘separate but equal’ pool scheme for adults and children is no more acceptable now than it was for minorities during the landmark civil rights era.  POAs should avoid passing rules which are facially discriminatory to certain groups and draft rules which apply to EVERYONE – not just a specific class of people such as children, women, or handicapped individuals.

The importance of avoiding “Adults Only” pools was illustrated in the case of Llanos v. Estate of Coehlo, 24 F. Supp. 2d 1052 (E.D. Cal. 1998).  In this case, an apartment complex had a total of six swimming pools.  Four were reserved for adults only and only two could be used by families with children.  The management published a rule which stated that, “Children must swim in family pools only and adult pools are for ADULTS ONLY.” The plaintiffs filed suit for discrimination under Section 3604(b) of the FHA which prohibits discrimination based on familial status.[10]

The plaintiffs claimed the POA’s “Adults Only” pool rule treated children – and thus, families with children – differently and less favorably than adults-only households.  The defendant rebutted plaintiffs’ prima facie case by showing their rule was required for a “reasonable business reason” since it was “universally known that children must be carefully supervised in the area of swimming pools.”[11]  The court found defendant’s rule to be “overly broad, paternalistic” and unduly restrictive” and stated that less restrictive rules could have been drafted to accomplish the same goal.  They observed that pool rules which “prevent a 16 or 17 year old certified lifeguard from swimming unaccompanied in adult pools” was illogical and held that defendant’s pool rules prohibiting children from using adults only pools were clearly discriminatory under the Fair Housing Act.[12]

A similar decision was reached in Landesman v. Keys Condo. Owners Ass’n, No. C 04-2685 PJH, 2004 U.S. Dist. LEXIS 21746 (N.D. Cal. Oct. 19, 2004).  In this case, the condo association prohibited children from using the main pool since adult residents enjoyed using it for lap swimming in relative tranquility, free from the distractions of active, noisy children.  Even though the court stated it was sympathetic “to the concerns of the adult residents who want to be able to enjoy the pool in peace,”[13] it held that the adults only pool rule amounted to discrimination under the FHA since the POA could not articulate a “legitimate justification for excluding children from the main pool.”[14]

Notably, the court took great pains to emphasize that the POA could have carefully drafted alternative pool rules that were FHA compliant and stated they were free to “impose other reasonable, age-neutral restrictions on the use of one or more of the pools, such as setting aside certain hours for lap-swimming or lap-walking, or such as imposing restrictions on making noise (no screaming or loud playing of radios or CD players) or running or roughhousing in the pool area. In addition, the [POA] could require residents with more than a certain number of guests to use one of the auxiliary pools.”[15] Thus, it’s clear that pool rules may be set by POA Boards as long as they are reasonable and represent the least restrictive means to accomplish a legitimate and compelling business necessity.    

b.    “Adults Only” Swim Times

Avoid rules which designate “adults only” swim times and instead draft rules setting times for lap swimming.

• Poorly Drafted Rule: “Adult Swim shall occur for the first 10 minutes of every hour and no children are allowed in the pool.” OR “Children are only allowed to use the pool between the hours of 10 am and 12 noon,” etc.
• Alternative Rule: “Lap Swimming shall be held during the first 10 minutes of every hour.”

Federal and state courts have consistently struck down “adults-only” swim time restrictions as discriminatory based on familial status under the FHA since such rules are based on age and not swimming ability.  If the concern is for safety, a neutrally drafted rule earmarking times for lap swimming may address such concerns without being discriminatory (and may actually result in adults-only swim time).  The key difference is that an “Adult Swim” time is a restriction on who can use the pool (which is not allowed) while the “Lap Swim” time is a restriction on how the pool may be used (which is allowed).

The California District Court case of United States v. Plaza Mobile Estates illustrates the importance of avoiding “Adult Swim” times.[16]  In this case, a mobile home park had a rule which limited children’s use of the pool to two (2) hours per day only from 10 am to 12 noon and required children to be accompanied by a registered adult in order to use the pool.  All other times were deemed to be adult swim times.  The rules stated that individuals “under the age of eighteen (18) years old may use the swimming pool…[ONLY] during the hours of 10:00 a.m. to 12:00 p.m. (noon) every day…..[and] children under the age of fourteen (14) years old must be accompanied by the registered resident adult…in order to use any of the recreational facilities.”[17]

The court held that “although the health and safety of the children and other residents of the park are legitimate concerns, these absolute prohibitions are not the least restrictive means to achieve such ends.”[18]  The court further stated that limiting the hours during which children could use the pool in order to “equitably account for the interest of [adult] tenants” was “not a compelling interest” and was discriminatory to children under the Fair Housing Act. [19]   Thus, pool rules which limit children’s swimming times should be avoided.

c.     Age Based Pool Rules

Avoid rules which limit pool use to certain ages rather than swimming proficiency.

• Poorly Drafted Rule: “Children under the age of 18 are not allowed in the pool at any time unless accompanied by parents.”
• Alternative Rule: “Individuals with limited swimming abilities must be accompanied by an experienced swimmer.”

The poorly draft rule above could violate the FHA since it discriminates against children without regard to their swimming ability.  Since children as young as 15 may be certified as Red Cross lifeguards, age limitations should typically be avoided.  A less restrictive and more facially neutral rule such as the one above could potentially accomplish the same safety goal without running afoul of the FHA.

Another case which illustrates the importance of avoiding rules requiring children under 18 to be supervised by adults is Iniestra v. Cliff Warren Invs., Inc., 886 F. Supp. 2d 1161 (C.D. Cal. 2012).  In this case, an apartment complex had a rule which stated that “Children under the age of 18 are not allowed in the pool or pool area at any time unless accompanied by their parents or legal guardian.”[20]  The plaintiffs, who were parents of three children, filed a discrimination lawsuit under the FHA based on familial status stating their children were denied equal access to the community pool.  The court held that the rule was discriminatory on its face since it “treated children, and families with children, differently and less favorably than adult-only households.”[21]  Upon determination by the court that the pool rule was facially discriminatory, the burden shifted to the defendant to prove this this rule was the least restrictive means to meet a compelling business necessity.

The Court held that the apartment complex could not establish its burden and stated that the pool rule “which uniformly prevents children under 18 from entering the pool without an adult is not an efficient method of achieving pool safety.  Indeed, it is entirely possible that younger children might be more adept swimmers than their older counterparts” and “a prohibition on unsupervised swimming which would prevent even a 17-year old certified lifeguard from swimming unaccompanied is overly restrictive.”[22] The court also noted that the plaintiffs’ children, who were competent swimmers, were not allowed in the pool facility without a parent, but yet illogically, adults who never swam a day in their life could use the pool facility without any supervision. The court further found that “while the court recognizes the inherent dangers of unsupervised swimming, the requirement of parent or legal guardian supervision transforms this rule from one that could be reasonably interpreted as a safety precaution to one that simply limits children and their families.”[23]

In the case of United States v. Plaza Mobile Estates referred to above, the defendant mobile home park had a rule which required children under the age of 14 to be accompanied by a registered adult in order to use the pool.[24]  The court stated that “there is nothing magical about the age of 18 or 14 years old if defendants’ concerns are for the protection of health and safety of the children….Pool safety would be better served with a proficiency requirement” rather than an age requirement.[25]  Thus, pool rules should be carefully drafted to emphasize swimming proficiency rather than age in order to avoid inadvertent discrimination against children and families.

d.    Rules Prohibiting Non-Potty-Trained Children from Using the Pool

Avoid pool rules which limit children who are not potty trained from using the pool.

• Poorly Drafted Rule: “Children under 3 years of age and those who are not potty trained must wear swim diapers or they may not use the pool.”
• Alternative Rule: “Any person who is incontinent or not fully toilet trained must wear appropriate waterproof clothing when entering the pool.”

Concerns with sanitation are often cited as a compelling business necessity for limiting children’s use of the pool.  However, forbidding non-potty-trained children from using the pool altogether neglects the fact that some adults may be incontinent as well and could violate the FHA since it’s not the least restrictive means to achieve the goal of proper pool sanitation.  Instead, the POA’s goal could be achieved by requiring that ALL incontinent or non-toiled trained persons wear waterproof pants.

The importance of avoiding rules which limit children’s pool use due to sanitation reasons is illustrated in the 1992 case of HUD v. Paradise Gardens, Section II, Homeowners Association, et al. [26]   In this case, the POA passed rules that completely barred children under the age of 5 from using the pool and only allowed children from ages 5 to 16 to swim between the hours of 11am and 2pm.  One of the POA’s justifications for these restrictions was the “possible presence of fecal material in the pool.”[27] However, HUD offered testimony from an environmental specialist that stated there was no health reason to exclude children of any age from pools and there was no correlation between the age of the swimmers and the sanitariness of the pool.[28]  The judge rejected the POA’s arguments that the rule limited potential fecal contamination and held it had no legitimate safety purpose.  Thus, the court held that pool rule violated the familial status provision of the FHA and amounted to discrimination against children.[29]

In regard to the rule completely barring children younger than 5 years old from using the pool, the court stated that although the POA “may have a valid interest in promulgating rules to protect residents from drowning,” this rule was “too broad and not really designed to protect the children….Use of a pool and learning to swim is a life safety skill that children should not be denied and the best protection against drowning for a child is eye contact supervision.”[30]

The POA and the other defendants were ordered to pay damages for emotional distress, humiliation, and inconvenience to two families:  $4,000 to one family and $3,500 to the other.  In addition, the judge assessed civil penalties of $3,000 against the POA and $100 each against two of its spokespersons.[31]

In the HUD case of Leonard v. Seaboard Arbor Management Services, Inc., the Administrative Law Judge required the POA to change its rule prohibiting all babies and children who were not fully potty trained from entering or being carried into the pool, to the following: “Any person who is incontinent or not fully potty trained must wear appropriate waterproof clothing when entering or being carried into the pool.”[32]  Again, careful and creative drafting is key when promulgating pool rules for POAs.

e.     Rules Solely Targeting Children for Irresponsible Pool Behavior

Avoid rules which specifically and solely name children as the perpetrators of bad behavior near pools.

• Poorly Drafted Rule: “Children must not run or engage in horseplay in the pool area.”
• Alternative Rule: “No running or horseplay in the pool area”

Since the above rule solely targets children and their behavior, it could be deemed to be overly restrictive and not the least restrictive means to accomplish the POA’s safety goals.  Since adults may also run or act recklessly in pool areas, the alternative rule listed above is preferred.

f.     Rules Prohibiting Baby Equipment and/or Children’s Play Equipment Near Pools

Avoid rules which prohibit baby or children’s equipment near pools.

• Poorly Drafted Rule: “No baby strollers, walkers, or playpens may be brought into the pool area.” AND/OR “Children shall not bring bikes or skates into the pool area.”
• Alternative Rules: “Only lounge chairs are allowed in the pool area.” and “Bicycles and skates are prohibited in the pool area.”

Since the above rules focus solely on baby and children’s equipment, they are overly restrictive and a do not represent the least restrictive means to accomplish a health and safety goal.

B.    Disability Discrimination under the FHA

1.    In general

The FHA prohibits discrimination by a POA based on an individual’s disability or handicap (or on the disability of anyone associated with or renting from them) and from treating them less favorably than others because of their disability.

Section 3604(f)(2) of the FHA prohibits discrimination against handicapped[33] persons and makes it unlawful to:

“discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of—

• that person; or
• a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or

(C)  any person associated with that person.”[34]

The term “handicap” is defined in the FHA as:

• “a physical or mental impairment which substantially limits one or more of such person’s major life activities,
• a record of having such an impairment, or

(3)   being regarded as having such an impairment, but such term does NOT include current, illegal use of or addiction to a controlled substance.”[35]

This definition may also include: alcoholism, HIV or the AIDS virus, mental illness and certain physiological disorders, specified types of anatomical losses, orthopedic, visual, speech and hearing impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, and drug addiction (other than addiction caused by current, illegal use of a controlled substance).

At first blush, this definition of handicap appears to be very broad; however, the impairment must also “substantially limit one or more life activities” (i.e., those that are of central importance to daily life) such as seeing, hearing, walking, breathing, performing manual tasks, caring for one’s self, learning, and speaking.

Residents and their guests may ask a POA to grant them reasonable ACCOMMODATIONS to its rules or reasonable MODIFICATIONS to its facilities as discussed below.  (Note the distinction between these two terms:  a request to change a POA’s rules = an “accommodation” and a request to change a POA’s facilities = a “modification.”)

2.    Requests for Accommodation to POA Rules under the FHA and the Burden to Pay

Occasionally, an individual may ask their POA to grant an exception to its rules or policies in order to allow a disabled individual equal access to a POA’s amenities such as the community pool.  These types of requests are called “accommodations” under the FHA.

The FHA makes it unlawful for any person to refuse “to make reasonable accommodations to rules, policies, practices, or services, when such accommodations may be necessary to afford … person(s) [with disabilities] equal opportunity to use and enjoy a dwelling.”[36]

In order to be granted an accommodation, a requester must first show that an individual has a disability, as discussed further below.  Second, the requestor must show that the requested accommodation is reasonable and necessary and that there is an identifiable relationship, or nexus, between the requested accommodation and the individual’s disability.   If both a disability and nexus exist, the POA must be willing to make a reasonable accommodation to its rules in order to allow the handicapped individual the opportunity to have the full use and enjoyment of their dwelling and its associated common areas.[37]

Interestingly, individuals are not formally required to submit their requests for accommodations in writing under the FHA or to “use the words ‘reasonable accommodation’…or any other special words to request a reasonable accommodation under the FHA.”[38]  However, HUD highly recommends that individuals put their requests in writing in order to “avoid miscommunications.”[39] Furthermore, the request does not need to be made by the person with the disability and may be submitted by a family member or another individual on the disabled person’s behalf.

To ensure that such requests do not fall through the cracks, POAs should consider adopting a Resolution Regarding Requests for Accommodations and Modifications under the FHA and ADA as well as forms for homeowners to submit to the Board in order expedite such requests and streamline the process.

In the context of reasonable accommodations for POA pools, if a resident asks the POA for permission to bring their emotional support animal to the pool but the POA has a rule which prohibits pets in the pool area, then the POA would need to alter their rule as to this disabled person in order to allow them to bring their emotional support animal to the pool with them.

• Poorly Drafted Rule: “No animals allowed in the pool area.”
• Alternative Rule: “Only service or emotional support animals are allowed in the pool area.”

In regard to the burden to pay for such accommodations to rules under the FHA, the POA must bear these costs, which are typically minimal.  For example, a POA may not charge disabled person a pet fee or pet deposit in order to bring a service animal to the pool, etc.

One of the most commonly asked questions by POAs in this regard is whether they may ask individuals requesting an accommodation for additional information or “proof” of their disability.   Per the 2020 HUD Guidance Document, if a requester’s disability not readily observable or known to the POA, then the POA “MAY request information regarding…the disability [but they]…are not entitled to know an individual’s diagnosis.”^[40]

Some of the types of information a POA may request to confirm a disability are as follows:

• “Information confirming disability from a health care professional – g., physician, optometrist, psychiatrist, psychologist, physician’s assistant, nurse practitioner, or nurse.
• A determination of disability from a federal, state, or local government agency.
• Receipt of disability benefits or services (Social Security Disability Income (SSDI)), Medicare or Supplemental Security Income (SSI) for a person under age 65, veterans’ disability benefits, services from a vocational rehabilitation agency, or disability benefits or services from another federal, state, or local agency.
• Eligibility for housing assistance or a housing voucher received because of ”[41]

In regard to whether internet certificates (such as those designating pets as a service animal) are considered a valid form of documentation for   accommodation requests under the FHA, HUD has stated that “such documentation from the internet is NOT, by itself, sufficient to reliably establish that an individual has a non-observable disability or disability-related need for an assistance animal.”[42]  Thus, another form of documentation (such as a note from a person’s health care professional) in addition to an internet certificate, would be needed to confirm a person’s disability.

Once the POA has confirmed the disability, such information must be kept confidential and must not be shared with other persons unless required by law.[43] Also, please keep in mind that the provisions of the FHA are “reactive” (rather than “proactive” like the ADA as discussed below) which means that a POA is not automatically obligated to change its rules until AFTER it receives an actual accommodation request from a resident.

C.    Reasonableness of Accommodation Requests under the FHA
In determining whether an accommodation is “reasonable,” the courts will weigh the benefit of the proposed accommodation to the disabled person against the costs/undue burden it imposes on the POA.[44]  The undue burden analysis should be made on a case-by-case basis and involves the review of various factors, such as the following:

• What is the cost of the requested accommodation?
• What benefits would the accommodation provide to the requester?
• Would the accommodation be an undue financial burden to the POA?
• What are the financial resources of the POA?
• What alternative accommodations are available that would effectively meet the requester’s disability-related need?
• Would the accommodation be an undue administrative burden to the POA?
• Would the accommodation fundamentally alter the nature of the services offered by the POA?
• Would the accommodation represent a fundamental change in the POA’s policies and/or interfere with the rights of third parties?
• Would the accommodation pose a direct threat to the health or safety of others despite any other reasonable accommodations that could eliminate or reduce the threat? and
• Would the request result in significant physical damage to the property of others despite any other reasonable accommodations that could eliminate or reduce the physical damage.^[45]

If the answer to these questions is generally “no,” then a POA should typically grant a request to change its rules or policies in order to accommodate a person’s disability.

In regard to reasonable accommodation requests for assistance animals under the FHA, HUD recently issued new guidance on January 28, 2020 which sets forth different levels of proof needed to establish a disability-related need if the animal is a typical household animal vs. if it is a “unique” animal.^[46]  The following animals are classified by HUD as typical household animals:  “dogs, cats, small birds, rabbits, hamsters, gerbils,…fish [and] turtles….[However,] reptiles (other than turtles), barnyard animals, monkeys, kangaroos, and other non-domesticated animals are not considered common household animals.”[47]

Individuals requesting accommodations for other “unique” animals such as livestock, monkeys, kangaroos, etc. (i.e., those that do not typically live inside a home) will face a “substantial burden” in demonstrating how this animal directly meets a disability related need. Once the request is submitted, the POA “should make a determination promptly, generally within 10 days of receiving documentation.”[48]

One case that dealt with the reasonableness of a requested accommodation under the FHA was Davis v. Echo Valley Condominium Association, 945 F.3d 483 (6^th Cir. Dec. 19, 2019).  In this case, the Sixth Circuit Court of Appeals recently held that an asthmatic condo owner’s request to require a POA to ban smoking inside a condo building was NOT a reasonable accommodation under the FHA since it required a fundamental change in the condo association’s policy.  The plaintiff, condo owner Phyllis Davis, was cancer survivor who complained that the smoke from her neighbor’s unit was aggravating her asthma and asked the POA’s Board of Directors to ban smoking inside her building in order to afford her an equal opportunity to use and enjoy her dwelling.  While the POA Board installed a fresh air system on her HVAC ductwork and asked her smoking neighbor to use an air purifier, they did not enact a full smoking ban in her building.

Ms. Davis was not satisfied with this and filed suit against the POA alleging discrimination under the Fair Housing Act based on her disability of asthma.  The trial court held that Ms. Davis’ requested smoking ban was not a reasonable accommodation since it would “fundamentally change the existing policy…and [bar] residents from engaging in lawful activity within their own property.”[49]

The Court of Appeals affirmed the trial court’s decision and held that not only did Ms. Davis fail to prove her asthma qualified as a disability (since it was not severe enough to substantially limit a major life activity), they also held that her requested smoking ban was not a reasonable accommodation since it required a fundamental change in policy.[50] This request also interfered with the rights of third parties as such, was not reasonable accommodation the POA was required to make.

While this case dealt with an accommodation request to change a condo association’s rules to ban smoking in a condo building and not a POA’s swimming pool area, the principle remains the same:     accommodation requests which result in a fundamental changes in POA policy or ones that interfere with the rights of third parties are not required to be granted.

POAs should note that accommodation requests that could result in a direct threat to the health or safety of others need also not be granted.  Section 3604(f)(9) of the FHA provides that “[n]othing in this subsection requires that a dwelling be made available to an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.”  However, it is important to note that POAs should confirm that such a direct threat exists and should document all attempts to work with the requester prior to refusing to grant an accommodation request on this basis.

The importance of documenting attempts to work with individuals requesting accommodations was shown in the case of Scialabba v. Sierra Blanca Condo. No. One Ass’n.[51]  In this case, a condo association was sued for disability discrimination under the FHA for failure to grant an accommodation request to allow pool access to a disabled owner with a brain injury.  Because the POA believed the plaintiff was a threat to the safety of others at the pool, they denied his request to allow him pool access if accompanied by another adult.  The POA moved for summary judgment on this basis and the court  denied the motion stating there was a genuine issue of material fact since the POA must at least  “show they attempted to reasonably accommodate [his] disabilities” and “if the [POA] accommodation could eliminate the…threat, [then] defendants must provide that accommodation.”[52]  Thus, while a POA may ultimately be justified in denying an accommodation request in situations where there is a direct threat to  the health and safety of others, they should have documented proof of such threats and/or detailed evidence regarding attempts to work with the individual to accommodate their disability.

3.    Reasonable Modification Requests[53] to Facilities in a POA under the FHA and the Burden to Pay

Under the FHA, POAs must avoid discrimination and “permit, at the expense of the handicapped person, reasonable MODIFICATIONS of existing premises…if such modifications may be necessary to afford such person full enjoyment of the premises.”[54]  Thus, in the context of common area pools, POAs must allow disabled individuals to MODIFY POA pool facilities in order to gain full access to and enjoyment of the pool.

For example, if a POA does not have a pool lift to enable handicapped individuals to use and enjoy the pool, the POA must allow the individual to install one upon request.  However, installation of such items under an FHA modification request must be paid for by the applicant.  If a disabled resident asks a POA to modify its common area facilities to gain equal access to those facilities but the requested modification does not meet the POA’s aesthetic standards, any additional cost must be borne by the POA.[55] After installation, the POA will generally be responsible for ongoing maintenance, UNLESS the modification is used exclusively by the applicant. (such as a wheelchair ramp).

Further, please note that POAs must be careful to promptly respond promptly to FHA modification requests, generally within ten (10) days of receipt.[56]  The ramifications of failing to timely respond to a modification request under the FHA can be just as serious as not responding at all.  As previously stated, given the increasing number of accommodation and modification requests, POAs should consider adopting a Resolution that establishes procedures for handling such FHA requests.  While each request must be considered on a case-by-case basis, having such a policy in place would provide a solid foundation from which the POA could operate.

Lastly, as with FHA accommodation requests discussed above: 1) a POA is not automatically obligated to do any structural modifications unless and until it receives an actual request for a modification, and 2)  modification requests are not required to be in writing or requested directly by the disabled person.  They may be requested orally (although it is highly recommended that they be submitted in writing) and may be submitted by another individual on the disabled person’s behalf.

3) if the disability is not “readily observable” or known to the POA, the disability may be confirmed, and 4) the modification request should be reasonable and necessary and there should be an identifiable relationship, or nexus, between the requested modification to a POA’s facilities and the individual’s disability.

Ideally, the accommodation /modification request process should be an interactive one with each party expressing their needs and abilities while patiently working together toward an amicable solution.    However, POAs should keep in mind that if an agreement cannot be reached and a request is denied, the requestor may then file a Fair Housing Act complaint to challenge that decision.  For this reason, POAs should keep meticulous records showing the reasons a request was denied and preserve evidence in the event a complaint is filed.  For a brief summary of the complaint and enforcement process, please see Section G below. [57]

4.    Design and Construction Considerations for Private Pools in Certain POAs under the FHA

Under the FHA, multifamily housing such as condominiums and single-story townhomes built for first occupancy after March 13, 1991 must meet certain accessibility design and construction requirements in order to allow equal access to housing by disabled individuals.

The Fair Housing Act Design Manual (“FHADM”)[58] sets forth the required accessibility features for those entities.  Some of the pool requirements for condo and single-story townhome associations are listed below:

1. “When provided, a swimming pool must be located on an accessible pedestrian route that extends to the pool edge.
2. A door or gate accessing the pool must meet the FHA’s design and construction requirements and the deck around the pool must be on an accessible route.
3. If toilet rooms, showers, lockers or other amenities are provided at the pool, these also must be accessible and meet the requirements for accessible public and common use areas.”[59]

D.    Sex Discrimination
POAs cannot segregate pool swim times based on gender since this could amount to sex discrimination in violation of the FHA.  An example of a poorly drafted rule which could constitute sex discrimination along with an alternative rule is as follows:

• Poorly Drafted Rule: “Women may only use the pool on Tuesdays, Thursdays, and on weekends. Men may only use the pool on Mondays, Wednesdays, and Fridays and on weekends.”
• Alternative Rule: “The pool is open to all individuals during normal pool hours.”

An interesting case on this topic was recently decided by the Third Circuit Court of Appeals in April 2019 in Curto v. Country Place.[60]  In this case, a New Jersey condominium association which had membership comprised of 80% Orthodox Jews adopted rules segregating use of the community pool by “male only” and “female only” swim times.  By 2016, over two-thirds of all swimming hours throughout the week were sex-segregated. After three (3) owners were fined for violating this policy, they filed suit alleging sex discrimination under the Fair Housing Act and New Jersey state law. The district court granted the association’s motion for summary judgment, stating that “the gender-segregated schedule applied to men and women equally,” so there was no discrimination.  However, the Third Circuit Court of Appeals reversed, finding that the pool schedule DID discriminate against women in violation of the FHA. Although the schedule provided roughly the same amount of time for men and women, the court found that women had fewer time slots available and they were outside of conventional work hours.[61]  Thus, POAs should avoid setting rules which segregate use of a community pool by sex.

E.    Religious Discrimination
POAs must also be careful not to draft rules which could relate to an individual’s religion since that could constitute discrimination under the FHA.  For example, POAs should not prohibit residents from using the pool if they wear “full garb” swimsuits which are often used by females in the Muslim religion. While a POA may have a legitimate interest in regulating bulky pool clothing (which could get caught in drains and prevent a rapid exit from the pool), prohibiting such clothing outright may amount to religious discrimination under the FHA and could violate a individual’s right to religious freedom under the U.S. Constitution.

An example of a poorly drafted rule which could constitute religious discrimination along with an alternative rule is as follows:

• Poorly Drafted Rule: “Women may not wear full garb swimsuits which could get caught in pool drains.”
• Alternative Rule: “Proper swimming attire is required.”

F.    Senior Living Exemption from FHA for Housing for Older Persons
The FHA prohibits discrimination based on familial status, EXCEPT if the housing qualifies as “housing for older persons” as defined in Section 807(b) of the FHA which provides as follows:

(1)   Nor does any provision in this title regarding familial status apply with respect to housing for older persons.

(2)   As used in this section, “housing for older persons” means housing–

• Intended and operated for occupancy by persons 55 years of age or older, and–

(i)    at least 80 percent of the occupied units are occupied by at least one person who is 55 years of age or older;

1. ii) the housing facility or community publishes and adheres to policies and procedures that demonstrate the intent required under this subparagraph; and

(iii)  the housing facility or community complies with rules issued by the [HUD] Secretary for verification of occupancy.”[62]

Communities which qualify as housing for older persons (“HOPs”) are lawfully PERMITTED to discriminate against families with children since Congress intended the FHA to protect families with children while still “fully protect[ing] the rights of senior citizens who live in retirement communities, and allow[ing] those communities to exclude families with children if they so choose.”[63]  Thus, on its face, the senior living exception allows age qualified communities to limit and/or prohibit the use of their amenities by children as long as they satisfy the following requirements:

1. The housing community must be intended for occupancy by persons aged 55 or older;
2. At least 80% of the units must be occupied by a person age 55 or older; and
3. The housing community publishes and adheres policies and procedures that demonstrate its intent to qualify for the exemption and complies with HUD rules to verify occupancy.

Once a senior living POA qualifies as housing for older persons, the POA is exempt from the prohibition against discrimination based on familial status under the FHA. The POA may then restrict families with children from its pools and other facilities and otherwise treat family households differently than senior households.  However, they may not discriminate on the basis of any other protected class such as race, color, religion, sex, national origin, or disability.

Also, since HOPs members still have the right to invite guests, including children, to the community, it may be prudent to confirm that all pool rules meet the standards of reasonableness and are drafted to address conduct rather than age or status to avoid potential claims against the POA.

G.   FHA Enforcement and Consequences for FHA Violations
The FHA provides two avenues for enforcement on the federal level:  1) public enforcement through the Department of Housing and Urban Development (“HUD”) and the Attorney General’s office, and 2) private causes of action.  The penalties for violations of the Fair Housing Act can be severe and may vary depending on whether the case is processed via the courts, HUD, or elsewhere.  Such penalties may be over $21,000 for the first offense and over $105,000 for repeated offenses as discussed in subsection 3 below.

1.    Public Enforcement through HUD or Attorney General

a.     HUD Complaints.

Within one (1) year after an alleged discriminatory housing practice has occurred, an aggrieved person or the HUD Secretary may file a complaint with HUD who has authority to administer the FHA.[64]  Within ten (10) days, the HUD Secretary will notify the respondent of the alleged discriminatory housing practice and advise them of their rights and responsibilities under the FHA and send them a copy of the original complaint. The respondent then has 10 days to answer the complaint.  At that point, the HUD Secretary will investigate the alleged discriminatory housing practice and complete an investigation within 100 days after the filing of the complaint. [65]

During the period from when a complaint is filed, and ending when a formal charge or dismissal is issued, the Civil Rights Division will attempt to encourage conciliation between the parties in order to reach a satisfactory agreement.  If “reasonable cause exists to believe that a discriminatory housing practice has occurred or is about to occur,” a charge will be issued so further enforcement proceedings can commence.[66]

Within 20 days after a charge has been issued, the complainant, respondent, or any other aggrieved party may elect to proceed with a civil action before a District Court Judge in lieu of an administrative proceeding.[67]  If such an election is made, the case is referred to the Attorney General to file a civil action, which must be filed within 30 days.[68]

If the administrative hearing route is selected, the case will proceed through a prehearing discovery phase and then be presented before an Administrative Law Judge (“ALJ”) appointed by HUD at a hearing within 120 days after the charge is filed.[69] The ALJ is typically required to make a decision regarding whether a respondent has engaged in or is about to engage in a discriminatory housing practice within 60 days after the hearing.[70] As further described in in subsection 3 below, if the ALJ concludes a violation of the Fair Housing Act occurred, the following relief can be ordered:

• Compensation for actual damages (not punitive damages), including out-of-pocket expenses and emotional distress.
• Permanent injunctive relief, such as an order not to discriminate.
• Appropriate equitable relief.
• Payment of reasonable attorney’s fees if a private attorney was hired.
• Payment of a civil penalty to the federal government.

b.    Pattern or Practice Discrimination filed by the Attorney General

The Attorney General may also commence a civil action in any appropriate United States district court within 18 months of a discriminatory housing practice if they have reasonable cause to believe that a POA has engaged in a “pattern or practice of resistance to the full enjoyment of any of the rights granted by the FHA.”[71]  In such pattern or practice discrimination cases, the court may award preventive relief such as permanent or temporary injunctions, restraining orders, as well as other such relief as the court deems appropriate, including monetary damages to individuals AND “to vindicate the public interest, assess a civil penalty against the respondent—

• in an amount not exceeding $50,000, for a first violation; and
• in an amount not exceeding $100,000, for any subsequent violation.”[72]

Moreover, punitive damages can be awarded by a federal court (not by a HUD ALJ) for such discrimination, and the violator could be held responsible to compensate for actual damages, including humiliation, mental distress, and loss of housing opportunity.  In addition, the Association could be held responsible for the attorney fees and costs incurred by the Plaintiff.[73]

2.    Private Civil Action

Individuals who have been harmed by a discriminatory housing practice may file a private civil action under the FHA within two (2) years of the alleged discrimination,[74] regardless of whether they have filed a HUD complaint.[75]  In such cases, the statute of limitations for the civil case is tolled during any HUD administrative proceedings.[76] However, please note that if a hearing has commenced before an ALJ judge or if the parties enter into a conciliation agreement during a HUD investigation, the party may not file a civil action.[77]

3.    Penalties for FHA Violations

In a HUD complaint, the ALJ may issue an order for actual compensatory damages as well as appropriate injunctive and equitable relief.[78]  In addition, the ALJ may impose attorney’s fees[79] as well as civil penalties to be paid to the government in the amounts described below.[80]

In regard to maximum penalty amounts, HUD published its new inflation-adjusted civil penalty amounts on May 15, 2019 for individuals or entities that have been found to have violated the FHA. The new civil penalty amounts will apply to violations of the FHA that occurred on or after April 15, 2019.

Under these revised amounts, individuals and entities such as POAs that violate the FHA can be assessed maximum civil penalties by HUD as follows:

1. $21,039 for a first violation of the FHA,
2. $52,596 for those who have had a previous FHA violation the past 5 years, and
3. $105,194 for those who have violated the FHA two or more times in the previous 7 years. [81]

These civil penalty amounts are in addition to actual damages and attorney’s fees and costs that may be awarded to someone who has experienced housing discrimination.

Determining the size of an appropriate civil penalty requires consideration of five factors: (1) the nature and circumstances of the violation; (2) the goal of deterrence; (3) whether the respondent has previously been adjudged to have committed unlawful housing discrimination; (4) respondent’s financial resources; and (5) the degree of respondent’s culpability.[82]

In a civil court action, if the court finds that a discriminatory housing practice has occurred, the court may award the plaintiff compensatory AND punitive damages, and may grant other relief such as a permanent or temporary injunction, temporary restraining order, order enjoining the defendant from engaging in discriminatory practices, or ordering affirmative action as may be appropriate.[83] The court may also, in its discretion, allow the prevailing party reasonable attorney’s fee and costs.[84]

4.    Texas Enforcement of FHA Violations

Please note that if a fair housing discrimination complaint arises in a jurisdiction of a state or local agency (such as Texas) that has been certified by the HUD Secretary as a “substantially equivalent” enforcement agency, HUD must refer the complaint to the state or local agency.[85]  Since HUD has certified the Texas Fair Housing Act to provide rights and remedies substantially equivalent to those under the federal FHA,[86] most fair housing complaints filed against POAs in Texas are referred to and investigated by the Texas Workforce Commission which administers the Texas Fair Housing Act.[87]  (Please see Section III below.)

H.   FHA Conclusion
Special care must be taken when drafting POA pool rules in order to avoid discrimination claims under the FHA since the consequences of such violations can be harsh.  Boards should draft their pool rules to address conduct rather than the age or status of the individual and such rules should provide the least restrictive means to accomplish a POA’s compelling business reason.  Again, consulting with legal counsel to review any proposed or existing POA pool rules is advised.

III.  Texas Fair Housing Act and POA Pools

The Texas Fair Housing Act (“Texas FHA”), codified at Tex. Prop. Code § 301.001 et. seq., is substantially similar to the Federal Fair Housing Act, and is administered by the Texas Workforce Commission.[88]  The Texas FHA prohibits POAs from discriminating against individuals in providing services or facilities in connection with a rental of a dwelling (such as community pools) due to race, color, religion, sex, national origin, familial status, or disability.[89]

The Texas Workforce Commission must begin work on the complaint within thirty (30) days of HUD’s referral or HUD can take the fair housing complaint back.[90] The Texas FHA provisions regarding investigation and resolution of a fair housing complaint are substantially equivalent to the federal FHA discussed above.

Exemptions from the Texas FHA’s prohibited discriminations also generally track those in the federal FHA, so housing specifically designed and operated to “assist elderly persons” is exempted from the prohibitions concerning discrimination on the basis of familial status.[91]

Community swimming pools in Texas subdivision and condominium POAs are also subject to several statutory safety standards as well as the Texas Health and Safety Code [92] and the Texas Department of State Health Services Pool Rules.[93]  A brief sampling of these rules as they apply to POAs are attached hereto as Appendix 6 along with a full copy of the Texas Department of State Health Services Pool Rules.

IV.  Americans with DisabilitIES Act

A.    In General
The Americans with Disabilities Act of 1990 (“ADA”) is codified in 42 U.S.C. 12101, et. seq. and provides that all places of “public accommodation” in governmental, public, and private facilities (such as POAs, if applicable) must comply with specific accessibility standards in order to accommodate disabled individuals.^[94]   

Unlike the FHA which applies to ALL Texas POAs, the ADA only applies to certain POAs which allow use of their facilities by the general public and are thus, considered places of “public accommodation” as discussed below.

B.    Places of Public Accommodation
Fortunately, most POAs are private entities and are not open to the public, so they will NOT be subject to the ADA, UNLESS the POA is operating what can be considered a place of “public accommodation.”[95] A POA pool could potentially be considered a place of public accommodation if they  “the operations of such entities affects commerce” and is a “place of exercise or recreation” per Section 12181(7)(I) or (L) of the ADA.[96]  Thus, if a POA holds out its facilities for use by members of the general public and not solely for use by the POA’s members and affects commerce, it could potentially become obligated to comply with the requirements of the ADA.

The more the general public has access to a POA pool and especially if there is a charge for it, the more likely its operation “affects commerce” and is thus a “public accommodation.”  To assist in making this determination, the ADA has published a Technical Assistance Manual Covering Public Accommodations and Commercial Facilities which provides some helpful illustrations regarding what could be considered a “public accommodation” in a POA context.^[97]

For example, if a POA has a longstanding policy of restricting its pool to owners, residents, and their guests, then the pool would NOT be considered a place of public accommodation.  As such, it would be considered private and the POA would not be required to comply with the ADA’s pool accessibility standards. If, on the other hand, the POA sells pool memberships to the public, the POA’s use of the swimming pool “affects commerce,” so the pool would become a place of “public accommodation,” and the POA must comply with the ADA’s pool accessibility standards.

The water gets a bit murky when a POA hosts a swim team event with “outsiders.”  Such swim meets could arguably be considered private since only “invited guests” attend the event and the general public is not invited.  However, an argument could be made that swim meets are “public” events since the individuals attending the swim meet (such as swimmers, coaches, family members and other spectators) are not ALL POA members or even known by members of the POA. The “public” event argument becomes even stronger if attendees are charged a fee.^[98]  If a visiting swim team and their guests are invited to the pool for the swim meet against the home swim team solely composed of POA members’ children, then there is a convincing argument that such action alone does not make the pool a place of “public accommodation” under the ADA.  However, if a POA’s swim team has “outsiders” on it, this could potentially thrust the POA pool into the “public accommodation” arena because the pool is being used by non-POA members.

If a POA Board has questions regarding whether it is subject to the ADA, they should have an experienced POA attorney carefully review the POA’s policies regarding pool use, specifically in regard to who is allowed to use the pool in order to determine whether the pool may be considered a “public accommodation.”

While these situations can be rare, POAs have been subject to ADA requirements under the following circumstances:

• if a POA allows members of the general public to buy memberships or passes to the community pool;
• if a POA allows non-members to use its pool in exchange for some form of compensation, such as if a POA rents out its swimming pool for birthday parties to individuals who are not residents in the community, etc.;

(2    if a POA allows schools, church groups or clubs who are not POA members to use POA facilities on a regular basis;

(3)   if a POA maintains a rental office on the property that receives regular visits from the general public; or

(4)   if a POA’s community pool is used for swim meets with team members from other communities.  To make a determination regarding swim teams, the following questions should also be asked:  Is there a fee involved?  Are POA swim meets open to everyone, including the public at large, or only to swim team members and the opposing team (including each of their guests and families)?  Are there any non-POA members on the POA’s swim team?

Again, any POA considering or currently allowing such activities should seek legal advice to confirm whether they are subject to the ADA.  If they are, the POA could choose to immediately cease all activities.  If the POA chooses to continue those activities, they should carefully inspect their facilities to ensure compliance with the ADA.  If any facilities are found to be noncompliant, they should work swiftly to implement the ADA’s accessibility standards.  Failure to do so could lead to ADA discrimination claims which could far outweigh any costs related to meeting those accessibility standards.

In the event a POA pool is considered a place of “public accommodation,” the pool must be brought into compliance with ADA’s accessibility standards as set forth in the ADA Accessibility Guidelines.^[99] Some examples of those requirements are as follows:

1. Pools with a perimeter of less than 300 linear feet – the ADA Standards require either the construction of a sloped entry into the pool with handrails, OR the installation of a mechanized pool lift with which a disabled person may lower himself into the pool and lift himself out of it.
2. Pools with a perimeter of greater than 300 feet – the POA must have two (2) means of entry. One of them must be a sloped entry or mechanized lift. The other may be one of those two means OR a transfer wall with grab bar, transfer system with steps, or special accessible pool stairs, each of which has detailed specifications in the ADA Standards. These requirements apply to wading pools and spas as well as swimming pools.

As stated, if a POA limits use of its pool exclusively to its members and their guests, then the pool would not fall under the requirements of the ADA. However, if a POA opens its common area facilities to the public as listed above, then it may be operating a place of public accommodation and the POA would be immediately required to comply with all ADA accessibility standards.

There is one exception to these compliance standards: the standards must be met only if they are “readily achievable.” The term, “readily achievable” is defined by the U.S. Department of Justice as being “easily accomplished and able to be carried out without much difficulty or expense.”[100] In analyzing whether compliance is “readily achievable,” many factors are considered including the cost of the modifications, feasibility, and financial resources of the company.  If compliance is not readily achievable, it’s possible the pool may not need to become ADA compliant but this issue should be reviewed by the POA’s attorney.

C.    Reasonable Modifications under the ADA and Burden to Pay
Under the ADA, a POA obligated to comply with the ADA will be fully liable for the cost of structural modifications to common areas such as pool lifts, etc. (As discussed above, under the FHA the applicant is typically responsible for such structural modifications.) Thus, for example, if a POA rents out its swimming pool for public functions such as birthday parties or swim meets for nonresidents, etc., the POA may be subject to the ADA and must pay for ADA compliant modifications such as pool lifts, since the facility could be deemed to be a public accommodation.

D.    Enforcement
ADA enforcement is assigned to the United States Department of Justice Civil Rights Division (“DOJ”) who may file a lawsuit for ADA violations in federal court.  If the DOJ prevails, the court may order compensatory damages along with civil penalties to remedy discrimination as described below.  Per the DOJ’s Final Rules which adjusted the civil monetary penalties for inflation on March 28, 2014, the maximum penalty for noncompliance with the ADA can range from up to $75,000.00 for the first violation and up to $150,000.00 for subsequent violations.^[101] A private citizen may also file a civil lawsuit for ADA violations.

V.    Texas Architectural Barriers Act

The Texas Architectural Barriers Act (“TABA”) is codified in Texas Government Code Section 469, et. seq. and is similar to the ADA in that it also sets forth accessibility standards for individuals for disabilities. TABA applies to private facilities such as POAs if they are “defined as ‘public accommodations’ by Section 301 of the Americans with Disabilities Act of 1990 (42 U.S.C. Section 12181), and its subsequent amendments AND [are] constructed, renovated, or modified on or after January 1, 1992.”[102]

As discussed above, fortunately most POAs are not open to the public, so they will NOT be subject to TABA, UNLESS the POA is operating what may be considered a place of “public accommodation.”[103]

In the event a POA pool is considered a place of “public accommodation,” the pool must be brought into compliance with TABA’s accessibility standards as set forth in the Architectural Barriers Texas Accessibility Standards (“TAS”).[104]  Some examples of those requirements for POA swimming pools are as follows:

1009. At least “two accessible means of entry shall be provided for swimming pools. Accessible means of entry shall be swimming pool lifts…sloped entries… transfer walls…transfer systems…and pool stairs…. At least one accessible means of entry provided shall comply with 1009.2 or 1009.3.”[105]
1010. However, “Where a swimming pool has less than 300 linear feet (91 m) of swimming pool wall, no more than one accessible means of entry shall be required provided that the accessible means of entry is a swimming pool lift…or sloped entry.”[106]
1011. At least one accessible means of entry shall be provided for wading pools and spas.[107]

VI.  Recent Developments

Interestingly, Williamson County near Austin recently passed an ordinance which categorizes private POA pools as “semi-public” and requires them to participate in a new safety program that only public pools are ordinarily obligated to meet.[108]  The fact that a governmental entity unilaterally categorized a private POA pool as a “semi-public” pool (which is not a defined term under the FHA or ADA) is an example of how quickly new developments in this area of the law can occur.

The question has arisen whether a POA’s voluntary compliance with a local ordinance that is intended for public and semi-public pools would somehow operate to waive a POA’s right to extract itself from complying with the ADA.[109]  While this area of the law is fluid, an argument can be made that the short answer to this question is no if the Board documents its contention in the meeting minutes that it is not a “public or semi-public” pool,” but it has voted to voluntarily comply with this ordinance even though it believes its pool is NOT a place of public accommodation.  As such, it should not be subject to ADA or TABA.

By documenting the POA’s contention that its pool is not “public” but that it has voluntarily chosen to comply with this ordinance (perhaps in the interest of being a good corporate citizen), may help to alleviate the POA’s risk of appearing to admit that it falls into the public pool category which could thereby subject it to ADA or TABA.

VII. Key Differences Between the   FHA and ADA

The FHA and ADA are both intended to prevent discrimination, but there are major differences between the two laws which impact how they affect POAs.  Some of these are as follows:

1. The FHA Applies to all POAs but ADA Applies Only to Certain POAs – The FHA applies to ALL private POAs but the ADA typically applies only to places of public accommodation. Thus, unless a POA takes specific action to open itself up to the public, the ADA may not apply to those POAs.
2. The ADA Protects Only Those with Disabilities but the FHA Protects 7 Classes of Individuals – The ADA only prohibits discrimination against disabled individuals, while the FHA prohibits discrimination against seven (7) categories of individuals as follows: race, color, religion, sex, national origin, familial status and disability.
3. The FHA is Reactive but the ADA is Proactive – The FHA is a reactive statute and only requires POAs to take action unless it receives a modification or accommodation request from a resident or owner. On the other hand, the ADA is a proactive statute that requires POAs subject to the ADA to add accessibility features as long as they are “readily achievable.”  A POA cannot wait to receive a request from a disabled person before it has the obligation under the ADA to add accessibility features to its areas of public accommodation.
4. The FHA Allows Greater Animal Access than the ADA.  If a disability accommodation is requested under the FHA, POAs are required to modify their rules to allow BOTH trained service animals and emotional support animals to POA common areas (with additional requirements for “unique” animals that do not typically live inside a home). Emotional support animals are not required to have special training and can include dogs, cats, rabbits and various other animals.  On the other hand, the ADA is far more restrictive in the animals it allows to have access to public accommodations.  The ADA only requires POAs with public accommodations to allow the use of service animals by disabled persons and the definition of “service animals” typically only includes dogs that have been specially trained to provide services to a disabled person and miniature horses which have been house broken and meet certain other requirements.  Emotional support animals do not typically qualify for access to places of public accommodation under the ADA.

VIII.  Summary of Drafting Tips for POAs and Managers

To assist in drafting effective pool rules, the following is a quick summary of suggestions which may help POA Boards, their managers, and attorneys to avoid unnecessary landmines.

1. Target behaviors, not classes of people. Identify safety concerns and the conduct the Board specifically desires to prohibit and draft rules which clearly and directly address that unsafe or disruptive conduct. For example, if the Board is concerned about unreasonable and disruptive noise around the pool, don’t draft a rule which prohibits children under the age of 16 from using the pool (even though they may be the primary reason such a rule is necessary). Instead, draft a rule which prohibits unruly behavior such as running, dunking, roughhousing, and horseplay by all individuals.
2. Avoid using “red-flag” words such as “children,” “adults,” “parents” or “____ years old” in any pool rules.
3. Make sure all pool rules serve a legitimate, necessary, and non-discriminatory compelling business necessity which represents the least restrictive means to accomplish that purpose.
4. Link pool rules to objective criteria such as demonstrated proficiency in swimming, not to age.
5. Make sure the pool rules are neutral in their intent and even-handed in their impact.
6. Be reasonable and use good common sense.
7. Add a savings clause to the rules help avoid unintended violations of statutory law. One example is as follows: “It is not the intent of this policy to discriminate against any individual subject to protection under any federal or state law.  If any provision of this policy is found to be in violation of any law, then that provision shall be considered to be null and void and the remainder of these rules shall remain intact and enforceable.”
8. Finally, as with all POA rules and regulations, pool rules should be put in writing, distributed to the membership, posted on the POA’s website, and enforced in a consistent and non-discriminatory manner.

A sample Resolution Regarding Pool Rules for POAs is attached hereto as Appendix 9 for reference purposes.

IX. Conclusion

FHA and ADA requirements can create numerous legal landmines for POAs in regard to swimming pool rules.  While no one seeks to become a POA board member in order to discriminate against their neighbors, more and more POAs are facing discrimination claims due to poorly drafted, but seemingly innocuous, pool rules. Since such rules can quickly land a POA in hot water, it is vitally important that board members, their managers, and attorneys understand these civil rights laws and how to implement them properly.

The two major federal civil rights laws which apply to POAs are the Fair Housing Act (“FHA”) and the Americans with Disabilities Act (“ADA”).  The FHA applies to ALL Texas POAs and the ADA may or may not apply to POAs, depending on whether their facilities are open to the general public and are considered places of public accommodation.

The FHA prohibits POAs from creating pool rules which discriminate against individuals in the following seven (7) protected classes:  race, color, religion, sex, national origin, familial status, and disability, with the last two categories being of particular importance.  POAs must also comply with the pool accessibility requirements of the ADA for individuals with disabilities if their POA pool is open to the general public and is a public accommodation.  Texas also has similar versions of the FHA and ADA and there are several other state laws regarding swimming pools that POA Boards must comply with as well.

It is imperative that POA Board members remain keenly aware of these laws and consult their attorney prior to imposing pool rules.  It is also important to realize that this area of the law is continually changing, so POA Boards and their counsel must remain diligent to stay abreast of any changes to ensure compliance with all statutory obligations.

Not complying with these laws could have serious consequences and result in thousands of dollars in fines and penalties as well as valuable goodwill from its members. Wise application of these laws will result in well drafted rules which will allow all POA members to enjoy their community pool for years to come.

Table of Appendixes

Appendix 1 – Fair Housing Act, 42 U.S.C. §§ 3601 – 3619.

Appendix 2 – Fair Housing Amendments Act of 1988, Public Law 100-430.

Appendix 3 – Joint Statement of HUD and DOJ regarding Reasonable Accommodations under the Fair Housing Act, May 17, 2004.

Appendix 4 – HUD Rules and Regulations with FHA Penalties Adjusted for Inflation, Vol. 84, No. 51 Federal Register, pg. 9454, March 15, 2019.

Appendix 5 – Texas Fair Housing Act, Tex. Prop. Code § 301, et. seq.

Appendix 6 – Sample of Texas Department of State Health Services Rules Regarding Pools, adopted July 1, 2004 and effective Sept. 1, 2004.

Appendix 7 – Americans with Disabilities Act of 1990, including changes added by the ADA Amendments Act of 2008, Pub. L. 101-336, 26 July 1990. 104 Stat. 328, 42 U.S.C. 12101, et. seq.

Appendix 8 – Department of Justice, Final Rule Regarding Civil Monetary Penalties with Inflation Adjustment under Title III of the ADA, March 28, 2014.

Appendix 9 – Sample Resolution Regarding Pool Rules for POAs.

[1] Throughout this article, the term “POA” shall refer to both subdivision property owners associations and condominium property owners associations unless otherwise indicated.

[2] 42 U.S.C. § 3604(a).  A copy of the Fair Housing Act  42 U.S.C. §§ 3601-3619 (1968) (Title VIII of the Civil Rights Act of 1968) is attached hereto as Appendix 1.

[3]  Fair Housing Amendments Act of 1988, Pub. L. No. 100-430, 102 Stat. 1619 (1988).  A copy of the Fair Housing Amendments Act (“FHAA”) of 1988 is attached hereto as Appendix 2.  (For purposes of this article, the term “FHA” shall refer to the Fair Housing Act as amended by the Fair Housing Amendments Act of 1988.)

[4] 42 U.S.C. § 3604(b).

[5] The Department of Justice and Texas Workforce Commission’s interpretive regulations expand nondiscrimination beyond dwellings to “public and common areas.” See 24 C.F.R. § 100.204(a) and 40 Tex. Admin. Code § 819.134.

[6] HUD Legal Opinion: GME-0012, September 29, 1992, p 1.

[7] Id.

[8] United States v. Plaza Mobile Estates, 273 F. Supp. 2d 1084 at 1091(C.D. Cal. 2003).

[9]  The examples provided herein are for illustrative purposes only. Use of this information is at your own risk and the author assumes no liability or responsibility for damages incurred in connection with use of these materials.

[10] Llanos v. Estate of Coehlo, 24 F. Supp. 2d 1052 at 1060 (E.D. Cal. 1998).

[11] Llanos at 1060, citing Pfaff v. U.S. Dep’t of Hous. & Urban Dev., 88 F.3d 739, (9th Cir. 1996) (defendant’s reasons for implementing facially discriminatory rules must be reviewed under a reasonableness standard); see also U.S. v. M. Westland Co., at 15,941.2  (citing ). (“After a plaintiff establishes a prima facie case, a presumption of illegality arises and defendant has the burden of articulating a legitimate, non-discriminatory justification for the challenged policy.”)

[12] Id. at 1061.

[13] Landesman v. Keys Condo. Owners Ass’n, No. C 04-2685 PJH, 2004 U.S. Dist. LEXIS 21746 at 12 (N.D. Cal. Oct. 19, 2004).

[14]  Id. at 12.

[15]  Id. at 14.

[16]United States v. Plaza Mobile Estates, 273 F. Supp. 2d 1084 (C.D. Cal. 2003). 

[17] Id. at 1088. 

[18] Id. at 1092.

[19] Id. at 1093.

[20] Iniestra v. Cliff Warren Invs., Inc., 886 F. Supp. 2d 1161 at 1164 (C.D. Cal. 2012).

[21] Id. at 1166.

[22] Id.

[23] Id.

[24]  United States v. Plaza Mobile Estates, 273 F. Supp. 2d 1084 at 1088. (C.D. Cal. 2003).

[25] Id. at 1092.

[26] HUD v. Paradise Gardens, Section II, Homeowners Association, et al., hudalj 04-900321-1, hudalj 04-90-0726-1, at 16, Decided October 15, 1992.

[27] Id. at 16.

[28] Id. at 17.

[29] Id.

[30] Id. at 17-18.

[31] Id. at 29.

[32]  Leonard v. Seaboard Arbor Management Services, Inc., (HUD ALJ 04-91-0931).

[33] Note:  The FHA uses the term “handicap” instead of “disability,” but both terms have the same legal meaning. See Bragdon v. Abbott, 524 U.S. 624, 631 (1998) (noting that definition of “disability” in the Americans with Disabilities Act is drawn almost verbatim “from the definition of ‘handicap’ contained in the Fair Housing Amendments Act of 1988”). Throughout this article, the more generally accepted term of “disability” is used.

[34] 42 U.S.C. §  3604(f)(2).

[35] 42 U.S.C. §  3602(h).

[36] 42 U.S.C. § 3604(f)(3)(B)

[37] Please see Joint Statement of HUD and DOJ regarding Reasonable Accommodations under the Fair Housing Act, May 17, 2004 (“Joint Statement”), attached hereto as Appendix 3.

[38] Please see HUD’s FHEO Notice #2020-01, issued on  January 28, 2020 (“2020 HUD Guidance Document”) at: https://www.hud.gov/sites/dfiles/PA/documents/HUDAsstAnimalNC1-28-2020.pdf. at pg. 7.

[39] Id. at pg. 7.

[40] 2020 HUD Guidance Document at pg. 9. Please also see Joint Statement, Q & A #18 (May 17, 2004), included herein as Appendix 3.

[41] 2020 HUD Guidance Document at pg. 10.

[42] Id. at pg. 11.

[43] Id. at pg. 17.

[44] Peabody Properties, Inc. v. Frank Sherman, 638 N.E.2d 906.

[45] Please see Joint Statement, Q & A #7 (May 17, 2004), included herein as Appendix 3.

[46] Please see HUD’s FHEO Notice #2020-01, issued on  January 28, 2020 (“2020 HUD Guidance Document”) at: https://www.hud.gov/sites/dfiles/PA/documents/HUDAsstAnimalNC1-28-2020.pdf.  Please also see the ADA Requirements for Service Animals at:

https://www.ada.gov/service_animals_2010.htm and HUD

FHEO Notice: FHEO-2013-01  Issued: April 25, 2013 at

https://www.hud.gov/sites/dfiles/FHEO/documents/19ServiceAnimalNoticeFHEO_508.pdf.

[47] 2020 HUD Guidance Document, pg. 12.

[48] 2020 HUD Guidance Document, pg. 13 and see also Joint Statement, Q & A #15 (May 17, 2004), included herein as Appendix 3.

[49] Davis v. Echo Valley Condo. Ass’n, 349 F. Supp.3d 645, 659 (E.D. Mich. 2018).

[50] Id. at 659.

[51] Scialabba v. Sierra Blanca Condo. No. One Ass’n., No. 00 C 5344, 2001 U.S. Dist. LEXIS 10054 at 4 (N.D. Ill. July 11, 2001).

[52] Scialabba at 21

[53]Please note the distinction between an ACCOMMODATION request and a MODIFICATION request:  a request to change a POA’s facilities is a “modification” request and a request to change a POA’s rules is an “accommodation” request.

[54] 42 U.S.C. § 3604(f)(3)(A).

[55] In contrast, under the ADA POAs are required to pay for ALL reasonable modifications to common area facilities as will be discussed later in this article.

[56] 2020 HUD Guidance Document, pg. 13 and see also Joint Statement, Q & A #15 (May 17, 2004).

[57] Please note that a detailed examination of the process to file and respond to a Fair Housing Act complaint is outside the scope of this paper.  However, general information is set forth below and more information may be found at:

https://www.hud.gov/program_offices/fair_housing_equal_opp/complaint-process.

[58] Fair Housing Act Design Manual, U.S. Department of Housing and Urban Development, Office of Fair Housing and Equal Opportunity, August 1996 and updated in 1998.

[59] See FHADM Guidelines, Requirement 2, 56 Fed. Reg. at 9,504-05.

[60] Curto v. Country Place, No. 18-1212 (U.S. Court of Appeals 3d Cir. April 22, 2019).

[61] Id. at 1212.

[62] 42 U.S.C. § 807(b).

[63] 134 Cong. Rec. H4603 at *H4607 (daily ed.  June 22, 1988).

[64] 42 U.S.C. § 3610(a)(1)(A).

[65] 42 U.S.C. § 3610(a)(1)(B).

[66] 42 U.S.C. § 3610(g).

[67] 42 U.S.C. § 3612(a).

[68] 42 U.S.C. § 3612(o)(1).

[69] 42 U.S.C. § 3612(g)(1).

[70] 42 U.S.C. § 3612(g)(2).

[71] 42 U.S.C. § 3614(a).

[72] 42 U.S.C. § 3614(d)(1).

[73] 42 U.S.C. § 3614(d)(2).

[74] 42 U.S.C. § 3613(a)(1)(A). 

[75] 42 U.S.C. § 3613(a)(2).

[76] 42 U.S.C. § 3613(a)(1)(B). 

[77] 42 U.S.C. § 3613(a)(3) and (a)(2). 

[78] 42 U.S.C. § 3612(g)(3).

[79] 42 U.S.C. § 3612(p).

[80] 42 U.S.C. § 3612(g)(3).

[81] A copy of the March 15, 2019 HUD Rules and Regulations with FHA Penalties Adjusted for Inflation, published at Vol. 84, No. 51 of the Federal Register on pg. 9454 is attached hereto as Appendix 4.

[82] See H.R. REP. NO. 711, 100th Cong., 2d Sess., at 37 (1988).

[83] 42 U.S.C. § 3613(c)(1).

[84] 42 U.S.C. § 3613(c)(2).

[85] 24 C.F.R. § 103.100.

[86] Public Notices of Substantial Equivalency of the Fair Housing  Laws of Various States and Localities, 61 Fed. Reg. 53380 (October 11, 1996).

[87] Tex. Prop. Code § 301.0015.

[88] Tex. Prop. Code § 301.0015.

[89] Tex. Prop. Code § 301.021(b) and § 301.025(a). A copy of the Texas Fair Housing Act is attached hereto as Appendix 5. See Tex. Prop. Code § 301.003(6) for definition of “disability” and § 301.025(c) for definition of discrimination” due to disability.

[90] 24 C.F.R. § 103.100.

[91] Tex. Prop. Code § 301.043

[92] Tex. Health & Safety Code §§ 757.001–757.017.  Tex. Health & Safety Code § 757.001(11) defines a POA as “an association of property owners for a residential subdivision, condominium, cooperative, town home project, or other project involving residential dwellings.”

[93] Texas Department of State Health Services Rules adopted July 1, 2004, to be effective Sept. 1, 2004—except that Jan. 1, 2005 is the effective date under Section 265.290(e) for retrofitting suction outlets in pre-10-1-99 pools and spas with single main drains. While a full discussion of these rules is beyond the scope of this article, a copy of them is attached as Appendix 6.

[94]Americans with Disabilities Act of 1990, Pub. L. 101-336, 26 July 1990. 104 Stat. 328, 42 U.S.C. 12101, et. seq, [Section 301 – Public Accommodations and Services Operated by Private Entities – Title III.]  A copy of the Americans with Disabilities Act which includes changes made by the ADA Amendments Act of 2008 is attached hereto as Appendix 7.  Please see Subchapter III in regard to Public Accommodations and Services Operated by Private Entities on pages 41-55 which applies to certain POAs.

[95] The ADA defines a “Place of Public Accommodation” as a facility operated by a private entity, whose operations affect commerce and falls within one or more of twelve categories listed under § 12181 [such as subsection (7)(I) or (7)(L)] of the Americans with Disabilities Act. 42 U.S.C. § 12181.

[96] 42 U.S.C. § 12181(7) (L).  See also § 36.104(12) of the Title III ADA Regulations published September 15, 2010.

[97] ADA Title III Technical Assistance Manual (“ADA TAM”), Section III-4.4200, Department of Justice.

[98] See Carolyn v. Orange Park Community POA, 177 Cal. App. 4th 1090 (2009).

[99] 2010 ADA Standards for Accessible Design, Revised Regulations for Title II and III in the Code of Federal Regulations, September 15, 2010 [“ADA Accessibility Guidelines (ADAAG)”].

[100] Title III-4.4200.

[101] Department of Justice, Final Rule Regarding Civil Monetary Penalties Inflation Adjustment under Title III.  March 28, 2014.  A copy of this Final Rule is attached hereto as Appendix 8. Previous maximum civil penalty amounts were $55,000 for the first violation and $110,000 for any subsequent violation.

[102] Tex. Gov’t Code § 469.003(a)(4).

[103] Please see discussion in Section IV. B. above in regard to what qualifies a POA to be a place of “public accommodation.”

[104] Architectural Barriers Texas Accessibility Standards (TAS), §§  201-243.

[105] TAS § 242.2

[106] TAS § 242.2, Exception 1.

[107] TAS § 242.3 and 252.4.

[108] Please see Williamson County and Cities Health District Order No. 2019-001 at:

http://www.wcchd.org/services/environmental/docs/2019%20Public%20Swimming%20Pool%20Order%20(V12)%20082819.pdf

[109] The author wishes to thank Texas attorney Sharon Reuler for passing on this recent development and sharing her insight in posing this question.