SWIMMING POOL RULES
QUESTION: Looking ahead to opening our pool for the summer -- and hoping to avoid the perennial complaints about children who misbehave in it -- our board is considering rules that would establish adult-only swim times, create a ‘lap’ lane’ open only to adults and bar children who are not yet potty-trained. Will these rules accomplish our goal?
ANSWER: Only if your goal is to be sued for violating federal and state Fair Housing laws, which prohibit discrimination against children.
That means children must have equal access to the pool and be able to enjoy it fully on the same terms and to the same extent as adults. All of the rules you are considering violate the law because they treat children differently:
You can’t create adults-only swim times. If the pool is open, children must be able to use it.
You can designate a lane for lap swimming, but it must be open to children, there must be an equal amount of space available for general swimming, and the space available for children who can’t swim laps must be no more crowded nor less desirable as a result.
You can’t bar children who are not potty-trained, nor can you require swim diapers for them. What you can do is require swim diapers or their equivalent for swimmers who are incontinent. The goal is having uniform rules that apply to all ages.
When crafting swimming pool rules – or any rules for that matter -- you can reasonably assume that any provision specifying that “children must” or “children can’t” will by definition violate the anti-discrimination laws.
The rules you establish should be based on objective criteria and serve a non-discriminatory purpose. Ideally, they should not mention children at all.
For example, instead of requiring that children under a specified age be accompanied by an adult, you might adopt a rule requiring unsupervised swimmers to demonstrate proficiency. A rule prohibiting children from playing with toys in the pool wouldn’t pass muster, but a rule prohibiting all personal property with the exception of flotation devices in the pool would be okay, because it would apply to everyone. You could establish a rule barring pets in the pool area – although you would have to waive it for those requiring service or emotional support animals, which are not considered pets under the law.
Rules prohibiting running, rough-housing, diving in shallow waters and barring alcohol and glass at poolside are all reasonable, necessary and nondiscriminatory. They are also examples of rules your insurance company is likely to require – something the board should keep in mind when adopting new rules and reviewing existing ones.
The board should broaden its assessment of pool rules to include not just those the board creates but the rules and standards with which the association’s pool must comply. The Massachusetts Sanitary Code requirements include, among others, that pools must be:
Managed by a “certified pool operator”;
Enclosed by a six-foot-high fence with self-latching gates;
Equipped with safety tools at poolside; and (in most cases)
Inspected annually before opening for the season.
Although the state Sanitary Code doesn’t require lifeguards, many local health departments do. If your pool doesn’t have a lifeguard, you should post a sign to that effect, warning that swimmers swim at their own risk and cautioning against swimming alone.
Your pool rules should be sufficiently comprehensive and detailed to address health and safety concerns and liability risks, but no more restrictive than necessary to achieve those goals. You should have the association’s attorney and its insurance agent review your pool rules periodically because statutes, standards and best practices can change. Health, safety and risk management are all essential. But remember: You also want residents to enjoy the pool. That’s the reason you have it.
If you have questions about rules for swimming pools or any other association rules, please contact your MEEB attorney directly or reach us at law@meeb.com.