By Timothy M. Moeller, Esq. and Bujar Ahmeti, Esq., Moeller Graf, P.C.
As the snow begins to melt and people trade their ski poles for sunblock, community associations across Colorado will begin to turn their attention to opening their swimming pools. While everyone loves to have fun in the sun, maintaining and operating a swimming pool may present legal challenges for community managers and boards of directors. While some issues are unique, there are some questions that arise fairly regularly. Below you will find what a typical conversation may look like.
A local swim league approached the association and asked if it could use the pool to host its swim meets. Are there any legal issues of which we should be aware?
Typically, community association pools are private, and as such, are not subject to Title III of the Americans with Disabilities Act (“ADA”). Allowing a local swim league (and its supporters) to use the association’s swimming pool may transform the swimming pool from a “recreational facility” to a place of “public accommodation.” As a result, the association would have to ensure the swimming pool was compliant with Title III of the ADA. This was confirmed by the Department of Justice in a published Q&A regarding ADA accessibility where the DOJ stated that if a swimming pool/club located in a residential community is made available to the public for rental or use, then it is covered under Title III of the ADA. A pool categorized as a “public accommodation” would have to meet the ADA Standard for Accessible Design, which provides:
- If the pool is less than 300 lineal feet, then it must have at least one accessible means of entry, which must either be a chair lift or sloped entry.
- If the pool is more than 300 lineal fee, then it must also have a second means of access, which can either be another lift or ramp, or it can also be a transfer wall, a transfer system, or pool stairs.
- Clear deck space must be designated for easy access to the pool and easy transfer from a wheelchair or mobility device.
We have concerns about keeping the pool sanitary for all of our residents if we allow children in diapers to use the pool. Can we implement a rule that prohibits any person under the age of 4 from using the pool?
Even rules with the best intentions can find disfavor with the law. The Fair Housing Amendments Act (“FHAA”) prohibits discrimination in housing on the basis of race, color, religion, sex, national origin, familial status and disability. Familial status is defined, in pertinent part, as “one or more individuals (who have not attained the age of 18 years) being domiciled with a parent or another person having legal custody of such individual or individuals.” Some ask, “How can we be discriminating against families with children if we will allow children who are at least 5 years of age to use the pool?” When reviewing a rule or regulation for a potential fair housing discrimination claim, a reviewing court will look to whether there is a less restrictive measure to accomplish the association’s objective. Here, instead of enacting a rule adopting a complete ban on children under a certain age for sanitary reasons, an association is better served to promulgate a rule requiring an incontinent person or child who is not fully toilet trained to wear appropriate swim diapers or other appropriate waterproof sealing undergarments when entering the pool.
A homeowner who is disabled attended the board meeting last week and requested the pool be modified by installing a chair lift so that the homeowner can use the swimming pool. Does the board have to allow installation of the chair lift, and if so, who pays for it?
Under the FHAA, a community association may not discriminate against anyone with a disability by treating said person less favorably than those that are not disabled. The association must permit disabled persons to make reasonable modifications to existing dwellings or common areas that are necessary to afford the disabled person full enjoyment of the dwelling. A “reasonable modification” is a structural change made to existing premises, occupied or to be occupied by a person with a disability, in order to afford such person full enjoyment of the premises. However, an association can place reasonable conditions on the modifications. These conditions include requiring the disabled person to: (1) provide a reasonable description of the modifications; (2) provide reasonable assurances that the work will be done in a workmanlike manner; (3) make the modifications in accordance with the association’s reasonable aesthetic requirements that do not increase the cost of the modifications; and (4) obtain any required building permits. Generally, the requestor is responsible for the cost of the reasonable modification.
As is the case with operating any common area within a community association, a community swimming pool requires more than just proper chlorine levels to properly function. Of course, a community association can mitigate any potential risks by ensuring compliance with its governing documents and any federal or state laws.
Timothy M. Moeller is a founding partner of Moeller Graf, P.C. and has practiced community association law exclusively since 1999.
Bujar Ahmeti is an associate attorney at Moeller Graf, P.C. whose practice is dedicated solely to addressing the needs of Colorado community associations.