Monday, March 14, 2016

Association Rules Specifying Children Can Spell Trouble!

Once upon a time, community associations passed rules which all but shouted that children were a nuisance.  Rules were routinely passed which clarified that little Tommy and Tina couldn't use the pool, clubhouse, exercise room or other amenities without Mom and Dad in tow or some other adult guardian.  The definition of a child in most association documents is defined as "under age 18".
Flotation devices in the pool (including those awkward pool noodles), balls in the halls, and anything with wheels such as skateboards and bikes could certainly not be ridden around the community.
Running, skipping, shouting and playing were banned in some communities and just frowned upon in others. Certainly there are valid safety reasons to control behaviors which can harm or injure people and damage property. However, it is time to reconsider whether children really pose more of a risk than adults do in your community.
There is no doubt that babies and toddlers are at significant risk of drowning if left unattended in or near a pool. However, an adult who cannot swim also can drown in your community pool. Babies and toddlers who are not toilet-trained present a very real risk of releasing fecal matter into the pool; so do incontinent adults who fail to wear the proper protective garments. Children often do not understand the risks associated with exercise equipment and can hurt themselves or others. However, an adult under the influence of drugs or alcohol can also underestimate safety risks and can pose a danger to themselves or others in the common areas.  Even responsible adults can have unforeseen problems. Last year brought news of the sudden and tragic death of the husband of Facebook's COO, Sheryl Sandberg, while using a treadmill. While someone can be injured using a hover board or skateboard, a wheelchair or golf cart can also present problems for both the user and passersby in certain circumstances.
Why is it such a problem for associations to specify children in their rules? Doing so subjects a board to a potential discrimination claim as families with children are a protected class under both federal and state law.  The reality is that both young and elderly populations often are vulnerable to the same health and safety issues and both young and elderly populations can pose the same types of problems and concerns to their neighbors.
In communities that are not age-restricted, rather than crafting rules with just one particular group of residents in mind, associations are well advised to work with experienced legal counsel to create reasonable rules that address safety concerns in a uniform and sensible manner. Rules are also just one part of the equation. Associations can and should post warnings on the common areas and obtain releases where appropriate in lieu of simply banning or severely limiting the use of an amenity due to one's age.

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