Attorney’s “FSLA Final Rule and its Impact on the Government Employer” Article Featured in MIPRIMA Publication

Sue Bartos 2016The June 2016 publication of the Michigan Public Risk Management Association (MIPRIMA) features an article written by Suzanne Bartos, an attorney in our Livonia office.  The informative article outlines the recently released rules regarding the payment of overtime to employees and its impact on the government employer.

To read the complete article, please click here.

Suzanne P. Bartos is an attorney in our Livonia office where she focuses her practice on employment and labor law, insurance defense, municipal law, education law, and litigation.  She may be reached at 734-261-2400 or sbartos@cmda-law.com.

Legal Update: How Changes to Periodic Garnishments in Michigan Affect Condominium Collection Practices

William Kolobaric_8x10@300The Board of Directors for condominium associations are often faced with delinquent co-owners who fail to pay assessments or fines. Typically, an Association will seek voluntary compliance with a co-owner to obtain payment, but sometimes the Association is forced to pursue a judgment against the delinquent co-owner. After the Judgment is entered, the Association may pursue collection efforts against the co-owner by sending a periodic garnishment to the co-owner’s employer.

On April 16, 2015, Michigan Governor Rick Snyder signed into law House Bill 4119 (the Bill), which affects periodic garnishments sent to employers. The Bill amended MCL 600.4012 by making the following changes, which became effective immediately:

  • Periodic garnishments will now remain in effect until the balance of the judgement is satisfied rather than having to renew the garnishment every 182 days as previously provided. MCL 600.4012(1);
  • The garnishee fee has risen from $6.00 to $35.00. MCL 600.4012(12);
  • The periodic garnishment is not valid or enforceable unless it is served in accordance with the Michigan Court Rules. MCL 600.4012(4);
  • Although default judgments will still be allowed against an employer that fails to fully comply with a periodic garnishment, creditors will be required to give employers ample notification, via a multi-step process, when they are not in compliance. Employers will then have 28 days to rectify the situation and after entry of a default but prior to entry of a default judgment. MCL 600.4012(6)-(8); and
  • Even if a default judgment is entered against an employer, the employer will have 21 days after entry of the default judgment to petition the court to limit the amount of the judgment to the amount that would have been withheld if the garnishment had been in effect for 56 days, rather than entering the judgment for the full amount of the debt. MCL 600.4012(9)-(10).

How the Recent Changes Affect Your Association

The good news for condominium associations is that only a single writ of garnishment to the delinquent co-owner’s employer will be needed to pursue collection of the entire judgment. This translates into savings to the Association whereby it will no longer incur additional attorney fees and costs in having to prepare and reissue supplemental writs of garnishment if the initial garnishment and/or subsequent writs expired with a balance still due and owing on the judgment.

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However, there is a “but” to the recent amendment. Since priority of payment on the garnishment is established in the order that the garnishments are received—except for child support withholding orders and tax levies, which have priority over a creditor garnishment order regardless of when received—it is imperative for Board of Directors to act promptly in pursuing garnishments against a delinquent co-owner. If another creditor files a wage garnishment first, the Association may have to wait years until the first garnishment is paid off.

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How the New Law Changes the Employer’s Responsibility

Under the former garnishment provisions, if an employer failed to timely respond to a writ of garnishment, the Association’s attorney could pursue the employer for the full amount remaining due on the judgment set forth in the garnishment against the employee. Thus, the old statute provided a hefty incentive for employers to comply with garnishment requests. Under the new changes to the statute, the Michigan legislature made it much more difficult to hold an employer liable for failing to comply with a garnishment request related to its employees. As described above, the Michigan legislature added numerous notice provisions, allowed the employer 28 days to rectify a default and further allowed an additional 21 days to petition the Court to limit the total amount.

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How the New Law Changes a Former Collection Tactic

Under the former garnishment provisions, garnishments only lasted 182 days and could not be renewed until the 182 days had expired. A clever collection attorney for the Association could establish writ priority by submitting the Association’s garnishment a couple of days prior to the expiration of the writ that had priority. Thus, the Association would often obtain at least some funds during the year from the co-owner’s employer.   Regrettably, with the new amendment to Michigan’s statute, the Association may have to wait years to see a dime. However, the Board will still want to direct its attorney to prepare and file the garnishment with the co-owner’s employer in order to establish priority since the employer will be required to begin paying the Association once any prior garnishments have been paid in full or withdrawn.

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Conclusion

It is important for the Board of Directors for the Association to continually review the Association’s receivables and aggressively pursue the collection of any delinquent accounts. With the recent changes to Michigan’s statute, any delays may impact how quickly the Association will obtain garnishment payments.

William Kolobaric is an attorney in our Livonia office where he concentrates his practice on community association law, construction law, real estate law, creditor’s rights in bankruptcy, and probate and estate planning. He may be reached at (734) 261-2400 or wkolobaric@cmda-law.com.

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Sixth Circuit Holds that Police Must Protect Free Expression of Unpopular Views

Curlew, DougThe “freedom of speech” protected by the First Amendment encompasses both actual speech and expressive conduct.  R.A.V. v. City of St. Paul, Minn. (S.Ct. 1992).  Embodied within the concept of “free speech” is recognition that advocates of unpopular views must be protected, even though their speech may provoke anger in persons who hear it.  Terminiello v. City of Chicago (S.Ct. 1949).  When a speaker passes the bounds of mere argument the point of seeking to incite a riot, police may intervene against the speaker for the protection of public safety, Feiner v. New York (S.Ct. 1951), but this threshold is reached only where the speaker’s advocacy “is directed to inciting or producing eminent lawless action and is likely to incite or produce such action.”  Hess v. Indiana (S.Ct. 1973).  “Government officials may not exclude from public places persons engaged in peaceful expressive activities solely because the government actor fears, dislikes, or disagrees with the views those persons express.” Wood v. Moss (S.Ct. 2014).

In two recent opinions, the United States Court of Appeals for the Sixth Circuit has addressed this balance between free speech and public safety.  In Occupy Nashville v. Haslam (2014), protestors seeking to bring “attention to disparities in wealth and power in the United States” established a 24-hour-a-day protest encampment on the plaza of a public war memorial in Nashville, Tennessee.  As the days passed and the number of protestors grew, problems arose dealing with human waste and trash, together with “an increase in the number of assault complaints and damage to public property.”  After three weeks, State officials decided to address these problems by imposing a curfew under which “the plaza would close to the public from 10:00 p.m. until 6:00 a.m. daily.”  Protestors arrested for attempting to continue their 24-hour-a-day protest in defiance of the curfew sued the officials for violating the protestors’ First Amendment rights.  The Sixth Circuit held that the officials could not be found liable to the protestors, because there is no clearly established constitutional right to occupy public space for an indefinite period and no “unfettered right to threaten the health and safety of the public or the security of public property.”

In Bible Believers v. Wayne County (2015), law enforcement officials also invoked public safety concerns to justify ouster of Christian “evangelists” from a public Arab cultural festival.  The evangelists targeted the many Muslim attendees with a provocative, anti-Islamic speech and signs (particularly insulting the Muslim prophet Mohammed), while carrying a severed pig’s head on a stick through the crowd.  Some festival attendees threw bottles and other objects at the evangelists.  The deputy chief of the sheriff’s department asked the evangelists to leave, with justification that he did not have enough officers at the event to protect the evangelists from the crowd.  He warned the evangelists they would be ticketed for disorderly conduct if they refused to leave.

After originally approving the sheriff’s actions, the Sixth Circuit re-heard the case and found the sheriff to have violated the evangelists’ First Amendment rights.  The Court held that law enforcement officials have an obligation to protect those who publicly express an unpopular viewpoint from the hostile reaction of those upset by the message.  In this instance the sheriff’s course of action allowed the hostile crowd to silence the evangelists.  Citing the previous Sixth Circuit case of Glasson v. City of Louisville (1975), the Court admonished that “a police officer has the duty not to ratify and effectuate a heckler’s veto.”

The lesson to be drawn from the Occupy Nashville and Bible Believers opinions is that concerns for public safety cannot justify the complete silencing of a speaker in a public forum.  The cases fail to provide any “bright line” to discern when public safety concerns become sufficiently compelling to justify restriction of speech, but a total exclusion such as effectively occurred in the Bible Believers case will almost certainly be rejected by the courts, even where a compelling public safety concern exists.

The Occupy Nashville decision confirms that health and safety concerns can justify limited restrictions that do not entirely prevent a speaker from continued speech or expressive conduct in a public forum the speaker has chosen.  The Supreme Court has long recognized that content-based regulation of speech in a public forum is permissible only “to serve a compelling state interest” and only when the regulation “is narrowly drawn to achieve that end.”  Perry Ed. Ass’n. v. Perry Local Educators Ass’n (1983).  Yet “reasonable time, place or manner restrictions on expression are constitutionally acceptable.”  Clark v. Community for Creative Non-Violence (S.Ct. 1984).  The over-night exclusion of speakers from the plaza in Occupy Nashville was sufficiently narrow in its time-frame and scope.

Conversely, the effectively total exclusion of the evangelists in the Bible Believers case was not.  The Bible Believers opinion admonishes that law enforcement officers must protect the right of speakers to express unpopular views in their chosen public forum, even though this might require affirmative intervention by law enforcement officers against those who oppose the speakers. Law enforcement officials must seek alternatives that maintain public safety, while still allowing provocative speakers to speak.

Douglas J. Curlew is an attorney in our Livonia office where he concentrates his practice on appellate law, premises liability, and insurance law. He may be reached at (734) 261-2400 or dcurlew@cmda-law.com.

Department of Education and Transgender Facilities

all-gender-restroom-photoMay 13, 2016 the U.S. Department of Justice and the U.S. Department of Education issued a “Dear Colleague” letter to all schools in the country receiving money from the federal government directing that “when a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.” Gender identity refers to an individual’s internal sense of gender.  A person’s gender identity may be different from or the same as the person’s sex assigned at birth.  The Department of Education says schools cannot require a medical diagnosis or other documentation to prove transgender status.

Although the “Dear Colleague” letter is not a congressional statute, executive order, or even a regulation, it is a directive that the federal government refers to as “significant guidance.”  School districts, including the country’s 16,500 public school districts, post-secondary colleges, 7,000 universities and trade schools, charter, and for-profit schools are now on notice regarding how the federal government interprets Title IX, the 1972 law that prohibits sex discrimination in education, as it relates to the rights of transgender individuals.  As a condition of receiving federal funds, a school must agree that it will not exclude, separate, deny benefits to, or otherwise treat differently on the basis of sex any person in its educational programs or activities unless expressly authorized to do so under Title IX.  The “Dear Colleague” letter noted that as consistently recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students.  The directive carries with it the implied threat that failure to follow the federal government’s interpretation could result in the loss of federal education funding.

The directive noted that when a school provides sex-segregated activities and facilities, transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.

From a practical standpoint, the directive states that schools cannot require transgender students to use their own private bathrooms unless it does the same for all students.  A school may come up with alternate facilities, for example a single-user restroom, as long as these options are available for all students who voluntarily seek additional privacy.  Other practical solutions could include putting up curtains in locker rooms for more privacy or allowing differing schedules by transgender students to use facilities as long as these differing schedules are not required.

Additional considerations addressed in the directive include that teachers and staff cannot use a transgender student’s birth name or pronoun and school records must reflect the student’s chosen name and gender identity.  Schools with sex-segregated accommodations for overnight field trips must allow transgender students to sleep with students of their chosen gender.  Schools may offer single-occupancy sleeping rooms, but transgender students may not be required to use them unless all students have access to them.  Athletic teams are allowed to segregate by sex, as long as they provide equal opportunity for both sexes.

Additionally, on April 19, 2016, the U.S. Court of Appeals for the Fourth Circuit deferred to the U.S. Education Department’s position that transgender students should have access to bathrooms that match their gender identities rather than being forced to use bathrooms that match their biological sex.  This case is entitled G.G. v Gloucester County School Board, No. 152056, and concerns a high school junior’s complaint that transgender students should have access to bathrooms that match their gender identities not their biological sex.  In a 2-1 decision, the Fourth Circuit ordered the lower court to rehear the student’s claims that the school board’s policies, which restricted transgender students to using a separate unisex bathroom, violated Title IX.  The Court also ruled that the lower court should reconsider a request that would have allowed the teen to use the boy’s bathroom at the high school while the case was pending.  The Fourth Circuit is the highest Court in the country to address the question of whether bathroom restrictions constitute sex discrimination and could be persuasive for the Sixth Circuit, which includes Michigan.  CMDA will continue to monitor this issue.

EliBeth Rae ODonnellzabeth Rae-O’Donnell is an attorney in our Livonia office where she concentrates her practice on municipal law, employment and labor law, and education law.  She may be reached at (734) 261-2400 or erae@cmda-law.com.

Estate Planning: A Continuous Process

Chris Schultz 2016Estate planning is a continuous process and estate plan documents should be reviewed at least every decade and upon any major changes in lifestyle or family structure.

A basic estate plan includes a Will, a Medical Power of Attorney, and a Durable General Power of Attorney for financial matters.

A Will addresses the distribution of assets, paying debts and taxes, and providing guardians and conservators for any minor children.

A Medical Power of Attorney designates the individual to be consulted for medical treatment issues in the event a person is not capable of making medical decisions for themselves.  A Medical Power of Attorney can also contain specific instructions for personal preferences, such as anatomical gifts, life sustaining treatment, or treatment consistent with your religious beliefs.

A Durable General Power of Attorney for financial matters allows a person to name an agent to make financial and legal decisions, which is important in the event a person become incapacitated, temporarily or permanently, or is not available to perform certain regular tasks for banking, bill paying, etc.

Additionally, estate plans often include a Revocable Living Trust (Trust).

A Trust is created for several purposes, including planning for potential tax issues, controlling the timing of distributions or setting contingencies for distributions, and avoiding probate.  A Will is administered through the probate court addressing the assets that are titled in a person’s name upon their death.  A proper Trust can avoid the time consuming and expensive probate process.

Without proper instruction to a probate court through a Will or to a successor trustee through a Trust, the assets will be distributed in accordance with a statutory scheme that essentially follows a genealogical rule of inheritance.  Simply, the assets would first go to parents, if surviving.  If not, the assets would be distributed to siblings in equal proportions.

Those who are not married and do not have children may think they do not need an estate plan.  This is not true, especially if they plan to donate assets to a charity, such as a church, college or other qualified charitable organization.  Without an estate plan, assets would be distributed according to a statutory plan with the beneficiaries being immediate family members.

Blended families where one or both spouses have children from previous relationships, create additional reasons to prepare an estate plan.  Following the statutory genealogical rule of inheritance is not going to be the result intended.  Consideration has to be given to making special provisions and allowances for children from prior relationships, former spouses, and possibly a separate allocation of assets.

Complicating matters further are individuals who live with a significant other and may or may not have children.  In almost every circumstance, without an estate plan, your intended disposition of assets will not be consistent with the actual distribution of assets.  An estate plan is necessary in order to guide a probate court or a successor trustee with the proper allocation and distribution of assets.

Estate planning for the elderly becomes complex due to concerns for long-term care and the potential need for Medicaid.  Medicaid is a need-based program and Medicaid planning is needed in order to qualify for eligibility.  More and more reviews and reports are being published that recommend purchasing long-term care insurance.  In most circumstances, it appears this is a more viable financial option than planning for Medicaid eligibility.  Medicaid planning is a method organizing the assets and income into categories of countable or non-countable assets.  Non-countable assets are assets that are not counted in determining your eligibility for Medicaid benefits.  Proper Medicaid planning can assist in sheltering your countable assets, preserving assets to pass to your heirs, and providing for the care and financial support of your spouse.

Estate planning has become more complicated over the years, however the estate plan itself does not have to be complex.  Attorneys in our Estate Planning and Elder Law practice group are available to assist in creating or updating your estate plan to ensure the plan benefits you and your loved ones.

Christopher G. Schultz is a partner in our Livonia office where he concentrates his practice on representing businesses in many areas of the law. Additionally, he assists clients with estate and elder law planning. He may be reached at (734) 261-2400 or cschultz@cmda-law.com.

Condo Group Attends CAI Golf Outing

Condo Group CAI Outing 16Attorneys Kevin Hirzel, Joe Wloszek, William Kolobaric and Matt Heron from the Firm’s Condo Group enjoyed a fun day with board members, managers and industry leaders at the Community Associations Institute (CAI) Annual Golf Outing. Thanks to everyone who stopped by Hole #2 for snacks, fun games and great prizes.

What Community Associations Should Know About the Fair Housing Act and its Impact on Pool Rules and Regulations

William Kolobaric_8x10@300With the summer heat wave in full force, it is nice to enjoy a refreshing dip in the pool to cool down.  Also, pools are not only good for cooling down but also provide numerous other benefits, including family time without the distractions of today’s technology, fitness training, stress relief, therapy and helping to keep children active.  Additionally, community pools can add value to one’s property.

For many of these same reasons, many condominium and homeowner association projects are built with community pools.  In order to protect the interests of their members, guests and invitees, many of these communities enact pool rules and regulations for safety and health reasons in order to prevent accidents and injuries.  One can often find rules and regulations that restrict the age of the individual using the pool, the time when the pool can be used, the clothing to wear in and around the pool, the items that can be brought to the pool and/or used in the pool, and the activities that can be conducted in or around the pool.

Boards of Directors are now more frequently facing discrimination accusations about the appropriateness of these rules and regulations by their membership under the Fair Housing Act (“FHA”)[1].  This article will examine how swimming pool rules and regulations are impacted by the FHA, describe litigation that has taken place under the FHA, review the FHA senior living exception and make recommendations regarding pool rules and regulations.

The Fair Housing Act
The FHA, which is codified at 42 U.S.C. §§ 3601 – 3619, was originally adopted in 1968 and prohibits discrimination based on race, color, religion, sex, or national origin.  The FHA was amended in 1988 to add protected classes of disability and familial status.  The U.S. Department of Housing and Urban Development (“HUD”) administers and enforces violations of the FHA.

Many of the provisions of the FHA do not typically apply to community associations, but discrimination allegations are most often made under 42 U.S.C. § 3604(f) and, in particular, § 3604 (f)(2).  These provisions preclude discrimination on the basis of “familial status”, which means discrimination against families with children. Familial status protection also applies to pregnant women and anyone securing legal custody of a child under 18.  Thus, HUD will claim an association is violating the FHA if an association treats families with children differently than other residents in the community, either through direct discrimination or discriminatory enforcement of an association’s rules or restrictions.

Litigation under the FHA
Since the 1988 amendments, there have been a number of lawsuits that have challenged swimming pool rules on the basis that they discriminate on the basis of familial status.  These cases have held that restrictions on children’s use of a swimming pool, where those same restrictions do not apply to other adult residents, are prima facie cases of discrimination under the Act.

As set forth above, most association rules and regulations are drafted to address concerns about safety and health, which have typically resulted in boards adopting rules that limit children’s use of the pool.  Although keeping the pool safe and sanitary presents a compelling business necessity for associations, the FHA  requires that boards come up with more inventive ways to address their safety and sanitation concerns than simply forbidding minors under a certain age or non-toilet trained children from using the pool.

The courts have found that the only way associations may avoid liability for rules that discriminate against children is to demonstrate: (1) that the pool rule is rooted in a “compelling business necessity,” and (2) that the rule constitutes the “least restrictive means” to achieve the desired effect.

For example, in Iniestra v. Cliff Warren Investments, Inc., C.D.Cal.2012, 886 F.Supp.2d 1161 (California), a California apartment complex rule 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”. The court found that the rule was “facially discriminatory”, in that it “treated children, and families with children, differently and less favorably than adult-only households”. Once the Court determined the rule to be “facially discriminatory”, the apartment complex was required to establish that the rule is the “least restrictive means to meet a compelling business necessity”. The Court found that the apartment complex could not establish its burden and found that “a prohibition on unsupervised swimming which would prevent even a 17-year old certified lifeguard from swimming unaccompanied is overly restrictive.” 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”. Although the court offered no guidance regarding pool rules, it wrote the following concerning noise and adult supervision: “Indeed, children might make noise even if their parents are present. More appropriate policies might have simply prevented children from playing near gates or on the roof tops, or required all residents to maintain a certain noise level.”

In Llanos v. Coehlo, 24 F. Supp. 2d 1052 (C.D. Cal. 1998), a federal court found that the association’s rules designating “family pools” and “adult areas” in the complex and prohibiting children from playing in and around adult areas of the complex were discriminatory and violated the Fair Housing Act. (Also see U.S. v. Plaza Mobile Estates, cited below.)

A similar decision was reached by a federal court in the unpublished case of Landesman v. Keys Condo. Owners Ass’n, 2004 WL 2370638 (N.D. Cal. Oct 19, 2004), aff’d, 125 F. App’x 146 (9th Cir. 2005).  The association’s reason for restricting children from the main pool was that adults enjoyed using the pool for lap swimming and they preferred the relative tranquility of a swimming pool not filled with active, noisy children. Although sympathetic, the court ruled against the association.

In United States of America v. Plaza Mobile Estates, et al., 273 F. Supp. 2d 1084 (C.D. Cal. 2003), the Court held that rules requiring adult supervision for children under 18 years old using recreational facilities in a community, including the community swimming pool, were discriminatory and violated the Fair Housing Act because they treated children, and thus families with children, differently and less favorably than adult-only households.  In addition, the Court in Plaza Mobile Estates held that the ability to swim unsupervised is not solely dependent on age alone because in many cases young children can swim very well, while there are some older adults who cannot swim well.

Similar to the Court’s finding in Iniestra, the Court in Plaza Mobile Estates further found that it was illogical, for instance, that a 17-year old certified life guard who is a strong proficient swimmer would be prevented from swimming if unsupervised in the community pool because he/she is not 18 years old, while an older adult who is not a proficient swimmer would be allowed to swim unsupervised in the community pool.

Exceptions for Senior Communities
Section 3604 of the FHA provides an exception for Fifty-five and over communities that qualify under the Housing for Older Persons Act of 1995 (42 USC § 3607(b)(2)(C)) (“HOPA”).   § 3607, which in relevant part provides as follows:

  • 3607. Religious organization or private club exemption(b) (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–(C) 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;Congress intended to balance the interests of the FHA to protect families with children while at the same time “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.”  134 Cong. Rec. H4603 at *H4607 (daily ed. June 22, 1988).  Thus, on its face, the HOPA provisions would appear to allow age qualified communities to limit and/or prohibit the use of their amenities by children. Moreover, according to the Department of Housing and Urban Development (HUD):If a housing community facility qualifies under HOPA as housing for older persons, the community facility is exempt from the Act’s prohibition against discrimination on the basis of familial status. The housing community facility may restrict families with children from benefits of the community, or otherwise treat family households differently than senior households… (HUD Q & A re HOPA)However, since members have the right to have guests, including children, it would still be prudent that any rules and regulations meet standards of reasonableness and be drafted to address conduct rather than age or status to avoid potential claims which may cause unnecessary expenses to defend the rules and regulations from claims of discrimination.Consequences for FHA Violations
    Penalties for violations of the Fair Housing Act can vary depending on whether the case is processed via court, HUD or elsewhere and can result in fines up to $16,000 for the first offense and up to $65,000 for repeated offenses.  If the case involves the Justice Department, the penalties can go up to $100,000. Moreover, punitive damages can be awarded by the federal court, and the violator could be held responsible for compensation for actual damages, including humiliation, mental distress, and loss of housing opportunity.  In addition, the Association can be responsible for the attorney fees and costs incurred by the Plaintiff.  Additionally, HUD keeps a record of all charges that are filed through them and makes that information publicly available.Recommendations for Pool Rules & Regulations
    When considering implementing new or amending exiting pool rules and regulations, Boards should consider the following guidelines:
  • Boards should refrain from using subjective standards and instead use objective standards, issued by manufacturers of the diving board, slide, etc. So rather than stating “Children under the age of eighteen (18) years of age cannot use the diving board and slide”, the board can implement a rule that states that “the manufacturer of the diving board and slide recommend that only people over the age of twelve (12) years of age be allowed to use the diving board and/or slide”.
  • Boards should refrain from having rules and regulations that are an outright ban on children’s use of pool; rather boards should implement rules and regulations that require supervision of children under a certain age. Many such rules have set the age as fourteen (14) years of age due to the fact that the Red Cross requires students to be at least fifteen (15) years old by the last day of class to be certified as life guards. However, please note that although there have been courts that have allowed such supervision rules based on the age of the child, one court[2] has held that a pool rule requiring “children under 14 to be supervised by a parent or legal guardian while using the Pool and Spa…” familial discrimination under the FHA.
  • Boards should refrain from having rules and regulations that indicate a “parent” must be present. The board should rather implement rules and regulations that indicate a supervising adult should be present.
  • Boards should refrain from having rules and regulations that target a person’s particular attire that could be a basis for discrimination claims based on gender and/or religion. Thus, rules and regulations should simply state that the Association has the right to remove an individual for any conduct that poses a safety risk to anyone in the pool area, for any immoral, improper, unlawful or offensive behavior or any behavior which becomes an annoyance or a nuisance to anyone in the pool area.
  • Boards should refrain from creating adult only times, limiting children’s access to pools to only certain hours of the day and/or creating adult and family pools. Boards can achieve similar results by having lap swimming for everyone during certain times of the day and/or areas of the pool.
  • Boards should refrain from creating rules and regulations that state that “any children who are not toilet trained are not allowed to use the pool.” Instead, the rule or regulation can be rewritten to state that “children who are not toiled trained are required to use waterproof pants or diapers in the pool.”
  • Boards should refrain from having rules and regulations that ban all animals from the pool area. Boards should use language that allows a member of the association to bring their animal to the pool area if the animal is a service or emotional support animal.

Finally, as with all of the association’s rules and regulations, pool rules and regulations should be put in writing, distributed to the membership and enforced consistently, non-discriminatory and if exceptions are made, to ensure that those exceptions are also consistently made.

Conclusion
Care must be taken when drafting pool rules and regulations to avoid discrimination claims under the FHA and the consequences of violations can be harsh.  Boards should write their rules and regulations to address conduct rather than the age or status of the individual.  Moreover, the rules should be written such that they are the least restrictive means to the association’s compelling business reason.  Since use of the pool and conduct in and around the pool are very fact specific, in order to avoid violating the FHA, associations should consider contacting competent legal counsel to review their existing pool rules and regulations and any proposed revisions.  If you have any questions regarding your pool rules and regulations, please contact our office.

William Z. Kolobaric is an attorney in our Livonia office where he focuses his practice on community association law, construction law, real estate law, creditor’s rights in bankruptcy and probate and estate planning. He has extensive experience in state and federal courts involving a wide scope of real estate, commercial litigation and creditor’s rights matters. He can be reached at (734) 261-2400 or wkolobaric@cmda-law.com.

Please view The Michigan Community Association Law Blog at http://www.micondolaw.com for additional resources on Michigan Community Association Law.

[1] Boards should be aware that most associations will not be subject to the Americans With Disabilities Act (“ADA”), which Congress enacted in 1990 and which prohibits discrimination against the disabled in places of public accommodation, because their pools are only open to owners and residents and thus, do not qualify as places of public accommodation and are not subject to the ADA’s requirements.  However, there is an exception to this rule if a community association opens up its facilities to the public, such as when a community association’s pool is used for a swim meet with a team from another community.  If a community association does engage in activities that make it a place of public accommodation, then it is subject to the requirements of the ADA for that portion of the property and may be required to install accessibility features.

[2] See Pack v. Fort Washington II, 689 F.Supp.2d 1237 (E.D.Cal. 2009)

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