Discrimination against kids under 5??

Started by KerryL1 • 52 replies • 2116 views

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KerryL1 (California)
Posts: 14,550

Posted:

Our Board has proposed a rules cage that does not permit kids under 5 in the spa. (The rule is not proposed for the pool) The "reason" given sent out to Owners for their comments is for the tykes' health & safety. But, it's actually to prevent perceived "Fecal Teabags" in our Spa.

We do have signage warning users that pregnant women, young kids and oner with certain medical conditions should restrict their usage for health reasons.

Our 200+ high rise HOA only has about 3 children under 5, though grandkids, etc. do visit occasionally. We've had no illnesses reported in our 16 years of having the spa open to all.

As a director, I voted no on this because I think we need our HOA attorney's opinion: If implemented, doesn't this discriminate against little Kids? What about diaper-wearing adults?? Shouldn't they also be kept out of the spa? Probably 20% of our residents are 60+.

(Please stick to this specific topic!!)

PitA
Posts: 1,416

Posted:

..... What about diaper-wearing adults?? Shouldn't they also be kept out of the spa? .....

ABSOLUTELY CORRECT

How about:

INCONTINENT or DIAHREAL PERSONS PROHIBITED

RichardP13 (California)
Posts: 3,868

Posted:

Most public pools will not allow children under 12 in a hot tub, although the Red Cross recommends no children under age 5, explaining that "children cannot cope physically with the heat, which may cause hyperthermia and other harmful effects."Aug 21, 2007

MelissaP1 (Alabama)
Posts: 13,836

Posted:

5 year olds and below should NOT be in hot tubs as general safety and health issues. It's not just "fecal teabags". There are drowning risks, hypothermia, and what do they need a hot tub for???

Here is an issue with many pools/hot tubs that is not publicized very much: The suction of the filtration system. Many people children and adults have had incidents involving faulty suction of the filtration system. It's that round disc you see at the bottom of pools/hot tubs. Usually with slots in it. If that comes off or is set too high it will suck a person hair or body part into it. Warning next will be a bit graphic but it's true. There have been incidents of one's intestines being sucked out causing death or a life time of issues. You can look up those stories if you choose.

So it's NOT discrimination. It's called being responsible human being protecting other humans from known/unknown dangers.

Former HOA President

TimM11
Posts: 354

Posted:

I agree with getting your attorney's opinion first. I understand the safety issues, but there is the FHA to consider, and HOAs that have tried to implement age restrictions on pool use have been successfully sued under it before.

TimB4 (Tennessee)
Posts: 21,062

Posted:

Quote:

Posted By MelissaP1 on 07/22/2017 3:10 PM

So it's NOT discrimination.

Ahh, but because it's restricted by age it can be considered discrimination and legal action would be brought by the government if just one complaint was received. Additionally, since it only applies to the Hot Tub and not the pool using the basis of health reasons is minimized.

Now, if it's restricted by medical condition, etc. then yes that would be likely fly.

LetA (Nevada)
Posts: 2,679

Posted:

Quote:

Posted By KerryL1 on 07/22/2017 12:28 PM
Our Board has proposed a rules cage that does not permit kids under 5 in the spa. (The rule is not proposed for the pool) The "reason" given sent out to Owners for their comments is for the tykes' health & safety. But, it's actually to prevent perceived "Fecal Teabags" in our Spa.

We do have signage warning users that pregnant women, young kids and oner with certain medical conditions should restrict their usage for health reasons.

Our 200+ high rise HOA only has about 3 children under 5, though grandkids, etc. do visit occasionally. We've had no illnesses reported in our 16 years of having the spa open to all.

As a director, I voted no on this because I think we need our HOA attorney's opinion: If implemented, doesn't this discriminate against little Kids? What about diaper-wearing adults?? Shouldn't they also be kept out of the spa? Probably 20% of our residents are 60+.

(Please stick to this specific topic!!)

You Can't according to Sterling Davis and the Plaza Mobile Estates ruling, children have a right to be in the hot tub.. I know, because I've hymed and hawed and bitched a blue streak at my HOA because these little sperm gargles don't "use" the hot tub as a lucid. sane adult would..

PitA
Posts: 1,416

Posted:

To repeat:

INCONTINENT or DIAHREAL PERSONS PROHIBITED

KerryL1 (California)
Posts: 14,550

Posted:

Thanks for the replies.

I agree with Tim that we need to consult with our HOA general counsel. He doesn't have to dig through our own docs to know the answer and phone calls to him are free with our $500 annual retainer. Imo, phoning him is part of our duty of due diligence.

I like PitA's wording though the Davis-Stirling site suggests a little more elaboration. We, anyway, are by law supposed to put up a notice that prohibits persons with current or active diarrhea in the last 14 days from entering the pools.

PitA's good point is that such a sign prohibiting incontinent persons from entering the hot tub takes away the discrimination argument. It also permits small children who are potty-trained to use the hot tub and keeps out the ones older than 4 who have "accidents."

Enforcement, of course, is the problem. But, as noted, we have very few kids under 5 using the hot tub and I have no idea how we check older adults for swim diapers.

The national law to require drains that won't drown kids with suction was written in 2007 and had to be implemented by 7/1/10. We changed out our drains png before the deadline. don't know if Melissa's HOA complied or not.

LetA. Please, please, it's the Davis-Stirling legislation, it's only CA law. And you misquoted case law. There also, just to be more confusing the Davis-stirling.com web site compiled by attorneys at a CA law firm.

So, at least I'll be on record re: checking with our GC on the wording

SheliaH (Indiana)
Posts: 6,964

Posted:

Here's a link I found that quotes the CDC as saying it's not a good idea to let kids 5 and under in hot tubs (small children can't regulate their temperature as well as older children and adult) - maybe some of your homeowners who seem to think kids should be able to go EVERYWHERE might have a look:

https://www.thespruce.com/when-can-grandchildren-hot-tub-spa-1696192

I also recall staying in one of those resort/waterpark places in Ohio (those of you living near Cincinnati, yep it's that one!) and it also forbade kids 5 and under from using the hot tubs, probably for the same reason. Barring that, Pita's suggestion might be the best way to avoid age discrimination complaints.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

KerryL1 (California)
Posts: 14,550

Posted:

Yes, Sheila, we do have one comment from an owner protesting this prosed rule change. (In CA, 30 days for comments is required before a Board can make a new rule.) He included a note from his 2-y.o's pediatrician saying the 10-15 minute is fine as long as his head is kept above water and he's in his parent's arms.

His parents are threatening to sue for discrimination and to me that gives us even more reason to get our GC's free or $250 opinion and to use language similar to PitA's suggestion. The parents came into a great deal of money recently because of a successful invention, and no doubt they would take us to court.

LetA (Nevada)
Posts: 2,679

Posted:

Quote:

Posted By SheliaH on 07/23/2017 12:17 PM
Here's a link I found that quotes the CDC as saying it's not a good idea to let kids 5 and under in hot tubs (small children can't regulate their temperature as well as older children and adult) - maybe some of your homeowners who seem to think kids should be able to go EVERYWHERE might have a look:

https://www.thespruce.com/when-can-grandchildren-hot-tub-spa-1696192

I also recall staying in one of those resort/waterpark places in Ohio (those of you living near Cincinnati, yep it's that one!) and it also forbade kids 5 and under from using the hot tubs, probably for the same reason. Barring that, Pita's suggestion might be the best way to avoid age discrimination complaints.

Not to mention that the hot water isn't good for certain undercarriage parts on developing children.

LetA (Nevada)
Posts: 2,679

Posted:

Quote:

Posted By KerryL1 on 07/23/2017 2:56 PM
Yes, Sheila, we do have one comment from an owner protesting this prosed rule change. (In CA, 30 days for comments is required before a Board can make a new rule.) He included a note from his 2-y.o's pediatrician saying the 10-15 minute is fine as long as his head is kept above water and he's in his parent's arms.

His parents are threatening to sue for discrimination and to me that gives us even more reason to get our GC's free or $250 opinion and to use language similar to PitA's suggestion. The parents came into a great deal of money recently because of a successful invention, and no doubt they would take us to court.

Tell them to put a hot tub in their own backyard then.

KerryL1 (California)
Posts: 14,550

Posted:

LetA-- Please read my op.

SheliaH (Indiana)
Posts: 6,964

Posted:

These parents now have money and are threatening to sue over this???? Sometimes I wonder why Iidiots seem to come into money all the time and don't know what else to do with it besides act silly!

Anyway....go ahead and get your legal opinion, but pay careful attention to all the comments. If the majority are ok with this proposed rule and the attorney says it's fine, go ahead and enact it. You can publish some of the comments that led to the decision, along with this one, and the information from the CDC and perhaps your local health department. Wouldn't it be interesting if these people sue anyway in light of all that information? I would imagine some (many?) of the neighbors wouldn't be happy and tell them so.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

KerryL1 (California)
Posts: 14,550

Posted:

You're exactly right, Sheila. The threat to sue does not intimidate me, but as a Board we can't be idiots and make a decision without a written opinion from our GC.

This couple is a pain in other ways too; I hope that their newfound wealth will send them to a large estate far from here!

Certain board members already have collected the CDC, etc., literature to support the under-5 ban. But, to my mind, that isn't adequate to protect our HOA. And you're also right that most would support keeping the occasional tot out of the Spa. The couple in question probably bring theirs to the pool are 2X/wk.

LetA (Nevada)
Posts: 2,679

Posted:

Quote:

Posted By KerryL1 on 07/23/2017 8:50 PM
LetA-- Please read my op.

The problem I have is my HOA here in Nevada follows the Davis Sterling ruling and the Plaza Mobile Estates. such is life in CalNevadafornia/

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By LetA on 07/24/2017 8:07 AM

Posted By KerryL1 on 07/23/2017 8:50 PM
LetA-- Please read my op.

The problem I have is my HOA here in Nevada follows the Davis Sterling ruling and the Plaza Mobile Estates. such is life in CalNevadafornia/

LETa

It is the Davis-Stirling Act, the principals being Gray Davis, former Governor of California and Larry Stirling, former State Assemblyman and State Senator.

RichardP13 (California)
Posts: 3,868

Posted:

Our legal counsel in 2009, when we were updating our pool signage told us to eliminate the wording of children and state, no person under such and such age.

To date, there has been no issue. I had also done that for associations I managed with no one crying foul.

LetA (Nevada)
Posts: 2,679

Posted:

Quote:

Posted By RichardP13 on 07/24/2017 8:38 AM

Posted By LetA on 07/24/2017 8:07 AM

Posted By KerryL1 on 07/23/2017 8:50 PM
LetA-- Please read my op.

The problem I have is my HOA here in Nevada follows the Davis Sterling ruling and the Plaza Mobile Estates. such is life in CalNevadafornia/

LETa

It is the Davis-Stirling Act, the principals being Gray Davis, former Governor of California and Larry Stirling, former State Assemblyman and State Senator.

That would be the one, The HOA legal council uses that as a "guideline"

KerryL1 (California)
Posts: 14,550

Posted:

LetA: I meant my 1st post: we are a condo building--no place for a private hot tub.

I hope your HOA counsel knows that NV law trumps CA law, i.e., the Davis- Sterling legislation.

We have a new PM and she's going to call our GC today since we have an open meeting tomorrow and "final" approval could come from the Board at that time. Need I say that one reason we haven't consult with our HOA attorney yet is that the attorney & new director on our Board thinks they know all about such things even tho' far afield from what they practiced.

PitA
Posts: 1,416

Posted:

Soaking for too long in elevated water temperatures can raise body heat to hazardous levels. The National Spa and Pool Institute considers 104° F to be the maximum safe water temperature for adults, and modern spas are normally set at the factory not to exceed that limit.

A safe soaking time should not exceed 15 minutes. Some medical authorities have recommended a lower maximum temperature of 100° to 102° F. They advise that since infants and children are more sensitive to heat, they should be exposed to water of not more than 95° F, for no more than 10 minutes. Consult with your family doctor.

Case Closed

TimM11
Posts: 354

Posted:

Quote:

Posted By PitA on 07/24/2017 4:01 PM

Case Closed

Except that's not the issue here.

TimM11
Posts: 354

Posted:

Quote:

Posted By PitA on 07/24/2017 4:01 PM

Case Closed

Except that's not the issue here.

PitA
Posts: 1,416

Posted:

That is PRECISELY the case

..... The "reason" given sent out to Owners for their comments is for the tykes' health & safety. .....

KerryL1 (California)
Posts: 14,550

Posted:

Well, I could not get our Board to use generic language relating to all incontinent persons so the rule is no kids under five are allowed in the spa. A parent & a grandparent protested vociferously, bot to no avail. I'll let you know if anything comes out of this. thanks to all, especially PitA.

GenoS (Florida)
Posts: 4,276

Posted:

Could you put something in your governing documents that says the extra costs of cleanup, chemicals and labor at a pool that has had a diahrreal accident will be charged back to the unit owner? If you've got security cameras and/or controlled access to the pool area then it seems like it could be a simple matter to figure out the identity of Mr. Poopy Pants.

KerryL1 (California)
Posts: 14,550

Posted:

Interesting point, Geno. We've never had an incident in the 10 years I've been on the board. We do have cameras and fob access and would be able to identify anyone who left a big mess. We already have an CC&R article that any owner who causes damage resulting in expenses will be billed for the after a call to hearing, etc. We recently added to our rules causing a false alarm since the City charges our HOA for those.

As noted, we have VERY few kids under 5 years old, maybe 3 or 4. We do have tot-grandkids visit from time to time.

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By KerryL1 on 07/26/2017 11:00 AM
so the rule is no kids under five are allowed in the spa.

Sorry, your general counsel should have told you that "kids" is being discriminatory. Should be "persons", based on my old association's general counsel.

KerryL1 (California)
Posts: 14,550

Posted:

To repeat, Richard. The Board, despite my best efforts, voted without seeking advice from counsel.

I do hope you're not saying the rules should say "no PERSONS under five"????

DouglasM6 (Arizona)
Posts: 724

Posted:

Quote:

Posted By PitA on 07/22/2017 12:59 PM

..... What about diaper-wearing adults?? Shouldn't they also be kept out of the spa? .....

ABSOLUTELY CORRECT

How about:

INCONTINENT or DIAHREAL PERSONS PROHIBITED

INCONTINENT or DIAHREAL PERSONS PROHIBITED IN POOL

INCONTINENT or DIAHREAL PERSONS, AND CHILDREN UNDER THE AGE OF 5 PROHIBITED IN SPA

My version of the KaKa

PitA
Posts: 1,416

Posted:

Toric or Tauric ?

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By KerryL1 on 07/26/2017 1:58 PM
I do hope you're not saying the rules should say "no PERSONS under five"????

That came from their general counsel, a partner at Adams-Stirling.

http://www.davis-stirling.com/Main-Index/Hot-Tub

http://www.davis-stirling.com/Main-Index/Discriminatory-Rules

DouglasM6 (Arizona)
Posts: 724

Posted:

Quote:

Posted By PitA on 07/26/2017 2:32 PM
Toric or Tauric ?

I hope this works...

, ,
/ \
((__-^^-,-^^-__))
`-_---' `---_-'
<__|o` 'o|__>
\ ` /
):

:o_o:
"-"

That kind!

DouglasM6 (Arizona)
Posts: 724

Posted:

Didn't work..
One more try....

__, ,
_/ \
((__-^^-,-^^-__))
_`-_---' `---_-'
__<__|o` 'o|__>
_____\ ` /
______):

______:o_o:
_______"-"

DouglasM6 (Arizona)
Posts: 724

Posted:

I give up

Taurus!

KerryL1 (California)
Posts: 14,550

Posted:

Richard, what is your point? I, of course, have read those two citations.....

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By KerryL1 on 07/26/2017 7:10 PM
Richard, what is your point? I, of course, have read those two citations.....

Seems most people are concerned about turds in the pool than someone under 5 health issues.

DouglasM6 (Arizona)
Posts: 724

Posted:

Quote:

Posted By RichardP13 on 07/26/2017 9:26 PM

Posted By KerryL1 on 07/26/2017 7:10 PM
Richard, what is your point? I, of course, have read those two citations.....

Seems most people are concerned about turds in the pool than someone under 5 health issues.

It is strange how a discussion about hot water being dangerous for children under 5 can switch to "poop in the water" so quickly.

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By DouglasM6 on 07/27/2017 11:20 AM

Posted By RichardP13 on 07/26/2017 9:26 PM

Posted By KerryL1 on 07/26/2017 7:10 PM
Richard, what is your point? I, of course, have read those two citations.....

Seems most people are concerned about turds in the pool than someone under 5 health issues.

It is strange how a discussion about hot water being dangerous for children under 5 can switch to "poop in the water" so quickly.

There are recent rules on the books dealing with diarrhea. There is enough documentation available that raises questions whether individuals under a certain age should not be allowed in a spa. Lying to people to get something passed is wrong, and I would call them on it, IN PUBLIC!

So as to not to be perceived to be discriminatory, we were advised by legal counsel to eliminate the word "children" and replace with "person". There should be enough information on www.davis-stirling.com to make an informed decision instead of running to general counsel for every little thing.

PitA
Posts: 1,416

Posted:

Sorry, your general counsel should have told you that "kids" is being discriminatory.

Why?

Are Billy Goats a protected class?

RichardP13 (California)
Posts: 3,868

Posted:

Because we live and operate in California and it is politically correct.

KerryL1 (California)
Posts: 14,550

Posted:

Again, Richard, as stated above at least once, we DID NOT make a free phone call to our HOA general counsel. Further, we do NOT contact him about "every little thing." And this topic is more major than "little."

Also as stated above at least once, I, of course read the D-S opinions waaaay before you advised it.

Again: Are YOU saying the wording should be: "no PERSONS under five..."????

PitA
Posts: 1,416

Posted:

How about:

For reasons of health and safety, as per The National Spa and Pool Institute, no infants or children under 5 allowed in our 102-104 degree Spa/Hot Tub.

All others should limit their exposure to 15 minutes.

RichardP13 (California)
Posts: 3,868

Posted:

What are you getting mad at me for? I had nothing to do with the Board voting the way they did.

The advise of removing "children" and replacing with "persons" came from a partner at Adams-Stirling law firm. There are six partners. It is not politically correct to group people into certain categories. We paid for that advise. The advise also came from another rather large law firm practicing in both California and Nevada.

As a manager, I was told to implement that advice in all our associations that we managed. Pool Rules and Rules and Regulation were updated.

KerryL1 (California)
Posts: 14,550

Posted:

You refuse to read what I've written and to answer my question: Third try: Are you saying your signs at your accounts say no "persons" under five are permitted in the spa?

And you know very well that it's not about PC language that we may not discriminate against any class of persons. It's the s law. It's why the rule for our (urban high rise) pathways, etc. say no wheeled recreational devices may be used in our common areas vs. no children's wheeled toys may be used.

PitA: You've written pretty much what the rule change was that we send out for Owner comment. I liked your more neutral wording better.

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By KerryL1 on 07/27/2017 1:33 PM
Third try: Are you saying your signs at your accounts say no "persons" under five are permitted in the spa?

What part of yes don't you understand?

I will make sure in the future not to comment on anything you might have commented as your experience in your urban high rise gives you more experience as others.

PitA
Posts: 1,416

Posted:

And you know very well that it's not about PC language that we may not discriminate against any class of persons. It's the law.

partially correct

the 'law' has provisions for safety and public policy 'exceptions'

eg. drinking age - voting age - unsupervised pool use by 'children under the age of xyz' - etc etc etc

spa and hot tub safety concerns regarding infants and young children (not baby goats) over-ride the 'discrimination' bans

D'OH

KerryL1 (California)
Posts: 14,550

Posted:

I'm interested in PitA's opinion of this wording. "Persons under five are not permitted in the spa." Richard claims that two lawyers advised him that that wording doesn't discriminate against children. He claims such a sign is posted at his accounts with spas. Now if Richard could send a picture of this sign, I might, just might, believe him.

I'd argue that whether the sign says "Individuals," "Those," "People," or Children," it's the "under five" part that discriminates.

(I do agree that incontinent persons should be kept out.)

SheliaH (Indiana)
Posts: 6,964

Posted:

After all this, maybe you should just go with "persons who are incontinent of bladder or bowel are prohibited from using the pool" or something like that. This way, you don't single out kids and I would hope with all those adult diaper commercials everyone knows what incontinent means.

Better yet, would the health or parks department have some sample language you might borrow? I'm sure they have similar rules for public pools. Just try it and see what happens. Don't worry about the people threatening to sue - if they do, you can present all the research they did vs. their statement from one pediatrician and let a judge decide. By the time all this comes to pass, the kid will likely be toilet trained and ready for kindergarten anyway!

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

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