Community Associations Can Sink or Swim Based on Their Rules and Regulations Related to Children and Swim Diapers

Community Associations Can Sink or Swim Based on Their Rules and Regulations Related to Children and Swim Diapers

By JoAnn Nesta Burnett / Published April 2022

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In January 2022 a Florida couple, Jack and Simone Yeager, who own a home in a Boynton Beach country club, in conjunction with their adult son, David Yeager, and his wife, Nicole Fisher, filed a lawsuit against a South Florida property owners association for allegedly discriminating against them based upon familial status. The complaint alleges that on December 13, 2018, David and Nicole brought their 19-month-old daughter donning a swim diaper to the association’s community pool. They were approached by an association employee who advised that their daughter was banned from swimming in the pool and was relegated to the “kiddie pool” due to a rule prohibiting children from wearing swim diapers in the pool. The case was originally filed in state court but was removed to federal court where it remains pending. It should be noted that there is no recitation of the alleged rule in the complaint or in the pending motion to dismiss the complaint, so it is unclear what the language of the rule actually states or prohibits. 

     The family alleges the rule amounts to familial status discrimination. Familial status is one of the protected classes under the federal and Florida Fair Housing Acts, as well as local ordinances. Familial status addresses families with children under the age of 18 and applies to any person who is pregnant or is in the process of securing legal custody of a minor child (including adoptive or foster parents). That means that rules that target children and/or their conduct may be considered discriminatory. There are cases that have held that rules banning children who wear swim diapers from swimming in a community pool are discriminatory because they are not the least restrictive means for accomplishing the goal. 

     Rules should be evaluated based upon the desired outcome. If keeping the pool free from urine is the goal, all incontinent persons should be treated the same. Children should not be targeted. A rule that requires all incontinent persons to wear a swim diaper is facially neutral and does not disparately impact families with children because it applies equally to all incontinent persons. Equally important is the fact that there are cases that have held that banning people wearing swim diapers from the pool altogether is discriminatory because it is not the least restrictive means of achieving the desired goal. Courts have found that swim diapers are sufficient to prevent leakage into a pool. Accordingly, a ban on swim diapers in the pool will likely result in a discrimination claim. If the association referenced above has a rule banning children from wearing swim diapers in the community pool and instead requires children wearing swim diapers to use the “kiddie pool,” it will likely be deemed discriminatory, absent a procedural or technical issue involved in the lawsuit. 

     In reviewing the pleadings in this case, the association is claiming the plaintiffs’ claims fail because the statute of limitations had run out. There is a two-year statute of limitations on discrimination claims under the federal and Florida Fair Housing Acts. The statute of limitations is tolled while a HUD complaint is being investigated and pending. The plaintiffs filed a HUD complaint prior to filing suit. The parties have each taken conflicting positions concerning the proper manner in which to calculate the tolling period. The plaintiffs have taken an approach that will extend the filing period, while the defendant has taken an approach that reduces the filing period.  The parties also have differing opinions on whether a familial status claim requires that the child be “domiciled with” a parent or guardian in order to have standing to bring a familial status discrimination claim. 

     The Fair Housing Act, at 42 U.S.C. 3602(k), defines familial status as the following:

          Subsection (k): “Familial status” means one or more individuals (who have not attained the age of 18 years) being domiciled with:

  1. a parent or another person having legal custody of such individual or individuals; or
  2. the designee of such parent or other person having such custody, with the written permission of such parent or other person. The protections afforded against discrimination on the basis of familial status shall apply to any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of 18 years.

     The association argues that the plaintiffs lack standing to bring this claim because the child is not domiciled with the grandparents and was visiting. The plaintiffs argue in response that a broader definition of the term “family” should be employed to bring this claim within familial status class protection. It will certainly be interesting to see how this case is eventually decided and whether the court will reach the fundamental issue concerning the language of the rule or whether a procedural issue will sink the plaintiffs’ swim attire lawsuit. 

     This case is a reminder to associations to be vigilant about reviewing their governing documents to remove any provisions, restrictions, or rules that target children directly or disparately impact families with children. Even facially neutral restrictions and rules can disparately impact families with children. Revise the governing documents so your association does not end up sinking in the deep end of the discrimination pool.

JoAnn Nesta Burnett

Attorney, Becker

     Ms. Burnett concentrates her practice in state and federal appellate practice and procedure, complex commercial and civil litigation including Fair Housing discrimination, association litigation, and general business litigation. Ms. Burnett has represented numerous association clients in defending discrimination complaints based upon alleged fair housing violations before local, county agencies and in state and federal court. Ms. Burnett has extensive experience in representing association clients in covenant enforcement cases in arbitration and state court proceedings. Additionally, Ms. Burnett has experience with collections and foreclosures. For more information, visit