Did you know that both Florida and federal laws prohibit discrimination in housing against families with children under 18?
The Fair Housing Act is a federal law that prohibits discrimination in the sale or rental, or in the terms, conditions, or privileges of a dwelling on the basis of impermissible characteristics, including on the basis of familial status (i.e., families with children under the age of 18). 42 U.S. C. 3601, et seq. In addition to making it illegal for providers of housing to deny housing to families with children, the law also prohibits providers from adopting and/or imposing special rules and regulations on tenants with custody of children. In other words, a housing provider (which include: landlords, homeowners associations, among others) cannot make rules that unfairly affect families with children. In the majority of cases, with some exceptions[1], it is illegal for a landlord or a homeowners association to deny or unduly limit the use of facilities based on familial status. 42 U.S.C. 3604(b).
For example, it is illegal for planned communities to have in place rules that prohibit children from playing, making noise or running in the common areas or that prohibit children from using the pool. The only recognized exception to the aforementioned rule is when the rule in question is “motivated by concerns for the health and safety of the residents.” The Department of Housing and Urban Development (HUD) v. Paradise Gardens, (1192 WL 406531).
In Paradise Gardens a Florida administrative law judge decided that the community association’s rules limiting the swimming pool use by children were on its face discriminatory and that there were no legitimate healths or safety reasons for their existence. In the above case, children under 5 years of age were completely banned from using the pool allegedly because of safety and sanitary reasons. That argument was rejected based on the testimony of an environmental specialist who established that the sanitary conditions of a pool are unrelated to the age of the swimmers. In addition, in relation to the safety argument raised by the association, it was established that the best protection against drowning is eye contact supervision and therefore the use of the pool by children should not be denied. As for the restriction on the use of the pool for children 5 to 16 years olds between certain hours of the day, the administrative judge ruled that the restrictions were actually intended to keep children from the pool completely. HUD v. Paradise Gardens, supra.
It should be pointed out that the purpose behind the enactment of the Fair Housing Act was not to ban the ability of landlords or other property managers to implement rules relating to the use of the facilities for health and safety reasons. Therefore, for example, a rule that requires adult supervision of children 14 and under when swimming in the pool should be recognized as reasonable and upheld. Another example of a rule that should be considered reasonable is one in which any one who is incontinent or no fully potty trained is required to wear waterproof clothing when entering the pool.
If an administrative law judge or a federal court judge founds that a violation of the Fair Housing Act has been committed damages and civil penalties against the respondents or defendants could be imposed.
Both the State of Florida Fair Housing Act and the Palm Beach County’s Fair Housing Ordinance mirror the federal Fair Housing Act.
Individuals who believe that they have been victims of housing discrimination can call the Housing Discrimination Tip Line at 1-800-896-7743 or email the Justice Department at fairhousing@usdoj.gov.
[1] The only exception in which children can be excluded is when the community is a retirement community officially designated as “Over 55” or “Senior Housing”.
