This article addresses common issues related to community barbecue and pool use and how an association can ensure its rules provide for community needs while still complying with various federal, state, and local laws. Specifically, for barbeque rules, the discussion will serve up issues relating to safety and nuisance concerns. For pool facility rules, the article will dive into legal waters pertaining to animal and age restrictions.

Community Grill and Fire Pit Rules

Particularly common during the summer months, many boards and managing agents are asked whether their condominium association permits use of personal BBQs and grills on patios or balconies or whether members are able to install propane-operated fire pits in their backyard for outdoor enjoyment.

Associations should carefully consider adopting comprehensive policies to regulate fire pits and other open-flame devises, such as charcoal burners and gas grills, in order to address specific safety concerns and the risk of potential damage to the surrounding property. Boards should consider items such as flame height, size of the grill or other device, and the intended location, including the proximity to nearby homes, bushes, or trees. Fires originating in one condominium can quickly spread to another.

One of the starting points for evaluating community rules in this area is the California Fire Code. Section 308.1.4 of the Code imposes specific restrictions on BBQ grill use. Specifically, open-flame devices (including charcoal and propane grills) are prohibited on “combustible balconies,” such as wood decks that can easily catch and spread fires. Section 308.1.4 also imposes a clearance of 10 feet between active grills and other combustible construction materials. Notably, since many condominium balconies or porches might not extend this far, getting away from a unit wall with certain siding might be impossible.

The Fire Code provides exemptions for certain dwellings, such as structures “where buildings, balconies, and decks are protected by an automatic sprinkler system.” Additionally, electric grills or small cooking devices that use a liquid propane (“LP”) gas cylinder with a capacity less than a nominal pound (16.4 oz) may also be exempted.

While at a minimum, associations should require members to adhere to federal, state, and local regulations, boards should also examine their governing documents and consult with legal counsel to determine whether additional restrictions might need to be adopted to reduce potential fire hazards and nuisances while still allowing owners fair use of their properties.

For those communities where the properties might permit installation of fire pits or other open-flame devices (i.e., not on combustible balconies), additional specifications that boards might consider include:

• Requiring advanced approval from the board or architectural committee before any installation or use.

• Reserving the right to prohibit any type of BBQ, grill, or devise that the board deems a nuisance or potential liability or fire hazard.

• Restricting usage to ground-level patios and placing limitations on height, width, or depth of the devices.

• Specifying the power or heat source as only natural gas or propane and prohibiting members from burning charcoal, wood, or using fire accelerants of any kind.

• Ensuring proper installation to guard and protect the flame from wind or other natural elements,

• Requiring that propane fuel tanks be stored safely (i.e., not inside a residential unit) and prohibiting large capacity containers from being transported through enclosed common areas, such as elevators, stairs, or hallways.

Ultimately, boards will need to find a careful balance between what certain members might want to do as part of their own summer enjoyment, and what restrictions might be necessary to address safety concerns for the whole community. By implementing clear policies that are aligned with local regulations and state fire codes, associations should be able to better mitigate risks and promote harmonious living within their communities.

Community Pool Rules

For common area facilities, such as a community pool, all associations must comply with the Fair Housing Act (“FHA”), which is a federal statute that prohibits housing discrimination based on race, color, religion, sex, national origin, familial status, or disability. 42 U.S.C. §§ 3601-3619. Discrimination under the law includes “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling,” 42 U.S.C § 3604(f)(3)(B). The California equivalent, the Fair Employment and Housing Act (“FEHA”), also prohibits discrimination based on physical disability, mental disability, or age as being against public policy, Gov. Code §§ 12927(c)(1) & 12955. Pool facility rules must not discriminate against homeowners, residents, tenants, and guests’ familial status, age, or disability (in addition to the other codified protections). Boards commonly need to exercise caution when adopting pool rules in two specific areas: (1) relating to the right to bring assistance animals into the pool facility, and (2) improperly linking restrictions to an individual’s specific age.

Pool Rules Contain “No Pets Permitted” Language? Need to Revise.

If the current pool rules prohibit owners and residents from bringing all “pets” into the pool facilities, the association may need to consider a revision. The FHA and FEHA protect assistance animals used by those with a defined disability. There are two types of assistance animals: (1) a service animal, which is any dog that is individually trained to perform specific tasks for the benefit of an individual with a disability, and (2) other animals that do work, provide assistance, or provide therapeutic emotional support (i.e., an “emotional support animal”).

If an animal meets the definition of a “service animal” for someone with a disability, the animal must be permitted within the pool area under the FHA and FEHA. Such animals are not considered “pets” under the law. Similarly, Civil Code § 54.2(a) states that “[e]very individual with a disability has the right to be accompanied by a guide dog, signal dog, or service dog, especially trained for the purpose….” Thus, boards should not draft community rules in a manner that would prohibit service animals from entering the pool area.

Additionally, under the FHA and FEHA, a resident may submit a “reasonable accommodation” request for an emotional support animal to enable the disabled individual to take their assistance animal into the pool area. In response, boards and legal counsel must then engage in a timely, case-by-case interactive process to evaluate whether the assistance animal may be necessary for the individual to use or enjoy the pool facilities to the same extent as other residents. For this reason, community rules should not explicitly prohibit comfort or emotional support animals from being allowed within the pool facility.   

Pool Rules Cite to a Child’s Specific Age? Need to Revise.

If current pool rules expressly state that no child under a certain age is permitted within the facilities unless accompanied by an adult, boards should consider a revision as several lawsuits have successfully challenged similar swimming pool rules on the basis that they constitute discriminate on the grounds of “familial status” (or treating families with children less favorably than adult-only households). In Pack v. Fort Washington II, 689 F.Supp.2d 1237 (E.D. Cal. 2009), an apartment building’s rules, which required children under age 14 to be supervised by parent or legal guardian while using the pool and spa (and prohibiting children under age 12 from using the pool table) were found to be in violation of both the FHA and FEHA.

In 2019, the California Department of Public Health revised the applicable portion of the Building Code to remove the reference to a specific age in required “No Lifeguard” pool signs. The Code now states: “Children should not use pool without adult supervisions.”

Associations should consider crafting pool and clubhouse rules based on behavior rather than personal characteristics. In Iniestra v. Cliff Warren Investments, 886 F.Supp.2d 1161 (C.D. Cal. 2012), the court rejected an argument that a rule requiring children to be supervised by a responsible adult at all times was justified solely by safety concerns, noting that it was possible for younger children to be better swimmers than older adults. Rather than imposing age-specific restrictions, rules can focus on eliminating dangerous conduct such as “No running on the pool deck.” Instead of requiring children that are 3 or under to wear swim diapers, boards should consider applying that requirement to “all incontinent individuals.”

There are certain and limited instances where an association may adopt and enforce rules that include age-based restrictions. In California, Civil Code § 51.3 legalizes senior communities, and Government Code § 12955.9(a) provides that prohibitions regarding discrimination on the basis of familial status do not apply in retirement communities. Senior communities are similarly exempt from the Fair Housing Act’s prohibition against discrimination against children by the Housing for Older Persons Act (HOPA). As such, associations that meet the statutory requirements to qualify as a senior community may adopt restrictions on children using recreational common areas, including the pools, that other associations cannot. 

How to Implement the Above Recommendations?

Associations can work with legal counsel to review their current rules and determine whether restrictions pertaining to barbecues, fire pits, or pools need to be amended or revised in accordance with common use practices, community safety concerns, or federal and state laws. Remember that in most circumstances, before adopting or amending an association’s operating rules, boards must provide members with written notice and allow 28 days for comments. Begin this process now so that necessary rules can be in place to ensure that your community’s summer activities are safe, accommodating, and most importantly, a fun experience for all.