Legal Question in Disability Law in California

We live in a homeowner's association that recently prohibited all wetsuits from the pool area. I put wetsuits on my kids because they both have low BMI and shiver and get blue/purple lips rapidly. I tried reasoning with the board of directors at a meeting to allow kids to wear wetsuits for warmth. They ignored my pleading and enstated the rule.

I'm getting a note from the pediatrician to help my case. Also, I've read the by-laws which say that the rules must not discriminate among the Owners.

I believe that the prohibition of wetsuits from the pool area discriminates against kids with low BMI.

I will try reasoning more with the board members with the additional information from the pediatrician. If they don't accomodate, I was thinking of taking the association to small claims with the cost of joining an outside swim club as the damages as their newly implemented rule discriminates against my low BMI kids.

Please let me know if I have a reasonable case in court if it needs to go that far. Thanks!


Asked on 6/22/10, 6:46 am

1 Answer from Attorneys
Michael Schulte

Well...

The first question I found myself asking about your issue is "why would you want to bring a lawsuit against the association?" If you think that the rule is improper, and that you have a valid reason (health issues), then wear the wetsuits.

I would start with a letter to the association informing them that you will be wearing the wetsuits, the purpose for wearing the wetsuits, the doctor's recommendation, and that you believe, in good faith, that the anti-wetsuit rule, if enforced against your children, would be discriminatory under the circumstances, and in violation of the bylaws. Make sure to mail the letter with proof of mailing. Then, make it their problem. If they don't enforce the rule after that, you don't need to do anything. If they come after you legally, it is their burden of proof, not yours. I don't think you will need to go on the offensive. A good defense is all you should need here.

One thing though... what is their purpose for the no wetsuit policy? The association can make reasonable rules regarding health, welfare, etc. But, cannot enforce rules which are either discriminatory in their effect, or motivation.

Oh, maybe the best advice I can give you is to stop trying to "reason" with the Board. If it's in the bylaws and is not discriminatory, then they can do it. If not, then slap them in the face (figuratively, of course) and walk away. But, don't bother reasoning with those people. What's the point?

Good luck.

- Mike

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Answered on 6/23/10, 10:53 pm


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