United States District Court, Southern District of Florida, decision (October 1, 2015).

In this action, the Fair Housing Center of the Greater Palm Beaches, Inc. (“Plaintiff”) alleged that the Defendant Homeowners Associations (“Association”) had policies and practices that discriminated against children in violation of the federal Fair Housing Act (“FHA”) and corresponding Florida state statutes. Association had Rules and Regulations that: (i) included a “Loitering Rule” that prohibited loitering (congregating on the streets of the development) at any time; and (ii) a “Curfew Rule” that persons under the age of 18 must be in their home or on their patio after sunset.

In considering the case, the Trial Court stated that establishing intentional discrimination under the FHA requires a showing that a protected group has been subjected to explicitly differential, or discriminatory, treatment. Applying said standard, the court found that because Association’s Loitering and Curfew Rules imposed restrictions on all children that treated them differently from adults, there was evidence of intentional discrimination against children that required Association to show that it had a legitimate, non-discriminatory justification for the challenged policy.

Association argued that the policies and practices(Loitering and Curfew Rules) were justified by safety and crime prevention concerns but the Court rejected the argument and found that those justifications were not legitimate because they were premised on the assumption that the concept of “safety” could be invoked for the intangible purpose of general crime prevention, as opposed to a tangible dangerous condition such as a pool. The Court stated that it could not sufficiently evaluate the legitimacy of an intangible goal of general crime prevention. Such an evaluation would require concrete evidence of statistics or arrest records showing that children in the community were so heavily predisposed to crime that mass confinement of those children was in response to a legitimate safety concern. As additional support for its decision the Court also found that: (i) Association failed to demonstrate how a 17 year old needs to be confined in their home to avoid being injured; and (ii) the policies and practices were based on an assumption that children had a propensity to commit criminal acts and that the children’s parents were not capable of properly supervising their outside activities.

See case decision: Fair_Hous._Ctr._of_the_Great