Cities May Restrict ‘Tot Lot’ Use On Playgrounds To Young Children; Age Restrictions Not A Violation Of Constitutional Protections

At issue in this California Attorney General Opinion is whether a city ordinance may limit the use of play equipment designed for small children located in an area of a city park known as a “tot lot.” The Attorney General concluded that barring older children and adults from using the equipment – and possibly damaging it – was a legitimate exercise of city authority (Attorney General Opinion 05-303, April 28, 2006)

Facts

The Attorney General was asked whether a city ordinance could limit the use of so-called “tot lots” to children aged five and under. The request was based on a proposed Sacramento city ordinance intended to “protect small children using the tot lot from injury that might occur. . .should older children or adults use or damage the play equipment that is located there.”

The proposed ordinance includes the city council’s finding that improper use of such facilities “causes excessive damage to public recreational facilities and hinders those who wish to use the facilities for their intended use.”

Attorney General Opinion

In analyzing pertinent laws and court decisions, the Attorney General noted that Public Resources Code section 5193 authorizes a board of park commissioners to “pass and adopt ordinances which are necessary for the regulation, use, and government of the parks and grounds under its supervision, not inconsistent with the laws of the State.” (People v. Trantham (1984) 161 Cal.App.3d Supp. 1, 13). He also noted that the California Supreme Court has concluded that a city “not only has the power to keep its streets and other public property open and available for the purpose to which they are dedicated, it has a duty to do so.” (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1109).

Furthermore, the Attorney General concluded, the “general authority” of cities and counties to adopt local ordinances and regulations is described in Section 7 of Article XI of the state Constitution: “A county or city may make and enforce within its limits all local, police, sanitary and other ordinances and regulations not in conflict with general laws.” That authority is commonly referred to as “police power,” is limited to the jurisdiction’s boundaries and is subordinate to state law.

The Attorney General concluded that limiting use of the “tot lot” facilities to young children is consistent with state law requiring playground operators – including local agencies – to impose guidelines for the use of playgrounds that are “at least as protective” as the guidelines in the Handbook for Public Playground Safety produced by the U.S. Consumer Products Safety Commission. (Health & Saf. Code, section 115725).

Addressing whether the ordinance would violate the equal protection rights of those excluded from using the facilities (individuals over five years old), the Attorney General found that age is not recognized as “a suspect classification” – such as race or national origin — under either the U.S. or California Constitutions, “nor has it ever been held that all individuals have some constitutional right to enter into and use facilities designed for the use of a particular segment of the population (Burnett v. San Francisco Police Dept., supra, 36 Cal.App.4th 1177, 1189).

“Restricting the use of the tot lot playground equipment to young children,” the Attorney General concluded, “is rationally related to the legitimate purpose of best maintaining the equipment for its intended use.”

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