SWIMMING POOL SAFETY AND DISCRIMINATION

Anti-Entrapment Drains Required

Drowning is the second leading killer of children under the age of 14. One cause is the suction of pool/spa drains for circulating and filtering water. The suction is powerful enough to trap a child underwater until he/she drowns.

Federal Law. The Virginia Graeme Baker Pool and Spa Safety Act requires the installation of anti-entrapment drain systems in public pools. This includes pools open to members of an organization and their guests, i.e., homeowners associations. The U.S. Consumer Product Safety Commission staff prepared a document that spells out the technical requirements of the Act.

State Law. To comply with the Federal Pool and Spa Safety Act, California amended Section 18942 of, and added Sections 116064.1 and 116064.2 to, the Health and Safety Code to require that swimming pools constructed before January 1, 2010, be properly retrofitted with anti-entrapment devices by no later than July 1, 2010. No further retrofitting is required for swimming pools that completed such a retrofit between December 19, 2007, and January 1, 2010, if the retrofit complied with the Virginia Graeme Baker Pool and Spa Safety and if the association files a proper statement of compliance with California’s Department of Public Health before September 30, 2010.

Pool Covers

There are significant benefits to associations that cover their pools at night. The primary benefits of pool covers are that they:

• save water by reducing the evaporation of water, and
• reduce energy costs by reducing heat loss by up to 90%.

Types of Covers. There are three kinds of pool covers: tracked, anchored, and floating, each with different safety regulations. "Floating covers" seem to cause the most concern. Since they are designed to float on the water, they can collapse under the weight of a child, allowing the child to become trapped under the cover and drown. As a result, pool covers are regulated.

Regulations. Orange County, for example, allows floating pool covers under the following conditions:

• An approved fence or enclosure must segregate the pool from all dwelling units.
• The pool is supervised by responsible persons who have sole access to the pool area when it is not open for use.
• The pool area must be locked to prevent pool use when the cover is placed on the pool water.
• The pool may not be reopened until the responsible person removes the pool cover and properly stores it.
• When not in use, the pool cover must be rolled up and stored at least four (4) feet from the pool.

Associations with pool covers should check the regulations in their counties.

Insurance Issues. Insurance carriers are concerned with pool safety, and that includes making sure pool covers are properly installed and regulations followed, pools are fully fenced with self-closing/locking gates, pool rules are in the open, depth markers are clearly marked on the top deck (not on the inside of the pool), a shepherd’s hook and other general life safety equipment is readily available and the pool drain has been approved per the Virginia Graeme Baker Pool and Spa Safety Act.

Recommendation: Associations that want to install a pool cover should:

• Contact their insurance broker to make sure there aren't any policy exclusions related to pool covers;
• Obtain approval from appropriate regulatory agencies;
• Follow applicable safety regulations;
• Hire licensed, experienced pool operators to maintain your pool and equipment; and
• Have their insurance carrier inspect the pool and then implement any safety recommendations the carrier makes.

Pool Fencing and Gates

Drowning is the number one cause of accidental death for children under the age of five in California. Even though an association's pool may have originally been built without fencing, it needs to be installed. Each county may have specific pool fence requirements, but all residential pools must have pool fencing. Fences need to be 5 ft tall with gaps between fence slats of 4″ or less and gaps of 2″ or less under the fence. Gates must be self-closing and self-latching. (See Swimming Pool Safety Act.) Recommendation: Associations should have their pools inspected for proper fencing, gates, and signage. All safety requirements must be complied with, and a written record of the inspection should be kept on file.

Disabled Pool Access

ADA regulations require that public swimming pools have a second means of access, such a lift or ramp, for the disabled. This requirement does not apply to HOA swimming pools unless the association has opened its pool to the public.

When ADA Compliance is Required. If an association rents its pool facilities to the public, such as for weddings, parties, etc., it will need handicap access at least for the duration of the event. That can be accomplished with a portable chair lift. If guests are not using the pool, other facilities such as bathrooms may need to be modified for handicap access under other provisions of Title III. If an association rents its facilities to members only, ADA requirements do not apply. Because association residents are allowed to invite guests without triggering "public accommodation" ADA rules, does that apply to "guest" swim teams? Some argue that a swimming competition event in the association's pool is private because only invited guests can attend the event. The general public is not invited. A counter-argument can be made that swim meets are "public" events because those attending the event (swimmers, coaches, family members and other spectators) are not all known to members of the association--many or most of them are strangers. The public event argument is much stronger if attendees are charged a fee. (Carolyn v. Orange Park.) A case that addresses the issue of public versus non-public facilities is Jankey v. Twentieth Century Fox.

Request for Accommodation. If a request for accommodation is raised by a handicapped resident, boards should seek legal counsel and consider ways to reasonably accommodate the request. The same is true for swim meets. Even if disability issues have not yet been raised, boards should budget for and make facilities ADA compliant whenever possible. Advocates for the disabled and their lawyers tend to be aggressive, and fighting over such issues can be expensive. It may be less expensive to make amenities handicap accessible than to spend money on lawyers.

Animals in the Pool Area

EXCEPT for service animals, associations can prohibit animals from pool areas. If someone is blind and needs their guide dog to safely maneuver to a lounge chair, the association cannot prohibit the dog. An animal in the water is a different matter. According to the ADA's website, the ADA does not override public health rules that prohibit dogs in swimming pools. However, service animals must be allowed on the pool deck and in other areas where the public can go. If someone legitimately needs the emotional support of a comfort animal to use the pool, the animal can be brought into the pool area but not the pool itself. Only service animals properly trained to assist a disabled person in swimming can go into the water. Even so, reasonable restrictions may be imposed regarding the protection of pool filters from animal fur and proper sanitation.

Chemical Testing

Daily Testing. The California Department of Health has defined HOA pools as “public pools.” As such, they must meet higher chlorine levels. Associations must keep a test kit at the pool site and test the water daily. Small associations are exempt from the daily testing if they have 24 or fewer separate interests.

Written Records. Health regulations now require that various written records be kept onsite and must be preserved for at least two years. They include the following:

• chemical testing
• incidents of fecal, vomit, and blood contamination
• incidents of drownings or near drownings
• maintenance and repairs
• manufacturer’s instructions for the operation of all mechanical and electrical equipment and water treatment systems

Reporting Requirements. Associations must report incidents where two or more pool users or lifeguards have diarrhea within five days of each other.

Pool Signs

The California Building Code (CBC) requires many signs of many types depending on your facilities. Although some of these requirements mention “public pools,” for the purpose of these signs, “public pools” include those located in a “condominium, townhouse, homeowner association, club, community building or area.” (CBC § 3101B.) The sign requirements under the CBC are:

• General. All signs shall have clearly legible letters or numbers not less than 4 inches (102 mm) high, unless otherwise required in this section, affixed to a wall, pole, gate, or similar permanent structure in a location visible to all pool users. (CBC § 3120B.1.)
• Artificial Respiration and CPR. An illustrated diagram with text at least 1/4 inch (6 mm) high of artificial respiration and CPR procedures shall be posted. (CBC § 3120B.5.)
• Diarrhea. A sign in letters at least 1 inch (25 mm) high and in a language or diagram that is clearly stated shall be posted at the entrance area of a public pool which states that persons having currently active diarrhea or who have had active diarrhea within the previous 14 days shall not be allowed to enter the pool water. (CBC § 3120B.11.)
• Direction of Flow. (CBC § 3120B.17.) The direction of flow for the recirculation equipment shall be labeled clearly with directional symbols such as arrows on all piping in the equipment area. (CBC § 3120B.17.1.) Where the recirculation equipment for more than one pool is located on-site, the equipment shall be marked as to which pool the system serves. (CBC § 3120B.17.2.) Valves and plumbing lines shall be labeled clearly with the source or destination descriptions. (CBC § 3120B.17.3.)
• Emergency. The emergency telephone number, 911, the number of the nearest emergency services, and the name and street address of the pool facility shall be posted. (CBC § 3120B.6.)
• Emergency Shut-Off. In letters at least one inch (25 mm) high a sign shall be posted at the spa emergency shut off switch stating, “EMERGENCY SHUT OFF SWITCH.” (CBC § 3120B.8.)
• Exit. Where automatic gaseous chlorine chemical feeders are used, a sign shall be posted at the pool area entrance, which shows an emergency evacuation procedure in diagrammatic form. Designated emergency exits shall be marked “EXIT.” (CBC § 3120B.14.)
• Gaseous Oxidizer. Where automatic gaseous chlorine chemical feeders are used, a warning sign with the appropriate hazard identification symbol shall be posted on the exterior side of the door entering the chemical feeder room or area. The sign shall state, “DANGER: GASEOUS OXIDIZER - (specific chemical name),” or as otherwise required by the California Fire Code. (CBC § 3120B.15.)
• Keep Closed. A sign shall be posted on the exterior side of gates and doors leading into the pool enclosure area stating, “KEEP CLOSED.” (CBC § 3120B.10.)
• Spa Pool. The pool user capacity of a spa pool shall be based on one pool user for every 10 square feet (0.929 m2) of pool water surface area. (CBC § 3120B.2.1.)
• Other Pools. The pool user capacity for all other pools shall be based on one pool user for every 20 square feet (1.858 m2) of pool water surface area. Exception: Pool user capacity requirements do not apply to wading pools or spray grounds. (CBC § 3120B.2.2.)
• No Diving. Signs shall be posted in conspicuous places and shall state, “NO DIVING” at pools with a maximum water depth of 6 feet or less. (CBC § 3120B.3.)
• No Lifeguard. Where no lifeguard service is provided, a warning sign shall be posted stating, “WARNING:NO LIFEGUARD ON DUTY.” The sign also shall state in letters at least 1 inch (25 mm) high, “Children under the age of 14 shall not use pool without a parent or adult guardian in attendance.” (CBC § 3120B.4.)
• Warning for Spa Pool. A warning sign for spa pools shall be posted stating, “CAUTION” and shall include the following language in letters at least 1 inch (25 mm) high:
  • Elderly persons, pregnant women, infants and those with health conditions requiring medical care should consult with a physician before entering the spa.
  • Unsupervised use by children under the age of 14 is prohibited.
  • Hot water immersion while under the influence of alcohol, narcotics, drugs or medicines may lead to serious consequences and is not recommended.
  • Do not use it alone.
  • Prolonged exposure may result in hyperthermia, nausea, dizziness, or fainting. (CBC § 3120B.7.)
• No Use After Dark. Where pools were constructed for which lighting was not required, a sign shall be posted at each pool entrance on the outside of the gate(s) stating, “NO USE OF POOL ALLOWED AFTER DARK.” (CBC §3120B.9.)
• Wave Pools. A sign in letters at least 1 inch (25 mm) high shall be posted that describes the requirements for wave pools as described in Section 115952, Health and Safety Code. (CBC § 3120B.12.)
• Spray Ground. A sign shall be posted at each spray ground and be visible from any part of the spray ground that states, “CAUTION: WATER IS RECIRCULATED. DO NOT DRINK.” (CBC § 3120B.13.)
• Turn On Before Entering. Where automatic gaseous chemical feeders are used, a sign shall be posted at the switch to the light and ventilation system for the gaseous chemical feeder room stating, “TURN ON BEFORE ENTERING,” or as otherwise required by the California Fire Code or the California Electrical Code. (CBC § 3120B.16.)
• User Capacity. A sign shall indicate the maximum number of pool users permitted for each pool. (CBC § 3120B.2.)

Recommendation: Make sure you check with appropriate agencies to ensure you have the most up-to-date signage.

Pool Volunteers

There is always potential liability whenever volunteers are involved in any HOA activity. If volunteers watch the kids and a child drowns, the lawsuit would say something to the effect that, “The association had volunteers watching my children and, but for their negligence, my child would not have drowned.” However, forbidding people from volunteering has its own risks. In the event a child drowns, the lawsuit would now read: “My child would not have drowned if you had not forbidden people from volunteering to watch him!“ Lawyers can spin a tragedy any way they want. Since associations cannot entirely insulate themselves from potential litigation, boards must make a business decision as to which course of action produces the least risk. If children are out of control and there is a foreseeable risk of injury, allowing volunteers to monitor the pool may be the better course of action because it lowers the risk level. In addition, there should be signage for “No Lifeguard on Duty” and notices in newsletters that parents must provide responsible supervision of their children at the swimming pool.

Recommendation: Boards should work with the association's insurance agent and legal counsel regarding this issue. The association is in a much better position to defend itself if it can show that the pool is regularly inspected and maintained, that all safety equipment is in place, that proper signage is posted, and that rules are enforced. If an association opts for volunteers to help in that effort, they should make sure they are covered by the association’s insurance.

Spas, Hot Tubs, and Jacuzzis

Associations may adopt rules prohibiting young children from using the association's hot tub/spa. Even though discriminatory, there is a valid health reason for the restriction. Per California regulations, a spa's water temperature may not exceed 104 degrees. A spa's high temperatures are known to have adverse health effects on infants and toddlers.

Danger of Over-Heating. Infants and young children are more susceptible to overheating than adults and should not be exposed to a spa's high temperatures. Spa manufacturers frequently provide age limit restrictions and temperature ranges in their literature. If boards adopt restrictions per the manufacturer's guidelines, they can defend against complaints of discrimination.

Children Under Five. Generally, children 5 years old and under should not be allowed to use a whirlpool/hot tub/spa, even with adult supervision. Children between the ages of 6 and 12 should always have an adult when using the facilities. Older children using hot tubs should not soak for more than 5 to 10 minutes at a time. Prolonged exposure to hot temperatures can lead to dehydration, dizziness, and nausea.

Recommendation: Associations should regularly inspect and maintain their spas using a licensed and insured vendor. They should also verify temperature requirements since statutes change from time to time. Finally, they have their spas inspected for proper safety equipment.

Discrimination Against Children

Except for senior community pools, associations cannot prohibit children from using swimming pools, establish adults-only pools, or establish adults-only times. In Llanos v. Coehlo, a federal court found that the association's rules designating "family pools" and "adult areas" in the complex and prohibiting children from playing in and around adult areas of the complex were discriminatory and violated the Fair Housing Act. (Also see U.S. v. Plaza Mobile Estates.)

A similar decision was reached by a federal court in the unpublished case of Landesman v. Keys Condominiums. The association's reason for restricting children from the main pool was that adults enjoyed using the pool for lap swimming and they preferred the relative tranquility of a swimming pool not filled with active, noisy children. Although sympathetic, the court ruled against the association.

The court is not unsympathetic to the concerns of the adult residents who want to be able to enjoy the pool in peace, but finds that plaintiffs have nonetheless established a prima facie case of discrimination and that The Keys Association has not articulated a legitimate justification for excluding children from the main pool. . . . If this were a case of a homeowners association allowing everyone to use the main pool at all available hours in the summer, with the exception of women, or persons born in Iraq or China, or members of the Episcopal Church, such restrictions would be equally unlawful as the restrictions on access by children. . . . Any problems The Keys Association believes are caused by noise or activity of certain children should be taken up with the parents or guardians of those children.

Rules considered discriminatory:

• Age Restrictions. Forbidding children under 18 from using the swimming pool without an adult. The restriction is too broad and would create a situation where a 17-year old certified life guard could not swim alone. A more defensible age restriction is 14 since the California Building Code §3120B.4 states:
• Where no lifeguard service is provided, a sign shall be posted stating, "NO LIFEGUARD ON DUTY." The sign also shall state in letters at least 1 inch (25 mm) high, "Children under the age of 14 should not use pool without adult supervision."
• Parental Supervision. Requiring "parental" supervision. Supervision cannot be restricted to a parent; any responsible adult can supervise children. The following pool restriction found in many association rules would be struct down as discriminatory:
• Children under the age of 18 are not allowed in the pool or pool area at any time unless accompanied by their parents or legal guardian. 
• Toilet Trained. Prohibiting all non-toilet trained children from using the swimming pool. (A rule that prohibits all incontinent persons from using the pool would accomplish the same result without being discriminatory.)
• Baby Strollers. Prohibiting baby strollers, walkers and playpens from the pool area discriminates against families on its face. (A rule that allows only lounge chairs in the pool area might be acceptable.)
• Gender Discrimination. Associations cannot segregate pool swim times based on gender since it amounts to sex discrimination in violation of the Federal Fair Housing Act. (Curto v. Country Place.)
• Other. See DFEH letter regarding discrimination against children.

Case Law. Some additional cases that address discrimination against children include the following:

• DFEH v. Hacienda de Camarillo Apartments, (1988). FEHC ordered the apartment complex (with three sections--families, adults and seniors) to cease and desist its age discrimination restrictions (children could not visit the "senior" pool) and to post notices against age discrimination.
• DFEH v. Hans Sheik (1993). FEHC ordered landlord to cease and desist discrimination in not renting a house to a family with three minor children.
• HUD v. Paradise Gardens HOA (1992 WL 406531). The association prohibited child under the age of 5 from using the pool and restricted children ages 5 to 16 to using the pool from 11 a.m. to 2 p.m. The purpose of the rules was to promote sanitary and healthy swimming facilities. The rules discriminate against families with children and violate the Fair Housing Act since there are no discernible differences in the amount of fecal material in adult-only swim facilities and all-age swim facilities. The association was fined $7,000.
• Iniestra v. Warren (2012).  Safety is not a valid reason for requiring supervision of minors using pools since children may be better swimmers than adults. Decorum is also not a valid reason. Requiring adult supervision is unlikely to make children less noisy. The desire for peace and quiet may be a worthy goal for a community association, but it “is not a justification for denying access to common facilities on the basis of familial status.”
• Leonard v. Seaboard Arbor Management Services, Inc. (HUD ALJ 04-91-0931). The judge required the association to change its rule prohibiting all babies and children not fully potty trained from entering or being carried into the pool, to the following: "Any person who is incontinent or not fully potty trained must wear appropriate waterproof clothing when entering or being carried into the pool."
• Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721. The California Supreme Court held that a landlord's exclusion of all families with minor children as tenants from an apartment complex was impermissible under the Unruh Act.
• O'Connor v. Village Green (1983) 33 Cal.3d 790. The California Supreme Court held that a provision in CC&Rs limiting residency to persons over the age of 18 was invalid.

Swim Diapers

The Center for Disease Control ("CDC") has adopted a "Vessel Sanitation Program" that strictly prohibits children in diapers or who are not toilet trained from using public swimming pools and whirlpool spas on cruise ships. This is to prevent pool contamination and the spread of gastrointestinal illnesses. The CDC has determined that swim diapers are not effective in preventing contamination. Although swim diapers prevent solid feces from escaping (assuming they are properly fitted and changed often), they cannot prevent leakage of urine or diarrhea, which contain infection-causing germs. Some refer to swim diapers as "fecal tea bags." See news release by the National Swimming Pool Foundation. For more information about diarrhea and swimming see the information posted on the Centers for Disease Control website.

Recommendation. Based on CDC's rulings, it is our opinion that associations may adopt similar restrictions for their pools and spas. However, boards should be aware that various anti-discrimination laws prohibit discrimination based on age. Accordingly, boards should consult legal counsel to ensure their rules are properly drafted to apply neutrally to all persons who cannot control their bladder or bowels, not just children.

Senior Community Swimming Pools

See "Senior Communities."

ASSISTANCE: Associations needing legal assistance can contact us. To stay current with community association issues, subscribe to the Davis-Stirling Newsletter.