Head for the Bunkers
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  California's Leader in Community Association LawJune 3, 2020
HEAD FOR
THE BUNKERS

Moth Infestation. What is the policy of moth infestation in condo units? Is the HOA responsible for containing them? I have seen them coming out of the common area elevator. Are individual homeowners responsible for eradicating them? -Karen M.

RESPONSE: Pandemics, riots and now moth infestations. Next, it will be an invasion of frogs. It's time to head for the bunkers. FYI, if the moths are in the common areas, it is the responsibility of the association to call a pest control company. Owners are responsible for eliminating any moths that make their way into units.


PUBLIC VERSUS PRIVATE
SWIMMING POOLS

QUESTION: I spoke with the San Diego Health Inspector. She said they get their orders from the State, and at this point, the State has not authorized San Diego County pools to open. She said HOA pools are defined as public by the California Code of Regulations title 22, Section 65503. -Alicia R.

RESPONSE: It seems a number of people are struggling with the concept of public vs. private swimming pools, including San Diego Health Department employees.

HOA Pools Are Private. Association swimming pools are private. Your pool is for association members and their guests only. Period. The public cannot come knocking on your door and demand you let them use your pool. They can only do so by becoming a member of your exclusive club. How do they do that? By buying a residence in your development. Doing so makes them a member and entitles them to use your association's amenities.

Definitions Are Inconsistent. A regulatory agency can declare your swimming pool "public" for specific health and safety regulations. For example, the California Code of Regulations defines "public" differently for different sections of the code. This is how Section 116049(a) of the Code defines public:
"Public swimming pool,” as used in this section, means any public swimming pool ... that is owned or operated by the state or any local governmental entity, including, but not limited to, any city, county, city and county, charter city, charter county, or charter city and county.
Above is the true definition of a public swimming pool. It does not include HOA pools. Now watch how they define it in the very next Section 116049.1(a). Also notice the definition only applies to that particular regulation:
“Public swimming pool,” as used in this section, means any swimming pool ... for the use of the members and guests of a private club, including any swimming pool located on the grounds of a hotel, motel, inn, an apartment complex, or any residential setting other than a single-family home.
As you can see, pools are defined differently for different regulations. Some apply to HOA pools and some do not. Governor Newsom has not declared HOA pools "public" for purposes of the pandemic. Everyone assumed his order included them and fell in line. A few health officials opened their eyes and declared HOA pools to be private (which they are).

The San Diego Health Department is ducking the issue by claiming their hands are tied. They aren't. Any health department that wants to can do as Los Angeles and Tehama Counties have done — they can recognize that HOA pools are private, and promptly open them with reasonable guidelines. Other Counties are already following suit (see Updates).

RECOMMENDATION: If Counties want to contain the coronavirus, they should encourage people to burn off excess energy swimming and playing tennis rather than midnight shopping. Boards, managers and homeowners should continue to politely pressure County Supervisors and Health Department officials to recognize that HOA pools are private and take appropriate action.



NorCal Counties. Butte County opened hair salons, barber shops and religious services. 

San Francisco County added businesses that may now open.

Santa Clara County issued orders effective June 5, opening outdoor small ceremonies and religious services with groups no larger than 25; all outdoor recreational activities that do not involve physical contact, including swimming pools, hiking, tennis, golf, and camping, subject to limitations; and drive-in theaters and other car-based gatherings.

Sonoma County tennis courts, bocce and pickle ball courts, water sports, sports fields, climbing walls, shooting and archery ranges, golf, basketball courts, and boat launches can open if they operate in a manner consistent with social distancing and other requirements.

SoCal Counties. Los Angeles County amended its pool protocols that guests who do not reside in the apartment, condominium or homeowners association are not allowed to use the pool facilities. They issued a new “Whats open in Los Angeles.” The City of Los Angeles issued a health order that HOA pools can open as long as they follow county protocols.

Orange County continues to require all persons to wear face coverings outside their home when not able to maintain at least six feet of physical distance from another person who is not residing at the same household. However, it does not apply to anyone under age 2; to someone who has trouble breathing, is unconscious, or incapacitated; or persons with medical or mental health conditions.

San Diego County's new health order effective June 2, 2020 requires anyone that checks into a hotel in the county to sign a certificate under penalty of perjury, that they are either an essential worker for operations within San Diego, homeless and seeking shelter, have been exposed to Covd-19 and are self-isolating, or are at risk of abuse at primary residence.

San Luis Obispo County announced its pools will remain closed through the summer. However, it issued guidelines for opening HOA pools.

San Bernardino County opened HOA pools if they comply with guidelines, such as avoiding large groups or parties, regularly disinfecting common surfaces such as gates, door handles, rails, tables, chairs, and drinking fountains, and refraining from using the pool if ill. The Health Officer order is pending. Although face coverings are only strongly encouraged, business are authorized to deny service to persons without a face coverings.

Ventura County issued a new order that offers no guidance on swimming pools. Therefore, pools remain closed.


UPDATED CHART. For a list of County restrictions and links to Health Department orders, see County Chart 6-3-20. The chart is also posted on the website. Thank you to readers for sending us information about their counties. If we missed anything, please contact us.



Thanks to Adams Stirling law firm for great information and general guidance. -Daniel A.

I retired 2 months ago after managing HOAs for 36 years but I cannot stop myself from continuing to read your newsletters. With regard to hiring life guards, I believe that places a great deal of liability on the association, best to check with legal counsel and/or the insurance carrier. An alternative is to hire a "Pool Monitor" who would be present at the pool to be sure that the rules are being followed and to address issues regarding whether people are authorized to use the pool or not. Thanks for the wonderful job you are doing. With warm regards, -Carol K.



Boards can contact us for friendly,
professional advice.


Adrian J. Adams, Esq.
Founder & Managing Partner
ADAMS|STIRLING PLC

DISCLAIMER. Our newsletter provides commentary based on sketchy information we receive from readers. From time to time, we add a little humor. Some find it amusing. Others are appalled. Some readers are excited when they score free legal advice. Not so. Our newsletter provides commentary only, not legal advice. You need to pay real money for an attorney to review all the facts and give you a legal opinion. We do that too, but you have to actually hire us. It's okay, we're friendly. You can call us. Keep in mind we are corporate counsel to associations only.

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