Opening Swimming Pools
Adams Stirling PLC
  California's Leader in Community Association Law May 17, 2020

Orange County Pools. We are getting mixed messages from the Orange County Health Care Agency and it is really annoying. In its May 7 guidelines, the Agency states:
Many property managers and homeowners’ associations (HOAs) have chosen to close pools, spas and barbeque areas in an effort to slow the spread of COVID-19 and protect residents. When an HOA, property management company or property manager opens their pool upon State Order modification, the guidance below should be followed...
The Agency wrote the order as if pool closures were voluntary. They weren't. The guidelines then state that when an HOA opens their pool "upon State Order modification" it should follow the County's guidelines. What does that mean? The State's order is vague and says nothing about swimming pools. If you search hard enough, you can find pools referenced in guidelines for hotels: "Hotels with pools should ensure that physical distancing requirements can be enforced, this could include limiting one person per lane in swimming pools." (The information is buried--it's a single bullet point in a 10-page document.)

In a telephone call with Orange County's Health Agency, an official said HOA pools could open if they limited usage to 5 people at a time from one household (if they are all in the same household, why limit them to five?), no outside guests, and no sunbathing (if people maintain social distancing, why no sunbathing?). Pool and spa use is limited to 30 minutes if someone else is waiting to use the facility (the State has no such time limit).

It should be noted that none of the guidelines issued over the phone is on the County's website or in the State's orders. This is incredibly frustrating.
How are boards supposed to know what to do? Orange County's Health Agency is creating potential liability for associations by being unclear what associations are allowed to do.

RECOMMENDATION: I recommend homeowners, board members and managers call and email the Health Agency. Talk to an official, get their name and title and follow up with a written confirmation of whatever they tell you. It's known as a CYA letter and you will need it if there is any blowback for following their oral instructions. Here is their contact information:

    Telephone: (714) 433-6000
    Email: [email protected]

I'm curious to know if they even give the same instructions to different associations. Let me know what you find out.

Riverside Pools. Our community has 5 unstaffed pools and is struggling with how to open them following the Riverside County guidelines. Do we need to hire a full-time staff to monitor the pool and sanitize everything periodically? Or, can we post all the guidelines and tell residents to use at their own risk? Some of our members are frightened we will be sued for millions if we open the pools before the end of the pandemic. -Lloyd A.

RESPONSE: Riverside County has the best guidelines I've seen. Kudos to their health officer Dr. Cameron Kaiser. Please send him an email thanking him for following the science and publishing sensible guidelines without sending people to the State's website on a wild goose chase. The Health Department specifically included homeowner associations and made it clear the guidelines "are guidelines and not requirements for community pool operators."
By publishing clear guidelines, Riverside provided a roadmap for boards to open their pools in a way that minimizes potential liability.

RECOMMENDATION: If associations open their pools, they must do so in a non-negligent manner. Boards in Riverside County should talk to their association's legal counsel about how best to follow the County's guidelines if they decide to open their pools.

Public vs Private. In your 5/15/20 newsletter, you state that HOA swimming pools are private, not public. US Legal says that they are considered public. Which is correct? -Suzanne Z.

RESPONSE: In this case, we are both correct. HOA pools are not open to the public. They are for the private use of association members and their guests. However (and this is a big however), they are sometimes defined as "public" for regulatory purposes.

It depends on the particular issue whether HOA pools are considered public or not. When it comes to ADA regulations, they are not public. When it comes to safety devices, chemical testing, and signage, they are defined as public. Doing so makes it easier for officials to impose blanket regulations. They don't want to create a separate category of regulations for private swim clubs and homeowner associations. They simply define them as public for purposes of their regulations.

One Person at a Time. Our county opened spas but limits them to one person at a time. Does that mean husband and wife cannot use it at the same time? -Martin F.

RESPONSE: Many state and county orders are irrational. They don't follow the science. If two people live in the same household, they are not going to give each other the coronavirus by being in the spa at the same time.

Emergency Rules. The precautions boards need to take require new rules, correct? If this requires new rules, don’t they need to go out for a 28-day comment period before taking effect? At this rate, the summer will be halfway over. Can boards bypass the comment period because this is a health emergency? -Kim D.

RESPONSE: Yes. If boards adopt emergency rules, they can skip the comment period. Per the Davis-Stirling Act, if boards determine that an immediate rules change is required to address an imminent threat to public health or safety, they can make a rule change without a 28-day waiting period. (Civ. Code §4360(d).)

Jurisdictional Issue. We have one board member who believes that since HOAs are private, the LA County Order to close tennis courts and pools does not control associations. Further complicating the issue is that local authorities have decided not to enforce county orders on private lots and communities. -Beth R.

RESPONSE: Your board member is mistaken. Governmental authorities have the power to regulate private communities. Los Angeles County ordered the closure of all multi-family residential swimming pools. That includes condominium associations. Association boards are obligated to comply with county orders even if local authorities refuse to enforce the county's orders. The jurisdictional disputes between state, counties and cities is creating a mess.

With counties, citie,s and the State pointing fingers at each other, it's incredibly difficult for boards to know what to do. When it comes to our clients, we are NOT advising them to ignore applicable health department orders. Doing so would create legal exposure for boards.
You should check with your association's legal counsel; they may have a different opinion.

COMMENT. By keeping pools closed, some county health departments are ignoring the science. Associations in counties that continue to keep them locked down should encourage their members to call their county supervisors. It wouldn't hurt to call the Governor as well. It's time they opened swimming pools with rational guidelines, like those published by Riverside County.

COUNTY ORDERS. Some health department orders contain detailed requirements, while others are vague and poorly-written. Boards should carefully review applicable health department orders and consult with legal counsel on when and how best to open their facilities.

NorCal Counties. Marin County issued new orders effective 5/18. Golf courses may open with restrictions. Pools, gyms, and dog parks remain closed. They provide no specific guidance, but it appears tennis is open to members of the same household. Motorized access to some parks is now allowed.

Mendocino County has a new order opening more Stage 2 businesses. It still provides for the same recreational facilities, but establishes clear guidelines for their operation.

San Mateo issued a new order effective 5/18. There are limitations on park, beach and trail access. It opens pools and tennis courts if actively monitored and managed to ensure (i) they are only used by members of same household or (ii) with social distancing, face coverings and other Health Orders enforced. Spas remain closed.

Although Shasta County’s website still indicates pools are closed, one of our readers sent a letter from the County indicating that public pools may open, subject to restrictions. Spas remain closed.

Contra Costa County has a new order that allows vehicle-based gatherings. Fresno County requested permission from the State to move to Stage 2 business reopening. Sonoma County has an amended order that only clarifies Stage 2 openings. Tuolumne County’s new order clarifies Stage 2 openings. Yolo County’s only updates Stage 2 business openings.

SoCal Counties. San Bernardino rescinded their public health order on May 8. They are now following the State’s health orders (which, at best, are ambiguous).

Updated Chart. For a list of county restrictions and links to their orders, see 5-17-20 CHART OF COUNTY ORDERS. An updated chart is posted on the website. Thank you to readers for sending us information about their counties. If we missed anything, please contact us.

Can you publish Marjorie Murray’s email and phone number so we can email/call her and discuss her interpretation of SB 323? -Jim F.

RESPONSE: The following information is from the organization's public filing:

    Marjorie Murray, CEO
    Center for California Homeowner Association Law
    3758 Grand Avenue, #56
    Oakland, CA 94610
    [email protected]
    (855) 648-4043

Your professionalism and humor, always makes my day! -Patricia D.

Boards can contact us for friendly,
professional advice.

Adrian J. Adams, Esq.
Founder & Managing Partner
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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