GOVERNMENT RESTRICTIONS ON
POOLS AND GYMS
QUESTION: We have two swimming pools and hot tubs and two tennis courts. The board is citing excessive liability because of COVID-19 and wants to charge us for an attendant and a large extra insurance policy. They are citing Los Angeles County regulations as their justification. I believe it's unreasonable. –Tamra T.
RESPONSE: The mayors of Los Angeles and San Francisco got together with Governor Newsom to discuss reopening community association facilities. They decided not to risk anyone dying from the coronavirus and imposed stringent restrictions on reopening facilities until science could find a cure for death. Following is one of the many requirements for reopening gyms in San Francisco:
If the gym...is unattended by staff at any time during hours of operation, it must remain closed... Indoor gyms may operate if they meet strict conditions that include daily screening of patrons, enhanced personal and equipment sanitation measures, enhanced ventilation requirements, and strict rules on face covering, distancing and [10%] capacity limits. Gyms without full-time staff cannot meet these critical risk-reduction standards and must stay closed.
It means unstaffed associations (small to mid-size and some large) cannot open without hiring extra help.
Risk Tolerance. Boards have different levels of tolerance to risk. Some are risk-averse and unwilling to chance fines and potential litigation. As a result, they are keeping their facilities closed.
Associations that can afford it are hiring personnel to comply with health department requirements. If it's not in their budget, some are willing to open if users pay for the extra attendants.
Boards that are less risk averse have already opened their facilities after posting warning signs, installing hand sanitizers, and requiring members to sign hold harmless agreements. They might not be fully compliant with State/County requirements, but they decided the lack of regular exercise is too detrimental to their members to keep them closed.
RECOMMENDATION: Health Officers are doing the best they can to minimize the spread of the coronavirus. Some think they are being too lenient and want the State to go back into full lockdown, while others believe their requirements are too strict and should be loosened. Since it may take a while for science to find a cure for death, associations that want to reopen facilities should consult with legal counsel and decide which is the best course of action for their association.
INTRUSIVE & UNNECESSARY BILL
Governor Newsom signed AB 3182. This is another in a series of senseless decisions coming out of Sacramento. The Legislature and the Governor seem to think that converting owner-occupied homes into rentals will solve their housing crisis. It won't. All it does is destabilize community associations.
Investor Rentals. Signing AB 3182 means almost 3 million of the state's 11 million HOA housing units are now fair game for investors to buy and convert to rentals. It also means that rules enforcement problems, deferred maintenance, and lower property values will inevitably follow.
Better Solution. The better solution would have been loosening restrictions on the construction of apartments and new homes. As more units are built, rents and housing prices drop. It's a simple matter of supply and demand. Assemblyman Ting's bill:
Consequences. Even though associations have until December 31, 2021 to amend documents, in reality it needs to be done by January 1 (in less than 3 months), which is when non-compliant restrictions are voided. That means those associations will have zero rent restrictions on January 1. This opens the door to investors buying up units and converting them into Airbnb rentals.
- voids rental caps more restrictive than 25%;
- allows 30-day lease restrictions but appears to void anything greater than 30 days (law firms are split on this point);
- mandates all associations amend their governing documents;
- voids restrictions on January 1 but allows associations until December 31, 2021 to amend their governing documents;
- imposes a penalty of $1,000 on associations that do not comply; and
- has internal inconsistencies (we are currently trying to decipher).
ADU Problem. Ting's legislation also includes a requirement that building departments jam through ADU approvals. He and the Governor want everyone to convert their garages into rentals as quickly as possible. In addition, Ting specifically carved out ADUs from the 25% cap, which means HOA rentals could climb well above the 25% ceiling.
RECOMMENDATION: This is really frustrating. We are in the middle of a pandemic; millions are out of work; associations just went through unbudgeted election rule revisions; and now this. Despite heavy lobbying by CAI and thousands of emails from homeowners, Governor Newsom signed Ting's bill anyway. Last year, he signed Marjorie Murray's SB 323 dumpster fire election bill.
Boards with non-compliant restrictions should immediately talk to legal counsel about amending their governing documents before January 1, when existing restrictions become unenforceable. We plan to start with rules changes, since those will be the quickest and least expensive for clients. This should protect against Airbnb rentals and avoid the threat of penalties. Then, we can work on the more difficult task of amending CC&Rs.
NEW EMPLOYER REQUIREMENTS
FOR REPORTING COVID-19
Governor Newsom signed AB 685 and SB 1159 into law. These bills impose more burdens on employers.
SB 1159. Workers’ Compensation. Employers with 5 or more employees are required to report all known employee COVID-19 positive tests to their workers' compensation claims administrator. This applies even if the employee is not claiming workplace exposure. If an employee claims they contracted the virus while performing their job, the new law creates a rebuttable presumption the employee contracted it at work. The burden is on the employer to prove otherwise.
AB 685. Notice to Exposed Employees. If an employer receives notice of potential exposure to COVID-19 in the workplace, the employer must provide written notice to all employees as well as the employers of subcontracted employees who were on the premises at the same time as the employee diagnosed with COVID-19 was ordered to isolate, or died of the virus. In addition, employers must provide exposed employees with information about benefits to which they may be entitled, including but not limited to, workers’ compensation and COVID-19-related leave, including company sick leave, State-mandated leave, Federal sick leave, as well as anti-retaliation and anti-discrimination protections available.
RECOMMENDATION: Associations and management companies should talk to their HR administrators and/or legal counsel about the new requirements. Non-compliance can result in penalties of up to $10,000.
Election Timeline Calculator. It works like a charm! Clear, simple, efficient. Thank You. Thank You. Grateful to your team. I very much appreciate also that each step includes a paragraph spelling out in a few words the requirements of the law behind it. A gem! -Denyse B.
RESPONSE: I appreciate the feedback. Our team put a lot of work into the timeline calculator. It's already getting a lot of use as boards implement the confusing requirements imposed by SB 323.
CAI Legal Forum. The following comment was passed to me about the CAI's recent Legal Forum:
"What I loved most: was learning about CAI and the network of individuals available to homeowners and board members. I want to thank Adrian Adams and his staff for their newsletter that lead me to this legal forum. It was great being able to talk directly with the experts. I did not know that anything like this was available. -Kay D."
Rent Restrictions #1. I am a subscriber to the Adams-Stirling Newsletter, and I am never disappointed. It always has something useful to our HOA in it. Despite letters to the Assembly and Senate, the Legislature passed SB 3182. And, despite letters to the Governor to veto the bill, he signed it. So now HOAs will have to allow up to 25% of their units to be rented before they can restrict additional renters. Way too few make the effort to send letters that you make so easy for us to send, so all of those who didn't send letters share the blame for SB 3182. -John C.
Rent Restrictions #2. Our association does not have a rent cap, but instead requires that new owners must live in the property for two years before it can be a rental unit. How does AB 3182 affect this? -Rick S.
RESPONSE: Your restriction is common in governing documents and very effective at discouraging investors from buying units while still allowing existing owners to rent their unit if they need to. These kinds of restrictions keep communities stable. Effective January 1, such restrictions are unenforceable.
State Officials announced a metric that takes effect October 6. It is intended to address communities which have been disproportionately impacted by COVID-19. See: Press Release re Equity Metric.
The CDPH issued the following guidelines related to public outdoor playgrounds and outdoor recreational facilities. This could assist associations with playgrounds or similar facilities: CDPH Guidance re Public Outdoor Playgrounds and Outdoor Recreational Facilities
NorCal Counties. The following Counties have Updates to their status: Amador (Red Tier to Orange); Butte (Purple Tier to Red); Calaveras (Red Tier to Orange); Contra Costa (Purple Tier to Red); Fresno (Purple Tier to Red); Sacramento (Purple Tier to Red); San Francisco (Red Tier to Orange); San Joaquin (Purple Tier to Red); Sierra (Red Tier to Orange); Yolo County (Purple Tier to Red).
Alameda County has issued a press release indicating that indoor nail salons can now open: Alameda County Press Release dated 9/25/20 re Indoor Nail Salons Opening. Also see: Bay Area Health Officers Joint Press Release dated 9/28/20.
Butte County has moved to the Red Tier and has issued the following press release regarding Red Tier: Butte County Press Release dated 9/29/20 re Red Tier.
Calaveras County has moved into the Orange Tier and has issued a press release regarding the status in the County and the Orange Tier: Calaveras County Press Release dated 9/29/20 re Orange Tier.
Contra Costa County has issued the Bay Area Health Officers press release related to Halloween: Bay Area Health Officers Joint Press Release dated 9/28/20. Contra Costa has moved into the red tier and has allowed the following to open: indoor places of worship, restaurants, movie theaters and museums at 25% capacity or 100 people, whichever is less; indoor gyms at 10% capacity; indoor personal care services, including massage; indoor shopping malls at 50% maximum capacity and food courts following State guidance; indoor retail stores at 50% capacity; outdoor playgrounds. The following press release related to this change indicates that elementary and secondary schools can open for in-person instruction on October 13 if the County remains in the Red Tier for two weeks: Contra Costa County Press Release dated 9/29/20 re Red Tier.
Fresno County has moved to the Red Tier and issued a press release related to the same: Fresno County Press Release dated 9/29/20 re Red Tier. They have issued Guidance for Celebrating Halloween as well as Guidance re Youth and School Based Sports and Band.
Lake County has noted in a press release that they fear they may be moved back to the Purple Tier: Lake County Press Release re Tier Changes.
Mendocino County has issued Mendocino County Order re Drive-In and Drive-Through Events.
Mono County has published a press release from Mammoth Lakes re Interim Restaurant and Retail Business Operating Rules for the Town of Mammoth Lakes.
Sacramento County has moved to the Red Tier and has a new Order which limits indoor operations of certain sectors and follows the new tier system.
San Francisco County has moved to the Orange Tier. They have issued a press release related to the opening of indoor dining and places of worship at 25% capacity or up to 100 people, whichever is smaller; 200-person political events; certain outdoor family entertainment; gyms and indoor dining at hotels; indoor malls at 50% capacity and indoor food courts. See: Guidance re Indoor Dining, Indoor Worship and Other Activities; San Francisco County Press Release dated 9/30/20 re business reopenings.
San Joaquin County has moved to the Red Tier and issued a San Joaquin County Press Release dated 9/29/20 re Red Tier Openings.
Solano County has issued Solano County Guidance for Celebrating Halloween Safely.
Sonoma County issued Sonoma County Guidance re Outdoor Playgrounds and Outdoor Recreational Facilities.
Tehama County issued a Public Service Announcement dated 9/30/20 re Tier Movement indicating that there is a possibility that Tehama may move back to the Purple Tier.
Yolo County has moved to the Red Tier and issued Yolo County Press Release dated 9/30/20 re Red Tier.
SoCal Counties. Los Angeles County issued a timeline for certain industries for reopening with restrictions: October 1 for nail salons; October 5 for cardrooms; October 7 for indoor shopping malls. Outside playgrounds can reopen at the discretion of City and County Parks and Recreation Departments.
Riverside County issued a medical exemption for facial coverings and recommends a face shield to be used if possible for those with a medical exemption.
San Diego County made minor amendments to its Health Order on 9/25/20 regarding reporting of COVID-19 testing and recreational boating to follow state guidelines. Further, it amended its 9/29/20 Health Order to conform with State’s guidance on outdoor playgrounds.
Santa Barbara updated its Health Order on 9/30/20 with California Blueprint changes, opening with restrictions personal services, dance studios, gyms, movie theaters, museums indoor dining, skating rinks and zoos. Further, updated Health Order on 10/2 for opening of outdoor playgrounds, brewpub, breweries, bars, pubs and distilleries that provide for a meal in same transaction can open indoors at 25% capacity or 100 people, whichever is less, with no more than 10 people at a table. Similarly, higher education can open indoors at 25% capacity or 100 people, whichever is less.
READING THE CHART. Because the chart is large and the text small, you can easily make it larger for viewing by holding down the "Ctrl" key on the left side of your keyboard and then using your finger to scroll forward or backwards with the wheel on your mouse. You will see the text grow larger or smaller as you move the wheel. For a list of county restrictions and links to health department orders, see County Chart 10-3-20. The chart is also posted on our website.
|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 talk to us. Keep in mind we are corporate counsel to California associations only.