Community pools provide welcome relief from summer heat. They also impose certain obligations on operators of those pools, including community associations. Recent regulations adopted by the California Department of Health define “public pools” to include pools maintained by community associations. The most dramatic changes are set forth in Title 22 of the California Code of Regulations (the “Regulations”) which were amended effective January of 2015. Others are contained in the California Building Code contained in the California Code of Regulations, Title 24, which also were amended, effective January 2014. Associations should know that local health agencies are starting to enforce these new standards. Because some of these changes significantly impact the way associations must service, monitor, and track activity at community pools, associations would be well-advised to note the requirements and implement any necessary changes to ensure compliance now and down the road.
Specifically, there are several amendments to the Regulations that affect association management of community pools, including:
1. new parameters for water characteristics;
2. strict daily monitoring of public pool facilities and requirements for written records;
3. enforcement of specific safety and first aid equipment;
4. requirements that a public pool have at least one keyless exit and self-closing latches;
5. imposition of health restrictions for employees or pool users.
New Parameters for Water Characteristics
As has been the case, operators of community association pools must use a chemical disinfectant to preserve the clarity of the water. It should be noted, that the amended Regulations require higher chlorine levels. Pools have one level of chemicals necessary, and spas, wading pools, and spray grounds (i.e., grouped together) have other, separate standards for free chlorine residual and bromine residual as well as a lower range for pH tolerance. The pool operator must maintain a test kit for measuring the disinfectant residual, pH level, and, if used, cyanuric acid at the pool site.
Associations should confirm that their pool vendor is knowledgeable and compliant with the minimum and maximum acceptable levels of chemicals in public pools.
Moreover, a little-known requirement of the Regulations which also governs use of public pools and of which associations should be aware is the mandate that the water temperature of a spa shall not exceed 104 degrees.
More Stringent Daily Monitoring and Record Keeping Requirements
Perhaps the most important change to be aware of relates to requirements for daily testing of pool water. Except for associations with 24 or fewer separate interests, associations must comply with detailed testing and written recording obligations.
Specifically, associations with 25 or more separate interests must now test and record the free chlorine/bromine and pH levels at least once daily. Other actions that must be recorded daily include equipment readings, calibrations, and corrective actions taken. Daily testing can be done automatically if by a properly calibrated system approved by the enforcing authority (e.g., Orange County Department of Environmental Health). If cyanuric acid is used, the levels must be tested and recorded at least once monthly.
Associations must keep on site (i.e., at the community pool facilities) written records of routine maintenance and repairs as well as manufacturer’s instructions for operation of all mechanical and electrical equipment and water treatment systems.
In addition, upon incidents at community pools of fecal, vomit, blood contamination or drowning or near-drowning, associations are required to record the incident and, if there is more than one pool in the community, identify the particular pool affected. In addition, there are now mandates, that associations respond to and remedy incidents of contamination. Associations should also be aware that they must report any incidents where two or more pool users or lifeguards have diarrhea within five days of each other.
There are also now lifeguard recordkeeping mandates for associations providing lifeguard services. Associations must make sure that there is written proof at the community pool for inspection by the enforcing agent that lifeguards comply with the certification requirements of the California Health and Safety Code.
Lastly, associations must retain the records maintained in accordance with the Regulations for a period of at least two (2) years. Thus, associations should check their document retention policies as well as those of their community managers and/or pool vendors to ensure compliance with this requirement.
Safety and First Aid Equipment
On the issue of lifesaving measures, and even where a community pool does not include lifeguards, associations should ensure that they have, at a minimum, the safety and first aid equipment required by the Regulations, including a life ring and rescue pole. Specifically, there must be present at the community pool a 17-inch minimum diameter life ring with 3/16-inch diameter throw rope attached. The rope should be at least as long as the pool is wide. Also, there must be a rescue pole, measuring a minimum of 12 feet fixed length with a permanently attached body hook. A shorter pole is permissible for spas so long as it is long enough to facilitate rescue.
Where associations provide lifeguards, additional safety and first aid equipment is required, including a Red Cross 10-person industrial first aid kid or something comparable, an operating telephone, and a backboard and head immobilizer.
Requirements for Entry Gates
The building code includes another notable section, which mandates that all public pools have enclosures that include self-closing and self-latching gates or doors. The enforcing agent can close a public pool for failure to include and maintain the required self-closing and self-latching gates or for any other activity or condition that “creates an unhealthful, unsafe, or unsanitary condition.”
Associations should notice that the building code also requires that “[t]he pool enclosure shall have at least one means of egress without a key for emergency purposes.” In addition, the gate or door that allows egress without a key must be marked with a sign stating “EMERGENCY EXIT” with letters four inches high or more. This requirement is not necessary if all gates or doors can be exited without a key.
Associations should check with the local enforcement and city building agencies to determine if and when any modifications to their entry gates are required. The California Building Code requires associations to retrofit pool enclosures to include at least one keyless exit gate should the association renovate the pool enclosure.
Section 3119B.3 of the Building Code specifically states, in pertinent part, that “keyless exit gate requirement shall apply only to public pool enclosures constructed on or after July 1, 1994.” At a minimum, it is certain that any new pool enclosures must include a keyless exit gate. However, the Orange County Health Care Agency published an information bulletin stating that this requirement was one of the minimum requirements for new enclosures/fences around public pools. Any new or rebuilt enclosures around an association pool should comply with these requirements.
The Regulations prohibit pool employees from working at public pools if they have any active communicable disease, defined as “an illness caused by an infectious agent or its toxins that occurs through the direct or indirect transmission of the infectious agent or its products from an infected individual via an animal, vector, or the inanimate environment to a susceptible animal or human host.”
In addition, the Regulations further ban pool users, including pool employees, from entering the water while having a communicable disease in an infectious state, which includes various specific types of infection but notably extends to “having any symptoms such as a cough, cold sore, or nasal or ear discharge or while wearing bandages.” A current written statement signed by a doctor suffices as an exception to both of these proscriptions.
The information above is intended to provide a general overview and is not the last word on the subject of association requirements under California law for maintenance and operation of community pools. Associations should make sure their pool vendor is up to date on the new Regulations, and understands the new requirements so that they can assist in making sure they are followed. Any board that has questions regarding the enforcement of restrictions in light of these new Regulations should discuss the matter with their association’s legal counsel.
Robert DeNichilo is partner in the law firm Nordberg|DeNichilo, LLP, and specializes in representing homeowners associations throughout Southern California. He is an active member of CAI, and serves on the Legislative Support Committee of the Greater Inland Empire Chapter, acts as co-chair of the Orange County Chapter’s Legislative Support Committee and is the chapter’s liaison to CLAC. He is a frequent speaker at industry and management company educational events. Mr. DeNichilo publishes a blog on association related topics at HOABrief.com. For more information, please visit NDHOALaw.com.