Published on: July 2, 2002
As I write this article in late January, I question whether the rains in California will ever subside so that swimming pools may open. However, pools in the Northeast and Florida are sure to open and Californians will resort to courtesy arks (no pets allowed) to transport people to the pool. Unfortunately, attorneys find problems with everything, including swimming pools, and therefore, it is up to the reader to listen to the advice and decide what to pay attention to and what to ignore.
Most associations do not perform a swimming pool liability/legal audit but this may be the year to do so. HUD has become particularly hard in the last couple of years against community associations which discriminate against children. Therefore, associations may wish to have their written and posted pool rules reviewed. Adult only pool hours are a thing of the past. HUD has determined that they discriminate against children and therefore violate the Federal Fair Housing Amendments Act of 1988. Associations must also be careful in terms of whether children must be accompanied by an adult. Pool rules should be drafted in more general terms. For example, HUD might determine that a rule stating that children may not play ball in the pool is discriminating whereas a rule stating that no person may play ball in the pool is satisfactory. An adult, I suppose, should have no more right to play Frisbee in the pool than a child.
Community associations must also be sure to check their safety procedure and their insurance coverage. Associations are urged to speak with their local Boards of Health and their insurance carriers to determine whether lifeguards are required. If they are, then it is questionable what protection a “Swim at Your Own Risk” sign will do. Obviously, if lifeguards are required, their official certifications should be obtained and copies kept by the association.
On July 26, 1994, the employment provisions under the Americans With Disabilities Act were decreased from 25 to 15 employees. If the manager has more than 15 employees and the association less than 15 employees, then the association should strongly consider whether the lifeguard should be employees of the association so that the ADA employment provisions will not apply. In any event, associations should become thoroughly familiar with pre and post hiring employment and labor laws, including specifically the types of questions which are permitted and those which are illegal. Minimum wage laws, required breaks, etc. must be fully understood to ensure that no rights of the employee are being violated.
It is difficult to determine how must liability insurance is satisfactory to protect associations against pool related incidents such as drownings, but input from the association’s insurance agent should be obtained and Boards should consider whether to raise the limits of liability. Many insurance carriers will send someone from their loss control department to the complex to review procedures, signage, gates, locks, etc. and to make recommendations. This is highly suggested because if a disaster occurs, the Board will have little comfort in knowing that the insurance carrier will cover the claim.
As Multiple Chemical Sensitivity Syndrome proliferates and as new concerns related to disease continue, associations should rely on an expert to prepare written sanitation procedures for purifying the water, including the appropriate amounts of chlorine and other chemicals and maintenance to ensure the proper operation and efficiency of the pool filtration system. Although I have not yet heard of a case of this nature, it seems that 1995 will be the year where a unit owner sues or threatens to sue a Board claiming that he or she has a reaction to the pool chemicals and therefore is entitled to reasonable accommodations under the Fair Housing Amendments Act based upon this “disability”.
Boards must ensure that the pool and access thereto meets the requirements of the Americans with Disabilities Act since it is highly likely that the pool and clubhouse would be considered places of public accommodation under the ADA.
Special policies and procedures are most likely needed if the amenities contact a hot tub since hot tubs have additional health and safety risks.
As I stated at the beginning of this article, Boards should obtain advice and then decide which advice to listen to. Swimming pools are supposed to be an amenity meant to be enjoyed and should not be destroyed by lawyers.