Public Swimming Pools

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We will address continuing and developing State regulatory changes affecting our members in this issue. Next month, we will resume highlighting the major State legislative challenges for the year. The regulatory change we will focus on will affect every public swimming pool, including our swimming pools and spas.

The State Department of Public Health (DPH) is proposing significant regulatory change in the manner in which we manage and operate our pools and spas. As proposed, the changes would create a higher legal standard of care, new legal liabilities, and new and more expensive maintenance costs. They could easily be considered as overkill or unnecessary as the draft regulations would be applied to us.

Here are some of the highlights of what we have provided to DPH:

1. Higher Standard of Care – New Legal Liabilities.

There is no question that the new regulations, if adopted, would create new legal duties and a higher standard of care with respect to maintaining a public pool. For example, the proposal requires daily testing of pool water; requires monitoring of fecal, vomit and blood contamination; requires keeping the pool “clean,” free of “dirt, oil, scum, algae, floating debris, or visible organic and inorganic materials;” and requires new systems for checking the health of employees, checking doctor notes, monitoring people’s bouts with diarrhea, and posting “diarrhea signs.”

Every one of these new regulations creates new legal duties, the violation of which exposes property owners to new lawsuits and legal claims. In this day and age of frivolous lawsuits and litigious plaintiffs who make a living out of suing business owners, property owners are under standably concerned when new laws are promulgated exposing them to new forms of abusive litigation practices.

Safety and health are important, but defending against frivolous lawsuits is an unreasonable, expensive, and unnecessary burden on apartment owners, and can be especially difficult on apartment owners of smaller and medium sized apartments. Establishing regulations like the ones proposed here, therefore, must be bal anced against the need for such regula tions, the over all costs to comply with such regula tions, including litigation costs, ability to comply, and the effectiveness of such regulations. On balance, these new regulations may not be appropriately balanced considering the new legal duties and the legal liability that comes with them. In fact, the Initial Statement of Reason report accompanying the proposed regulatory changes discusses the impact on small businesses, but fails to analyze or discuss the legal ramifications of these new regulations. What is discussed in the report erroneously minimizes the impact on small businesses like apartment owners.

2. Lack of California-Specific Data on Health and Safety of Pools.

Given the heightened exposure to frivolous lawsuits, we question whether the data supports the necessity of some of these new regulations. The Initial Statement of Reason report does not cite any California specific studies addressing the need for the new regulations. What is cited are national studies that seem to indicate that “waterborne disease outbreaks” in California apartments are rare to non-existent. In fact, the main study relied upon in the Initial Statement of Reason is a national study by the Center for Disease Control that looks at the combined total of waterborne disease out breaks within a 24-month span of 39 states or juris dictions.

According to the CDC Study, between January 2007 and December 2008, not one single out break occurred in an apartment building or complex setting during that period. The only residential type setting where an outbreak did occur was a “private residence” with a “temporary waterslide.” From our perspective, the data that has been provided indicates apartment owners do a great job of maintaining their pools.

3. Increased Duties – Increased Maintenance Costs.

We are also concerned about the number of new duties that will be required of our property managers and pool operators, whether full compliance can be achieved, and whether they are even necessary. Our experience is that regulations that are currently followed by our members have created healthy and safe environments. Without data and evidence to the contrary, we question the necessity of burdening apartment owners with new duties and new maintenance costs, especially given what appears to be very little evidence that the current system is not working properly.

a. Daily Testing
Under current law, while there is a requirement to keep a daily pool log, there is no requirement to test pool water everyday. Whether a pool is tested depends upon its usage, the season and particular triggering events. For example, in the fall, winter and spring when pools are either not used or occasionally used, it is not necessary to test every day. When activity picks up in the summer, more testing and maintenance is necessary. Additionally, when water becomes murky or visually contaminated, testing and correction is important.

The new regulation, however, requires testing every single day. We question the necessity of this strict rule. It requires a full-time pool operator to be hired or purchasing expensive automatic testing devices in order to comply. For our owners with only one or a few units, hiring a full-time pool operator or installing an automatic chemical monitoring device and ensuring that the device is properly calibrated at all times will be costly.

Additionally, failure to test on a given day or failing to keep a properly calibrated testing device could become evidence in a lawsuit of failing to comply with the proper standard of care, and expose a property owner to unintended liability. Does the need and benefit of testing daily warrant the kind of exposure to liability that will result?

A more balanced approach may be to require testing, as needed, depending upon certain factors or a triggering event. In any event, more discussion is warranted to ensure full compliance of, and reasonable and achievable approaches to, the testing requirement.

b. Clean Pool Water Requirements.
The proposed regulations require pools to be kept “clean,” which is defined as “free of dirt, oils, scum, algae, floating debris or visible organic or inorganic materials”. We are concerned about the vagueness of these terms and the unattainable standard these regulations create.

We have many questions. What is the definition of dirt and scum, how is it identified, and what are the proper courses of action to deal with it? Oils occur on human bodies naturally, and are regularly lathered on pool users as sunblock or tanning lotion. Thus, oils will regularly be found in pools. What is the duty to immediately respond to such elements in the water? What technological devices exist that may relieve a property owner of liability with respect to minute-to-minute monitoring and maintaining a “clean” pool? How do we deal with organic and inorganic? Legally, organic material in cludes human bodies. Inorganic materials in clude the swimwear of pool users. Perhaps far-fetched, but the regulation appears to create liability for failing to keep humans out of pools.

Under current law, there is a duty to keep floating scum, sputum or debris from accumulating in the pool (Section 65533). That requirement is significantly different from the proposed regulation to keep the pool free of dirt, oils, scum, and algae, floating debris or visible organic or inorganic materials and the like.

Our argument is that some of these standards are difficult, if not impossible, to meet. Like many of the new regulations, monitoring of this magnitude will require an on-site, full-time employee dedicated to watching the pool at all times. For our owners with only one or a few units, meeting the standard will be more difficult and costly.

c. Diarrhea Monitoring and Diarrhea Signs.
Under current law, patrons known to be or suspected of being sick are supposed to be excluded from public bathing places unless they have a doctor’s note or are otherwise approved. The proposed regulations would make it clear that pool operators and property owners are under a specific duty to monitor their employees and pool users and prevent sick people from entering the pool. The proposal includes monitoring for nasal and ear discharges, and whether an employee or patron has diarrhea.

We are concerned that the duty to monitor for sick people and those with diarrhea is vague, unachievable and serves as an open invitation for a lawsuit. What kind of supervisorial system must be set up to monitor employees’ and patrons’ sicknesses? What kind of liability does a property owner have if a sick person does go into a pool? How much investigation and prying is required to determine whether an employee or patron has or recently had diarrhea. The new regulations also require the posting of “Diarrhea Signs.” Is this really necessary?

Perhaps there are better approaches to dealing with this issue. We have requested more time to discuss and understand the need for regular monitoring of patrons’ illnesses, the extent to which pool chemicals address pool contamination, and whether there are more balanced and cost effective approaches.

4. Lifeguard Sign Elimination, Current law states: Where no lifeguard service is provided, a warning sign shall be placed in plain view and shall state “Warning – No Lifeguard on Duty” with clearly legible letters at least 10.2 centimeters (4 inches) high. In addition, the sign shall also state “Children Under the Age of 14 Should Not Use Pool Without an Adult in Attendance.”

The importance of this section is that it allows pools to be operated without having to hire a lifeguard. Lifeguards are often unnecessary and can be quite expensive. Instead of hiring a lifeguard, pool owners may post a sign warning tenants and guests that no lifeguard is present. This sign re quirement serves as an important regulatory standard for all concerned.

The proposed regulations have eliminated this important section of the law. According to the Initial Statement of Reason, DPH proposes to relocate the signage provision to another section of the regulation. To our knowledge, however, we have not been able to locate where in the new regulations this signage provision is located.

Conclusion
In sum, we have deep reservations about the ability to comply with some of the new standards. We are also concerned about new avenues for abusive litigation and question whether, and to what extent, some of these more demanding regulations are necessary or achievable.

One of the big questions on the minds of many is: how much will this cost? Will apartment owners have to hire a full-time pool operator? Will they have to buy new gadgets and devices to address the new cleanliness standards? What are the newliabilities and how much will it cost them in court?

In response to our concerns, and many others, DPH recently announced they will publish a new set of proposed swimming pool regulations. At that time, we will write another article that highlights the latest changes to the DPH regulations.


Ron Kingston can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it

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