Understanding the Virginia Graeme Baker Pool and Spa Safety Ac
t
By Jeffrey A.
Beaumont, Esq. and Jasmine M.
Termain, Esq. of Rapkin, Gitlin & Beaumont
There has been much discussion as of late regarding the Virginia Graeme Baker Pool and Spa Safety Act (“Act”). Many questions have been raised as to its content and applicability to California and associations. This article seeks to eliminate some of the confusion related to the Act, and answers the many questions we’ve seen regarding how the Act will impact associations.
The Act is a federal law that takes effect December 20, 2008. It requires owners of “public” pools (also refers to spas throughout the entire article) with submerged suction drains to retrofit the drains in order to limit and prevent drowning deaths caused by people becoming ensnared in a pool’s drain.
Significantly, the Act defines “public” to include multi-family residential dwelling common areas and their associations.
Therefore, the Act applies to associations.
The Act further applies to fully submerged pool drains.
If an association has a surface skimming pool or spa drain, or a pool with certain types of multiple submerged drains, the pool or spa is likely in compliance with the Act. All associations with common area pools and spas are strongly encouraged to thoroughly investigate their drainage systems to evaluate whether they are in compliance. Federal enforcement of the Act falls under the United States Consumer Product Safety Commission (“CPSC”).
Many state agencies and pool vendors have expressed serious confusion as to whether or not the Act applies in California. Some claim the Act does not apply because parts of the Act indicate it is “elective” or because it is a federal law and does not specifically state it will preempt state laws. Associations should take careful note that the CPSC and California Department of Public Health have both published their official positions and have both unequivocally and uniformly stated that the Act does apply in California. We confirmed this position in a phone call to Glenn Takeoka, REHS Chief of the Environmental Health Services Section.
The California Department of Public Health, Environmental Health Services Section is the state agency responsible for pool safety oversight throughout California. As such, its official position that the Act applies should be treated as the correct and final interpretation that the Act applies to California. Furthermore, the CPSC’s own interpretation memorandum (dated June 18, 2008), which responded to public comment on whether or not the Act applies to states, notes that the Act establishes a “minimum” safety standard. In discussing the Act with a local pool safety expert, he indicated the current California requirements are not as strict as the Act and, therefore, all applicable pools within California will need to be properly retrofitted in order to be in compliance.
Having clearly established the Act applies within California, the next question becomes what should an association do next? We strongly recommend that Boards retain a licensed and insured pool contractor to evaluate the need to repair drains and otherwise comply with the Act. Should an association not be able to properly retrofit its pool drain, it is required to permanently disable the pool until the drain can become properly retrofitted. The Act contains very specific technical specifications and requirements. Accordingly, associations are strongly encouraged to contact their pool professional as soon as possible to allow enough time to adequately comply with the Act.
What happens if an association violates the Act? The Act provides that both civil and criminal penalties can be imposed for violations (see, 15 U.S.C. 2070(a)). While an association in violation of the Act can be subject to penalties,
the actual potential penalties for failing to comply are not yet firmly established.
Currently, people who knowingly commit a violation of the Consumer Product Safety Act are faced with up to a $1.85 million penalty per violation (see, 15 U.S.C. 2069(a)(1)). Clearly, the potential for civil and criminal penalties evidences the legislature’s strong commitment to seeing to it the Act is complied with. Nevertheless, like complying with all laws, it is imperative that associations comply with the Act to avoid exposure to significant civil and criminal liability.
What can an association do if it does not have enough money in its budget for the repairs? Many associations will find themselves having to pay for these unexpected, and unbudgeted costs to bring their pools and spas into conformance with the Act. In this instance, an association without adequate reserves can consider levying an emergency special assessment in order to pay for the repair costs. Prior to passing an emergency special assessment, the Board must first obtain an estimate for the repair costs.
Pursuant to Civil Code Section 1366, subsection (b), Boards may levy an emergency special assessment, without the members’ approval, if necessary to address a threat to personal safety or if necessary to pay an extraordinary expense that could not have reasonably been anticipated at the time the Board prepared and distributed the budget. Boards are encouraged to review their CC&Rs and seek legal counsel to determine the viability and procedure for levying an emergency special assessment.
This bill is codified in Title XIV, Section 1404, of the United States Code, and is commonly known as the Virginia Graeme Baker Pool and Spa Safety Act. The text of the Act can be viewed online at: http://www.cpsc.gov/pssa.pdf.