By Michael S. Shupe
May 18, 2020
As you all are probably now aware, Governor Ducey’s amended “Stay Home, Stay Healthy, Stay Connected Order” expired last week. As a result, community pool facilities in homeowners’ associations throughout Arizona are now allowed to reopen – welcome news under ordinary circumstances as the temperatures rise. However, given that the threat of COVID-19 transmission is still with us, guidance from the Governor’s office was initially very limited as to what Boards of Directors and community managers need to consider when implementing safeguards to maintain social distancing and proper sanitizing. In anticipation of this, we recently offered some basic rules and procedures for Boards and community managers to consider before reopening pools. (Click here to read: Community Pool Facilities and COVID-19)
In the meantime, additional federal, state, and local governmental and health agency guidance has been established, creating a constantly changing primordial soup out of which Associations must put together the building blocks of a reasonable strategy for pool operations that attempts to meet the needs of residents who may have opposing expectations and opinions.
In particular, last week the Pima County Board of Supervisors approved a set of temporary Health Code Regulations (Click here to read: May 13 Proclamation re: COVID-19 and measures for reopening businesses and activities). Section 3 of the new regulations pertaining, in part, to community pool facilities in HOAs, which are considered semi-public pools, establishes the following measures:
A. Minimum employee, vendor, and guest health and wellness measures:
- Wellness/symptom and temperature checks for all personnel, and when possible for vendors and contractors as they arrive on premises and before opening of a pool.
- Similar symptoms and temperature checks for guests are optional.
- Cloth masks and gloves and frequent hand-washing are required for all staff.
B. Minimum operation measures:
- Physical and/or website signage posting at the pool or gym entrance with public health advisories prohibiting individuals who are symptomatic from entering the premises.
- Indoor occupancy limited to 50 percent or lower unless 6-foot physical distance standards can be achieved with higher occupancy.
- Clearly marked 6-foot spacing marks at entrances, hallways, restrooms and any other location within the gym or pool where patrons may queue or congregate.
- Physical distancing of 6 feet minimum between fitness equipment, deck loungers, chairs and/or tables.
- Elimination of self-service stations including water fountains, unless touchless. Nothing prohibits the serving of bottled water.
- Hand sanitizers available at entrances to the facility, restrooms and in employee work areas.
- Sanitize customer areas and high-touched surface areas after each sitting or equipment use with EPA-registered disinfectant.
- Implement cashless and/or minimal touch payment methods if possible.
- Post documentation cleaning logs on-line and at the entrance documenting cleaning of all public areas (inclusive of counter tops, door handles, waiting areas, etc.) at least every 2 to 3 hours.
Some of the numbered items above, may not apply to every community pool facility, and others may be rendered moot by other measures (i.e. prohibiting use of pool chairs or loungers, closing restrooms and drinking fountains, etc.). Whereas, the requirements for signage, the availability of hand-sanitizers, and the regular and documented cleaning of all public areas, are applicable to all community pools in HOAs. It is also important to understand that the above measures differ from other “guidance” that has been offered related to business operations, in that they are enforceable by the Pima County Health Department through regular inspections. Furthermore, complaint forms are available on the Pima County Health Department website for individuals to report pool operators who are not complying with the Health Code regulations. As stated in the attached Pima County Proclamation, repeated violations are subject to a civil penalty of $500.00 per infraction.
Therefore, Boards who are considering opening their pool facilities, now need to include the above regulations in their comprehensive strategies for reopening. Any prudent and effective strategy needs to include: 1) the adoption of rules and procedures for sanitizing and distancing measures compliant with Pima County pool regulations, 2) proper and effective monitoring and servicing of the pool facilities to reasonably facilitate the new rules and procedures, and 3) regular and uniform enforcement to reasonably ensure compliance with the new rules and procedures.
As we mentioned in our previous comments on this topic, one size does not fit all when it comes to your community pool rules and procedures. The number and frequency of pool users, community demographics, existing mechanisms for controlling access to pool facilities, availability of volunteers and/or paid service providers to perform the necessary sanitation and related services, and the Association’s financial circumstances, are several, but not all, of the various considerations.
If an Association cannot, for any reason, put together a comprehensive and effective strategy for reopening its community pool facility in such a way that is compliant with all Health Code regulations, then the Association should not reopen such facilities. This can be a very difficult scenario for a Board to consider, particularly given the time of year, and the pressure that may come from residents who wish to use the pool. However, the Association’s liability for noncompliance with Health Code regulations, beyond any civil penalties, could be substantial, and Directors may even face personal liability exposure by disregarding such regulations.
All things considered, creating an effective strategy for reopening a community pool is not impossible, and the demand in your community for use of the pool facilities can create an opportunity for creative ways to encourage community involvement in the necessary process and procedures for reopening. We are available as always to assist your community in formulating your own individualized strategy for reopening your pool facilities, and in answering any other related questions or concerns.
Disclaimer: The information provided herein is not, nor is it intended to be, legal advice. No attorney-client relationship between the reader and Goldschmidt|Shupe is intended. You are not considered a client of our law firm until you have signed a written agreement accepted by us. Federal, state and local responses to COVID-19 are changing quickly. Our COVID-19-related information is based on the facts and guidance available today. Future developments may render such information outdated and inapplicable.
