Tuesday, August 17, 2021:

Carolyn Goldschmidt and Mike Shupe discussed some of their most memorable HOA cases and important takeaways for Associations.

Thursday, July 15, 2021:

Carolyn Goldschmidt and Mike Shupe fielded questions from the audience during an always popular Q&A session.

Join Carolyn and Mike for a discussion about managing common areas during the continuing pandemic, as well as bills currently pending in the State Legislature, and what you need to know about how each will affect the operations of your community association in 2021 and beyond. Information will also be shared as to how you can contact the State Legislators and the Governor to voice your concerns, opposition, and/or support for the various bills affecting your communities. Please sign up quickly, as you will not want to miss this webinar!

When: Monday, March 1, 2021 at 12:00pm

Registration: Click here to register.

Q&A Session Questions: During the Webinar, questions may be entered via Chat. However, if you would like to submit questions on this topic ahead of time, you may do so via the email address below.

Contact: Feel free to contact us at office@gshoalaw.com if you have any questions or trouble registering.

The Goldschmidt|Shupe office will have reduced hours Monday, November 23, 2020 through Friday, November 27, 2020. Our schedule for the week is below:

Monday, 11/23: 11:00am – 4:30pm
Tuesday, 11/24: 11:00am – 4:30pm
Wednesday, 11/25: 11:00am – 4:30pm
Thursday, 11/26: CLOSED
Friday, 11/27: CLOSED

By Carolyn B. Goldschmidt, Esq.
May 26, 2020

As Mike Shupe reported in his communication on May 18, 2020, the Pima County Board of Supervisors issued a Proclamation that would have required HOA pools that reopened to sanitize high touch areas after every use and keep a log of the sanitization (among other requirements). On May 21, 2020, the Board of Supervisors adopted a revised Proclamation that made these requirements inapplicable to semi-public pools within HOA and condominium communities.

At this point, HOA Boards of Directors can decide to reopen swimming pools, but need to take into account the potential liability that remains, and the fact that there is probably no insurance coverage for claims and losses that might arise out of communicable disease transmission. Even though the Governor’s order allows opening, an HOA’s common area is private property, and a Board has the authority and responsibility to not reopen if the common areas cannot be managed and controlled in a manner that is reasonably safe. The risk to the Association can be reduced by taking proper precautions as set forth in governmental and public health guidelines and rules.

At the time Governor Ducey’s latest order allowed swimming pools to open, the Arizona Department of Health Services (ADHS) issued guidelines on swimming pools. Taking the ADHS guidelines into account, following are some rules and procedures for your Board to consider as a starting point.  Make any refinements that fit your Association’s particular situation and issues:

• Limit the number of people in the pool area at one time. The number will depend on the size of the facility. To implement this limitation, consider a sign-up sheet at the pool where persons reserve time at a pool in specific increments (e.g., one hour).
• Consider whether the traditional pool hours will apply or be changed.
• Consider whether to restrict the pool to residents only (owners and tenants). On the other hand, restricting the number of people in the pool area may remove the necessity for this limitation.
• Maintain physical distancing [six (6) feet between people unless they live in the same house].
• Pool bathrooms are closed.
• Consider removing all pool furniture so sanitizing is not an issue.
• Hand sanitizer and disinfectant and paper towels near the main entrance to each pool or tell residents that sanitizing hands and wiping high touch areas are their responsibility with their own sanitizing liquid or wipes.
• Pool users should follow public health guidelines and advisories on protection and precautions against COVID-19.
• Enter the pool area and swim at your own risk.  The _____________ Homeowners Association assumes no responsibility if you are diagnosed with COVID-19 at any time after entering the pool area and using the pool or spa.
• Signage at the pool entrance (if you have more than one entrance, consider padlocking subsidiary entrance(s) so there is just one entry and exit point.  Here is suggested signage:

DO NOT ENTER IF ILL OR
HAVE ANY SYMPTOMS OF COVID-19

PREVENTING THE SPREAD OF COVID-19
Limited Access
Please read and observe Pool Rules

• The Pool Rules also should be posted at the pool area as well as distributed to the residents.

Hopefully, your homeowners will understand that the Board must act prudently in managing all of the common areas in a manner that follows governmental and public health guidelines and that keeps the common areas reasonably safe for all residents.

Please let us know if we can help your Association navigate through any COVID-19 issues.

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.

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:

1. 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.
2. Similar symptoms and temperature checks for guests are optional.
3. Cloth masks and gloves and frequent hand-washing are required for all staff.

4. 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.
5. Indoor occupancy limited to 50 percent or lower unless 6-foot physical distance standards can be achieved with higher occupancy.
6. 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.
7. Physical distancing of 6 feet minimum between fitness equipment, deck loungers, chairs and/or tables.
8. Elimination of self-service stations including water fountains, unless touchless. Nothing prohibits the serving of bottled water.
9. Hand sanitizers available at entrances to the facility, restrooms and in employee work areas.
10. Sanitize customer areas and high-touched surface areas after each sitting or equipment use with EPA-registered disinfectant.
11. Implement cashless and/or minimal touch payment methods if possible.
12. 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.

By Carolyn B. Goldschmidt
May 7, 2020

Greetings from all of us at Goldschmidt|Shupe as global attempts to contain and limit the COVID-19 virus have changed most facets of our day-to-day lives and also impacted the business dealings and common area management of homeowners associations throughout southern Arizona. From Governor Ducey’s latest communications, it appears that his previous Executive Order will be modified soon allowing communal swimming pools and hot tubs to be used again. We are hearing from community managers and Board members that residents are anxious to be able to use these facilities now that the temperatures have risen and because exercising in the swimming pool is important to many residents’ health maintenance regime.

Needless to say, the threat of COVID-19 transmission is still with us. Therefore, even if swimming pools and hot tubs can be opened again, Boards of Directors and community managers need to consider whether it is prudent to do so. Depending on the size, location and usage of common area swimming pools, it may not be reasonably safe to open even if governmental restrictions are lifted. If a Board decides to open the swimming pool area to residents, safeguards to maintain social distancing and proper sanitizing may need to be implemented until there is no longer a need to do so.

It is important to realize that in addition to the Association’s legal duty to maintain the common areas in a reasonably safe condition, if there should be a claim against the Association that a resident contracted the COVID-19 virus due to negligent practices by the Association, the Association’s liability insurance will likely not cover the claim. This is because most liability policies specifically exclude coverage for claims arising from communicable diseases.  Of course, each Association needs to check with its insurance carrier to confirm the scope of liability coverage.

In conclusion, until Governor Ducey issues an order expanding outdoor exercise activities to include swimming and use of a hot tub, your Association should not open these facilities. To prepare for opening, it may be prudent to form a Pool Committee, if your Association does not already have one, to formulate, implement and oversee protective measures for residents. Here are some procedures and rules to consider as a starting point:

1. Community residents only. No guests.
2. Establish hours that pool area(s) will be open for residents’ use.
3. Limit of two people in the pool or hot tub at a time.
4. Devise a time reservation sign-up sheet on a clipboard in the pool area.
5. No use of bathrooms.
6. No lounging (consider having furniture removed or stacked if this is an issue).
7. Having hand sanitizer available so residents can sanitize hands after opening the  gate. (Leaving the gate(s) open/unlocked is not an option per the Pima County health code.)
8. Establish a schedule to regularly sanitize railings and other surfaces that are in regular use.

Good luck in navigating the issues that will be arising as the Stay at Home and Social Distancing governmental and public health orders are relaxed, and let us know if we can be of assistance.

Disclaimer: The information provided 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.

Effective Monday, March 23, 2020, and until further notice, the Goldschmidt|Shupe office will be switching to a more remote-based working environment, with limited public access to the office.

We are maintaining the usual business hours, so please feel free to contact us via phone and email. We appreciate your patience and understanding during this transition in operations and thank you for your continued trust in Goldschmidt|Shupe for all your communities’ legal needs.

Phone: 520-265-4462
Email: office@gshoalaw.com

All of our Lunch & Learn seminars are held at the Tucson Association of Realtors Conference Center located at 2445 N. Tucson Blvd., Tucson, Arizona 85716. Space is limited, so be sure to register!

Want to make sure you don’t miss any of our events? Email us at office@gshoalaw.com and ask to be added to our email list.

Thursday, February 20, 2020
11:30am-1:00pm

Topic: Spring Refresher 2020
Join Carolyn Goldschmidt and Michael Shupe for a topical discussion regarding the Architectural and Design Review process; an update on HOA bills and Legislative trends; and recent stories about HOAs in the news.

Wednesday, April 1, 2020 – CANCELLED
11:30am-1:00pm

This event has been cancelled.

Friday, October 9, 2020
11:30am-1:00pm

Topic: TBA