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Real Estate & Property Law

: a View from the property line

$15 Million for a Pool Drain? You bet!

By William G. Gammon

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On December 17, 2007, President Bush signed into law a little-known piece of legislation that could have far-reaching and potentially crushing liability effects on community associations that operate pools as part of the recreational amenities for their membership. Entitled the "Virginia Graeme Baker Pool and Spa Safety Act of 2007" (the "Act"), this bill requires that all owners/operators of "public" pools and spas comply with the federal standards for pool construction, including, most notably, the incorporation of anti-entrapment drains and drainage systems to protect against drowning, the second-leading cause of death in children under the age of 14. Owners/operators of public pools have until December 20,2008, in most cases, to comply with the Act or face stiff penalties for non-compliance, including fines of up to $15 MILLION per DAY per violation!!!

The Act promotes the safe use of pools, spas and hot tubs by imposing mandatory federal requirements for suction entrapment avoidance and by establishing a voluntary grant program for states with laws that meet certain minimum requirements as outlined in the Act. The Act is being administered by the U.S. Consumer Product Safety Commission (the "CPSC"). Specifically, the Act requires that each public pool or spa utilize, among other things:

Safety Drain Covers. Each swimming pool or spa drain cover manufactured, distributed, or entered into commerce in the United States shall conform to the American National Standard ASME A112.19.8-2007 Suction Fittings for Use in Swimming Pools, Wading Pools, Spas, and Hot Tubs published by the American Society of Mechanical Engineers (ASME). Compliance with this Standard will be enforced by the CPSC as a consumer product safety rule.

Public Pool Drain Covers. Each public pool and spa (as defined), both new and existing, shall be equipped with drain covers conforming to the ASME A112.19.8-2007 Standard described above.

Public Pool Drain Systems. Each public pool and spa (pump) with a single main drain, other than an unlockable drain, shall be equipped with one or more additional devices or systems designed to prevent suction entrapment, that meet the requirements of any applicable ASME/ANSI Standard or applicable consumer product safety rule. In addition to a compliant drain cover, such additional devices or systems include a safety vacuum release system (the "SVRS"), or suction limiting vent system, or gravity drainage system, or automatic pump shut-off system, or drain disablement, or other system determined by the CPSC to be equally effective in preventing suction entrapment (see ASME A112.19.17).

Systems that Exceed the Federal Statute. All pools and spas configured to comply with ANSI/APSP - 7 American National Standard for Suction Entrapment Avoidance in Swimming Pools, Wading Pools, Spas, Hot Tubs, and Catch Basins, will automatically comply with each of the mandatory requirements listed above by virtue of its more stringent construction standard.

Which Pools are affected?

Now what is a "public" pool as defined by the act, and can the community association hope to dodge this legislation? No. "Public" pools as defined under the Act specifically include pools that are open exclusively to members of residential real estate developments such as community associations. So community association pools fall squarely within the target facilities governed by the Act. As such, all public pools, including those operated by community associations, must be equipped with a drain cover that is sold in the United States and meets certain Federal standards. The Act also requires, among other things, that all public pools with one main drain include at least one of a number of entrapment prevention safety systems which meets Federal standards.

So now to the punchline of the the article's headline: how can a pool drain cost the community association $15 million bucks? Simple. The Act authorizes a penalty of up to FIFTEEN MILLION DOLLARS PER OCCURRENCE or violation of the Act on a DAILY basis. It doesn't take a mathematician to calculate the catastrophic liability that non-compliance with the Act would levy on an unprepared or unsuspecting community association. Especially with budgeting sessions coming up for the next fiscal year, community associations need to be wary NOW of this legislation and its effects on pool maintenance and operation. If you are a director serving on your community association board, then please communicate with your pool vendor sooner rather than later and make sure that your pool meets the requirements of the Act. The old adage goes, "an ounce of prevention is worth a pound of cure." In this case, a few dollars spent now to comply with the Virginia Graeme Baker Act could save millions in fines (and LIVES) as the ultimate crux of the Act is to ensure that no more drownings result from the phenomenon known as suction entrapment.

A podcast of this article can be heard by clicking here or here, where yours truly served as producer and host of the CAI's "Community Spotlight" Radio Program, which can be heard each and every Friday on CNN 650 AM (click on the link "Click Here to Listen Live" in the right hand column of the page).

Full post as published by a View from the property line on August 25, 2008 (boomark / email).

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