Getting Ready for the Pool Season

Date: January 13, 2012

In a few months, community associations around the region will be opening up their pools in preparation for the summer season.   Running an association pool, of course, comes with a host of issues, including: training and certifying lifeguards; maintaining, repairing and replacing the equipment itself; and enforcing the rules and regulations for using the pool.   This article will focus on two separate issues: the Virginia Graeme-Baker Act and the responsibilities of community associations under the federal and state non-discrimination statutes.

A.    The Virginia Graeme Baker Act (“VGBA”), 15 U.S.C. §8001 et seq.

This Act arose out of a tragic accident involving the seven-year-old granddaughter of former U.S. Secretary of State James Baker.  Briefly, the girl was trapped in the filtration system of a hot tub and was being sucked down to the bottom of the tub.  A number of adults jumped into the hot tub to try and pry her free, but the filtration suction power was too great, and they had to break the drain to release her.  Virginia Graeme Baker was later declared dead at the hospital.

In response, Congress passed the VGBA, which mandates, among other things, drain covers that allow for a maximum flow rate and have been tested for body entrapment and hair entrapment or entanglement.  In addition, all public pools and spas must be equipped with anti-entrapment devices or systems that comply with the current ASME/ANSI A112.19.8 performance standards.  Where a public pool or spa has a single main drain that is not “unblockable” (i.e., one whose size or shape is such “that a human body cannot sufficiently block [it] to create a suction entrapment hazard”), the pool or spa must also be equipped with additional protection to prevent suction entrapment, such as a Suction-Limiting Vent System, a Gravity Drainage System, or an Automatic Pump Shut-Off System. 

This brief discussion is meant merely to highlight the purpose of the VGBA and provide a brief overview of its requirements.  Clearly, we cannot fully describe here all the requirements of the VGBA, nor can we provide all the technical details of a compliant pool or spa drainage system.  There are, however, a few important points to remember.  First, the VGBA mandate includes pools even if they are open only to residents of a multi-unit apartment building/complex, residential real estate development, or other multi-family residential area (15 U.S.C. § 8003(2)).  Second, local jurisdictions may have additional or more stringent requirements for pool drainage equipment – the federal VGBA provides a minimum standard.  Third, a violation of the VGBA is considered a violation of the federal Consumer Product Safety Act, and so all of that Act’s penalties could apply, including imposition of civil penalties.  Finally, a violation of the VGBA may provide the basis for tort liability for damages. 

We recommend, therefore, that the community association determine exactly what types of pool drainage system it currently uses and determine whether the system is in compliance with VGBA.  If the system is not compliant, the pool should be closed until the Board determines whether a rework is possible.   Above all, a reputable pool contractor should be retained to review all aspects of the drainage system and make the appropriate recommendations.

B.    Discrimination and Fair Access Statutes

These statutes include:

  1. The Fair Housing Act (“FHA”) (42 U.S.C. §1301), which protects the residents of the association – since the pool is an amenity of life in the community association, every resident must be able to take advantage of that amenity equally, regardless of race, color, religion, sex, familial status, handicap or national origin. 
  2. The federal Civil Rights Act, and particularly 42 U.S.C. §2000A, which prohibits exclusion from public accommodations on the basis of “race, color, religion, or national origin”; and
  3. The Americans With Disabilities Act (“ADA”), particularly 42 U.S.C. §12182, which guarantees disabled individuals equal access to all “public accommodations.”  
  4. Local State Statutes.  In many cases, these are patterned on the federal statutes, but in some states they differ.  In either case, they need to be understood and followed. 

While it might seem counter-intuitive that a private, community association pool could be considered a “public accommodation”, that term is defined broadly enough to encompass any situation where members of the public might be granted access.  A truly “private” facility for purposes of both the Civil Rights Act and the ADA is one in which guests and outsiders rarely, or never, are allowed access.  For example, if each association resident is allowed a certain number of guest passes, or if the pool and party rooms are rented out for parties and social events, the association pool would be considered a “public accommodation.”   Because the definition of “public accommodation” is so broad, most associations will probably be covered by all of these non-discrimination statutes.

Most recently, three issues have become common problems for associations:

  1. “Adults Only” regulations.  This includes limiting access by young children to the pool in general (i.e., never without an adult) or setting aside specific times when children cannot use the pool.  Unless the regulations have clear and compelling safety justifications, they may be seen as discriminating against those residents with young children, and thus violating the FHA. 
  2. Religion-mandated Clothing: Some religious faiths or other belief systems direct their adherents either to follow specific requirements of dress or grooming (for example, the Sikh requirement for beards and long hair covered by a turban), or to avoid immodest dress.  Depending on the circumstances, the religious custom may be viewed as a violation of pool regulations.  The issue that we have seen most recently has been the “burkini”, a women’s swimsuit style that resembles a loose-fitting wetsuit with a hood and covers the whole body except the face, the hands and the feet (thus meeting the Islamic modesty standards).  There have been cases where women wearing burkinis have been turned away from their association pools, thereby effectively discriminating against them on the basis of their religious beliefs.
  3. Handicapped Access: Under both the FHA and the ADA, disabled individuals are entitled to the same access to the pool as their able-bodied neighbors.  Existing pool layouts should be reviewed to see where barriers might be eliminated or avoided – where ramps might be installed, curbs cut to allow wheelchair access, or counters and tables lowered.  In addition, where major alterations to the association pool might be planned, the ADA Requirements were amended in 2010 to require pool lifts, sloped entries, and transfer stations for new or renovated public pools.  These amendments should be reviewed with both your attorneys and construction contractors before any renovation work is started.

Should a plaintiff prove a violation of any of these statutes, the court may award not only compensatory damages, but also in some cases civil penalties and injunctive relief.  In addition, the court could require the association to renovate the pool area and would probably require the association to pay the plaintiff’s attorneys fees. 

C.    Conclusion

Before the pool opens on Memorial Day weekend, we recommend that the Board conduct a review of:  the drainage system, to ensure compliance with VGBA; the rules and regulations of the pool, to look for any potential fair housing or discrimination issues; and the pool area itself, for any barriers to handicapped access. 

Again, this list is not comprehensive, but highlights some of the potential liabilities that an association faces when operating a community pool.  Overall, the time and expense of conducting these reviews, and carefully planning for the pool season, is still going to be far less than the costs and effort required to defend against a lawsuit for damages.  It remains of paramount importance for the Board to do everything necessary to guard against these potential liabilities.