UPDATE ON NORTH CAROLINA COVID-19 REOPENING OF POOLS

UPDATE ON NORTH CAROLINA COVID-19 REOPENING OF POOLS

May 22, 2020

After much anticipation, North Carolina Governor Roy Cooper issued Executive Order 141, ("Order") on May 20, 2020, labeled "Phase 2", which, among many other things, allows for the reopening of certain businesses and lifting the stay at home order. This Order is in effect from May 22, 2020 until June 26, 2020, unless altered by the Governor. The full text of the Order can be found here:

https://governor.nc.gov/documents/executive-order-no-141.

With this Order, retail businesses are allowed to open to the public, with restrictions as the Order sets forth. Pertinent to community associations, Section 6 E of the Order allows for the operation of indoor and outdoor pool facilities, but only if in compliance with the requirements of Order. The requirements to open pools are fairly clear, and are as follows:

1. Indoor and Outdoor Pools May Open. During the effective period of this Executive Order, indoor or outdoor pool facilities (whether stand-alone or part of other facilities) may operate, but must be in compliance with this Subsection.
2. Requirements. While this Executive Order is in effect, all open pool facilities
must do all of the following:

    a. Limit the user capacity in the pool to no more than 50% of maximum occupancy as determined by fire code (or, when fire code number is not known, thirty-three (33) people per one thousand (1000) square feet in deck areas, wading pools and splash pads), and a maximum occupancy in the water often (10) people per one thousand (1000) square feet. This user capacity is the Emergency Maximum Occupancy for the pool facility.
    b. Follow the Core Signage, Screening, and Sanitation Requirements as defined in this Executive Order.

3. This Subsection applies only to shared pools in commercial settings or at residential complexes. It does not apply to family pools at people's homes. The "Core Signage, Screening, and Sanitation Requirements" are listed in Section 1, subsection 2 of the Order, and are as follows:
"Core Signage, Screening and Sanitation Requirements" are the following actions which establishments open to the public under the terms of this Executive Order must follow, namely:
    a. Post the Emergency Maximum Occupancy in a noticeable place.
    b. Post signage reminding attendees, customers, and workers about social distancing (staying at least six (6) feet away from others) and requesting that people who have been symptomatic with fever and/or cough not enter.
    c. Conduct daily symptom screening of workers, using a standard interview questionnaire of symptoms, before workers enter the workplace.
    d. Immediately isolate and remove sick workers.
    e. Perform frequent and routine environmental cleaning and disinfection of high-touch areas with an EPA-approved disinfectant for SARS-CoV-2 (the virus that causes COVID-19).


NCDHHS has prepared sample signs and a sample screening checklist questionnaire, available at https://covid 19.ncdhhs.12:ov/guidance, that may be used to meet some of the requirements above. Businesses or operations do not need to use the NCDHHS sample signs and questionnaires to meet the requirements of this Executive Order. This Order also contains an Enforcement section, subjecting violation of the Order to prosecution and is punishable as a Class 2 misdemeanor.

In addressing this Order, community association boards should understand, first and foremost, that the Order is permissive; there is no mandate to open. What this means, in the end, is that it is the association board of directors decision to open the pool. Association governing documents, more specifically, the declaration of covenants, conditions and restrictions ("CCR's"), almost always grant owners or members the right to use the common area and facilities, which includes the pool, subject to the rules and regulations of the association. Thus, there is a potential conflict between owner's rights and board authority.

We are of the opinion that, if an association has a pool, the board should lean toward opening such pool unless there is a reasonable, sound basis not to do so. Members of an association pay assessments; those assessments are used to pay for and maintain the pool and facilities. Many members likely bought into the community with pool access as a significant, decision-making factor. Thus, the board should consider keeping the pool closed only if it can articulate sound reasoning to keep it closed. We provide some examples of such reasoning below. Boards of directors should use their sound business judgment when making such a decision, and we urge boards to discuss such matters with association counsel, managers, and pool vendors. The North Carolina Non-Profit Corporation Act, section 55A-8-30, provides protection to directors who rely on experts, such as counsel, management, and vendors, when making decisions. The full text of the NC standards for directors can be found via this link:

https://ncleg.gov/EnactedLegislation/Statutes/PDF/BySection/Chapter_55A/GS_55A-8-30.pdf.

We are further of the opinion that those pools that have attendants or lifeguards should strongly lean toward opening. These associations that have pool attendants or lifeguards must discuss the requirements of the Order with the companies that employ the lifeguards and attendants, and the attendants or lifeguards should be instructed to take reasonable steps to comply with the capacity and sanitization requirements in the Order, using everything from a sign in sheet, to a clicker taking count of attendees, and monitoring the social distancing on the deck and in the pool. Signage showing the Emergency Maximum Occupancy, social distancing and symptomatic language must be posted. We recommend that associations or their pool management companies conduct the daily screening of the attendants and employees and keep a log for reproduction as needed. Boards should work with their pool management company to make sure it has access to such documentation if needed. Boards should remember that lifeguards are there to watch those in the pool, not to enforce distancing requirements. Thus, there may be a need to hire additional personnel to perform the duties required by the Order. Again, communication with the manager and pool management is essential. For pools without attendants, or for pools managed by companies that will not provide the personnel needed to monitor the requirements of the Order, the decision whether to open is more difficult. Placing signage at the appropriate locations should not be an issue. However, it is obvious that for pools without an attendant or other type monitoring, the association cannot enforce the capacity and social distancing limits. Certainly, the board can solicit volunteers from the board itself, perhaps the pool committee if one exists, or even from the membership, to monitor the pool to ensure the capacity and distancing requirements are being followed, and perform the sanitization procedures as described. If such volunteers are utilized, communication to the membership identifying these individuals, and explaining the authority that these individuals have, is needed.

For pools without an attendant, and without volunteers, the decision is the most difficult. Members will likely be clamoring for the pool to be open, while others will be concerned about safety and spread of the virus. Without an attendant or consistent, scheduled inspection by volunteers, it is doubtful that an association will be able to comply with the letter of the Order. Certainly, board members or other volunteers may periodically sanitize areas and look to enforce capacity limits. This simply may not be enough unless there is constant monitoring with daily logs to show compliance. Based upon the language in the Order, we do not see roving patrols of police looking to enforce these requirements. Where we see potential for official involvement is in the situation of an owner who calls the police because of something that owner observes, or perhaps even a disgruntled owner that has had previous problems with the association and who is looking to express their dissatisfaction in manner. It is unclear how government officials will enforce the Order. Will it issue a citation to the board of directors? The association as an entity? Pool attendants? Those members in attendance? We, like everyone, will see how it plays out over the next month.

Whether the pool has an attendant or not, if the directors have information that the requirements are not being followed by those using the pool, it can and should take remedial measures allowed by the CCR's and Planned Community (or Condominium) Acts, using the hearing process and sanction, potentially including the suspension of pool privileges and fines. Further, as stated above, the board has the discretion to close the pool if it believes, in its reasoned business judgment, members will not comply with the requirements in the Order. We suggest that signage include language that complaints be brought to the attention of the attendant or management. While we are less than certain that execution of a waiver/hold harmless document, executed by the members prior to entering the pool, is fool proof legal protection for the association, we recommend that boards consider requiring members to execute it, and an acknowledgement by the member of awareness of the rules, before the member will be able to enter the pool. Execution of the document itself may go a long way to ensuring cooperation among the membership during this time. Boards should work with your attorney in the drafting of such document to ensure all the required language is present. In addition to the Order, the NCDHHS has published requirements and guidelines for pool operation. The requirements are the same as those in the Order. The guidelines are recommendations (such as spacing of chairs, encouraging cloth face coverings, checking and refilling hand sanitizers, etc.), meaning they are encouraged, but not required. Boards and managers can, and should, review those via this link:

https://files.nc.gov/covid/documents/guidance/NCDHHS-Interim-Guidance-for-Public-Pools-andSpas-Phase-2.pdf. We encourage all boards to follow the guidelines, not just the requirements.

If the board decides to not open the pool, it should document, and publish to the membership, its reasons. These reasons could, and likely should, include, that the board has continuing safety concerns, perhaps due to the demographic of the community, and lack of personnel to effectively monitor the pool to ensure adherence to the Order's requirements. If the board has taken the pulse of the community prior to making its decision, such information should also be considered and documented. We believe that the repercussions for not opening the pool to be either the pursuit, by the members, of a court order requiring the board to open the pool, to the calling of a special meeting to remove the board and elect a new board. Calling such special meetings properly, require following procedures set forth in the CCR's and statute and take time to implement. While it may happen, we do not believe it is likely. As to the pursuit of a court order, considering the public safety concerns prevalent at the moment, and the (hopefully) temporary nature of the Order, we believe such suit would likely fail. Again, associations should consult with counsel in making any decisions regarding the opening, or closing, of the pool. As this Order is temporary, we believe that when "Phase 3" starts, there will be a lightening of restrictions. This will also mean that boards that have chosen to keep the pool closed will need to revisit that decision. Not to sound like a broken record, but consult your association attorney when make such decisions.

One final note: based upon the language in the Order, association clubhouses and gyms must, in our opinion, remain closed at this time. We hope everyone has a safe and happy Memorial Day! Please contact us if you have any questions. As events continue to unfold, we will provide further updates.

THE MCINTOSH LAW FIRM www.mcintoshlawfirm.com

Chris Gelwicks chris@mcintoshlawfirm.com

Ted Mitchell ted@mcintoshlawfirm.com

UPDATE ON SOUTH CAROLINA COVID-19 REOPENING OF POOLS, GYMS, CLUBHOUSES

UPDATE ON SOUTH CAROLINA COVID-19 REOPENING OF POOLS, GYMS, CLUBHOUSES

May 18, 2020

As expected, South Carolina Governor Henry McMaster issued Executive Order 2020-36 ("Order") today, May 18, 2020, which allows for "Incremental Modification of Non-Essential Business Closures". Included in the list of facilities that may reopen for access or use by the public, are fitness, exercise centers, commercial gyms, and commercial or public swimming pools.

Subsection 1 B of the Order provides that:
Any businesses, venues, facilities, services, and activities that elect to re-open to non-employees and for access or use by the public, as authorized herein, should consider and incorporate any corresponding industry guidelines regarding the same, in addition to undertaking and implementing all reasonable steps to comply with any applicable sanitation guidance promulgated by the CDC, DHEC, or any other state or federal public health officials.

(Emphasis added.) We note the bolded language to highlight the non-mandatory nature of the Order. The Order authorizes the South Carolina Department of Health and Environmental Control (SCDHEC) to issue additional or supplemental guidance, rules, regulations, or restrictions.

Based upon the language in the Order, association pools and exercise facilities may reopen, at the discretion of the association, and are advised to adhere to CDC and SCDHEC requirements, if any, and requested to adhere to the published guidelines. Association boards will want to weigh the opening with the requirements/guidelines, that we discuss below, against the option of leaving the pool closed for an additional time for public safety reasons. Boards should be discussing with association members the options, keeping in mind that almost every set of recorded restrictions gives association members the right to use the common facilities (pool, clubhouse, gym), subject to the rules and regulations passed by the board. While we believe most communities will choose to open the pool and gym facilities, such decisions should be made after taking in all relevant information from governmental authorities, managers, attorneys and vendors. Decisions made in this fashion exhibit the reasoned business judgment of the board and should expose the association to little, if any liability.

What is less clear is whether an association clubhouse, primarily used for meeting space, may reopen for regular use. Many association exercise facilities require entry through the association clubhouse. Others have additional entrances. Considering that the Order allows for close contact service providers (i.e. barber shops, hair salons, etc.) to open while observing social distancing guidelines, it is our opinion that clubhouse facilities, may reopen for limited use, such as a board meeting, provided that social distancing parameters are followed. We do not recommend opening the clubhouse to hold annual meeting or social functions where the entire membership is involved.

As to pool operation, the SCDHEC has provided "Interim Guidelines for Re-Opening of Public Swimming Pools". Those guidelines can be viewed at:
https://www.scdhec.gov/sites/default/files/media/document/Interim%20Guidelines%20for%2
0Reopening%20Public%20Swimming%20Pools.pdf.


We strongly recommend that everyone carefully review this document. We have reviewed these guidelines and, there are mandatory actions, as follows:

    In order to reopen and successfully remain open for business, everyone individually and collectively must actively participate in the core recommendations:

  1. Self-isolation - if you are sick, stay home,
  2. Practice social distancing of at least six feet distance to the greatest extent
  3. possible,
  4. Wash hands frequently (20 seconds with soap and water or use of a sanitizer that contains at least 60% alcohol),
  5. Clean and disinfect frequently touched objects (e.g., keyboards, phones) and surfaces (e.g., handrails, workstations, sinks) or remove unnecessary frequently touched surfaces (e.g., trashcan lids),
  6. Avoid touching of eyes, nose and mouth with unwashed hands,
  7. Strongly consider wearing a cloth face covering when in public and not in the pool (do not use on children under two years old, people with difficulty breathing, or people who cannot remove the mask themselves)
  8. Cover mouth and nose when you cough or sneeze and throw used tissues away immediately after use,
  9. Avoid using other employees' phones, desks, offices or other work tools and
  10. equipment when possible, or disinfect them before and after use,
  11. Minimize the use of soft surfaces like cloth covered chairs or area rugs that are
  12. more difficult to clean or disinfect.

(Emphasis Added). We view the bolded wording to mean the nine (9) core recommendations must be followed. The remaining section of the SCDHEC guidelines contain simply that, guidelines. They include the following:
  1. Facilities should only allow 20% of normal occupancy or 5 people (staff and visitors) per 1000 square feet of pool and deck area, whichever is less.
  2. Person-to-person interaction and activities between members of separate households should be limited and social distancing of six feet between them should be practiced.
  3. Commonly used surfaces such as bathrooms, doors, handrails, ladders, gates, lawn chairs, drinking water fountains, picnic tables, etc. should be cleaned and disinfected between each use by a different person, or at a minimum, once a day.
  4. Hand sanitizer should be provided for use by all staff and visitors.
  5. Signs and/or examples of six foot areas related to social distancing should be posted.
  6. Full compliance with SC Public Swimming Pool Regulation 61-51 is always required.
  7. Remove from service or regularly disinfect sharable equipment (for example, kick boards, floats, etc.)
  8. Consider lane reservations to allow family groups to use a lane or specific area of a pool.
  9. Consider a phased approach to opening that brings back lane swimming and limited number participant classes before opening for general swimming.
  10. Life guards should continue to follow universal precautions when rendering first aid of any type to patrons.
  11. Follow CDC guidelines regarding cleaning and disinfecting.
  12. Follow CDC guidelines for public pools, hot tubs and water playgrounds.
  13. While these guidelines are voluntary, it is in everyone's best interest to follow
    them diligently as we move to re-open our economy and keep it open.


Previous guidance from the SCDHEC indicated that enforcement of these restrictions and cleaning procedures are entirely the responsibility of the operator/owner of the facility. In those cases where compliance with these restrictions is infeasible or cannot be achieved due to lack of cooperation by patrons or other issues, it advised that the facility remain closed until compliance can be achieved and maintained, or until restrictions are further relaxed.

To break it down, the first set are requirements that must be followed; the second set are guidelines that are recommended, but not required. A couple of things to note; the wording addresses "employers". Community associations are not "employers" and thus, there is at least an argument that the requirements are inapplicable as well.

There are two obvious questions: What must an association do, and what level of enforcement will the authorities be taking? In our opinion, if the pool has an attendant, the attendant should be instructed to take reasonable steps to make a good faith effort to comply with the requirements in part one above. Most of those requirements are for individuals (e.g. covering of mouths when coughing, not touching one's eyes). Things like sanitizing surfaces and reminding patrons to socially distance themselves would be something that an attendant can do. We highly recommend the posting of signage at the entrance of the pool and inside the pool facility, posted in conspicuous places, reminding patrons of the required rules. The goal is to show that the association is making a good-faith effort to comply. By doing that, we think it would be very difficult for a State or County official to take any measures against the association. For unattended pools, likely the best option is to the signage that is referenced above. We recommend, if feasible, the placing of sanitizing stations out on the deck at various locations, and have a volunteer periodically come sanitize the area.

As for the level of enforcement, the previous guidance left enforcement with the pool operator, and, with the associations; to self-monitor, and, if patrons do not comply with the requirements, the association may close the pool.

Based upon this language, we do not see roving patrols of police looking to enforce these requirements. Where we see potential for official involvement is in the situation of a disgruntled owner who calls the police because of something the disgruntled owner observes, or perhaps even if that owner has had previous problems with the association and is looking to get some revenge. We suggest that signage include language that complaints be brought to the attention of the attendant or management.

We recommend the following additional resources for your information:
https://www.cdc.gov/coronavirus/2019-ncov/community/parks-rec/aquatic-venues.html

https://www.scdhec.gov/sites/default/files/media/document/Interim%20Guidelines%20for%2
0Reopening%20Public%20Swimming%20Pools.pdf

COVID-19 AND STAYING THE COURSE

COVID-19 AND STAYING THE COURSE

It is safe to say that for many of us, the events of the last few weeks have brought unique challenges to our work, home and play. Those of us who practice community association law are continuing to evaluate the ever-changing environment; from the spread of the virus, to what will likely be the phrase of the year, "social distancing", and to what businesses/practices are "essential". Many of our colleagues have published articles, blogs, etc. that provide sound recommendations on the pressing issues that face community associations during this time. These have been posted on the CAI-NC website, and we urge everyone to continue to review those as questions arise and to reach out to your managers and attorneys with additional questions.

Further, it is important to highlight a few important areas of concern for association boards and to address some issues that may arise as all of us try to stay the course, fulfill our duties as association representatives, and protect our communities:

Collections
As you may know, officers and directors have a fiduciary duty to their associations to collect assessments. Associations are likely to see delinquencies rise during this time of economic turbulence and social unrest. In most cases, our recommendation to boards of directors is to stay the course and continue with the normal process and policies when dealing with delinquent owners. This is an issue of fairness to the owners who do pay the required assessments, and also one of duty to ensure the association's financial obligations are met. As suggested in Jim Slaughter's post of March 26, 2020, linked here for your reference, (lawfirmcarolinas.com/blog/what-to-doabout-hoa-condo-finances-assessments-during-the-coronavirus), the board can consider many options, including the extension of payment terms to owners, cutting certain expenses if possible (e.g. non-essentials, like the installation of pool key fobs for members), and perhaps even suspending the imposition of fines and late fees while still continuing the charge of interest. We think it important to continue with the filing of liens, if appropriate, pursuant to the North Carolina statutes and also the association's collection policy. Associations need to secure their position "in line" against other potential creditors.

Amenities and Common Areas
At this point, we assume that most associations have closed clubhouses and other amenities due to social distancing requirements. If not, we recommend that they be closed immediately to comply with North Carolina and in some circumstances, county orders. Association boards should keep most amenities closed to association members during this time until further instructions/order are given my state authorities. That said, it is our position that associations should not "police" or attempt to regulate social distancing in the community by issuing violation letters, holding hearings, and/or levying fines. While such measures are authorized for violations, enforcement of social distancing violations would likely be viewed as draconian in nature and would likely cause unwanted and unnecessary backlash. Enforcement of governmental regulations should be left to the governmental authorities themselves. However, it is important to inform and publicize the closing of amenities and need for community members to respect their neighbors and also to adhere to mandated rules and regulations.

Conducting Business
Remember that board meetings do not require members of the board to be in the same location during the meeting. The use of Zoom, Skype, conference call, etc. and other platforms is acceptable to conduct meetings among board members. Proper notice of meeting times, and in this time, platform, is still required. Statutorily, N.C.G.S. § 55A-8-20, (part of the N.C. Non-Profit Corporation Act) allows for participation at a board meeting, "through the use of, any means of communication by which all directors participating may simultaneously hear each other during the meeting. A director participating in a meeting by this means is deemed to be present in person at the meeting." Check your individual bylaws and articles of incorporation to determine if these types of remote meetings are prohibited. Additionally, as authorized in N.C.G.S. § 55A-7-04, boards make take action without a meeting via unanimous written consent. Member meetings will likely need to be postponed and rescheduled absent some reliable platform use in which all members can remotely access without interference.

Pool Season and Vendor Contracts
Pool season is rapidly approaching. Based upon the uncertainty that surrounds us, associations may not be able to open pools at their traditional seasonal dates. Even if the pools are allowed to be open, if social distancing guidelines remain in place, associations would be forced to monitor and put in crowd control measures. If pools do not open due to COVID-19 restrictions, boards should review their contracts with pool companies to determine whether payments and services are suspended or even excused. Terms like "force majeure" and "act of God" may affect the terms of these contracts. You should contact your manager and attorney to review the terms of your pool contract to see what the association's responsibilities and duties are under the law and the contract terms. The need for review applies to any vendor contract, (e.g. landscaping), where the vendor may not be, or has not been, determined to be "essential", as well as to contracts with vendors who may temporarily suspend services by choice. Each contract is different and it is incumbent on boards to act appropriately, using sound business judgment, when acting under such contracts.

We are in a unique, challenging time. However, we should be encouraged by the response of our members in working together for everyone's safety and also be optimistic that when this is over, we will be stronger and wiser. Please stay safe and healthy.

Please do not hesitate to contact us if you have any question about these issues or any other issues.