.2402261628374.png "The McIntosh Law Firm")
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 here.
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:
- Self-isolation - if you are sick, stay home,
- Practice social distancing of at least six feet distance to the greatest extent
- possible,
- Wash hands frequently (20 seconds with soap and water or use of a sanitizer that contains at least 60% alcohol),
- 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),
- Avoid touching of eyes, nose and mouth with unwashed hands,
- 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)
- Cover mouth and nose when you cough or sneeze and throw used tissues away immediately after use,
- Avoid using other employees' phones, desks, offices or other work tools and
- equipment when possible, or disinfect them before and after use,
- Minimize the use of soft surfaces like cloth covered chairs or area rugs that are
- 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:
- 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.
- 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.
- 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.
- 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.
- Hand sanitizer should be provided for use by all staff and visitors.
- Signs and/or examples of six foot areas related to social distancing should be posted.
- Full compliance with SC Public Swimming Pool Regulation 61-51 is always required.
- Remove from service or regularly disinfect sharable equipment (for example, kick boards, floats, etc.)
- Consider lane reservations to allow family groups to use a lane or specific area of a pool.
- Consider a phased approach to opening that brings back lane swimming and limited number participant classes before opening for general swimming.
- Life guards should continue to follow universal precautions when rendering first aid of any type to patrons.
- Follow CDC guidelines regarding cleaning and disinfecting.
- Follow CDC guidelines for public pools, hot tubs and water playgrounds.
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 these following additional resources for your information: