Senate Bill 442 The Pool Safety Act

Legal Disclaimer NOTICE: This presentation is based on the presenter's experience. It is not specific legal advice and should not be relied upon in place of consultation with a locally experienced and licensed attorney who can review your particular situation.  This presentation includes information that is designed to inform the attendee of the basics of the new laws and not interpret them.  This material is not a complete analysis of the topic and does not create a standard of care in the industry. Copyright © California Real Estate Inspection Association. All rights reserved.

Definitions of a Swimming Pool A “swimming pool” or “pool” means any structure intended for swimming or recreational bathing that contains water over 18 inches deep. “Swimming pool” includes in-ground and above ground structures and includes, but is not limited to, hot tubs, spas, portable spas, and nonportable wading pools. “Public swimming pool” means a swimming pool operated for the use of the general public with or without charge, or for the use of the members and guests of a private club. Public swimming pool does not include a swimming pool located on the grounds of a private single-family home.

Previous Law When a permit is issued for a new or remodeled (1997) pool or spa at a private, single family home: Pool or spa is required to have at least 1 of 7 drowning prevention safety features. The local building code official was required to inspect and approve the drowning prevention safety features prior to final.

New Law When a real property, with a swimming pool or spa, is transferred AND a home inspection is performed, an appropriate inspection shall include: Which, if any, of seven drowning safety features (from subdivision (a) of Section115922 of the Health and Safety Code) the pool or spa is equipped. AND Specifically state if the pool or spa has fewer than TWO of the listed drowning prevention safety features.

Health And Safety Code Section 115925 The requirements do not apply to any of the following: -Public swimming pools -Spas or hot tubs with locking safety covers that comply with ASTM F1346. Locking covers shall include provisions to inhibit children under five years of age from removing or operating the cover. (Keys, combination locks, special tools, devices or inaccessible locations, etc.) -An apartment complex or any residential setting other than a single family home.

See California Building Code, Title 24 3109.4 – 3109.4.4 Important! Remember that the Pool Safety Barrier Act (SB 442) DOES NOT Address Perimeter Fencing! See California Building Code, Title 24 3109.4 – 3109.4.4 Note: There may be local exceptions and variations for larger properties. Check with your local AHJ.

A perimeter fence that separates your yard from the neighboring properties. A few of the mandatory features are: Remember these are not new requirements! Here are some, but not limited to:

- Gates shall open away from the swimming pool. - Gates shall be self-closing with a self-latching device located a minimum of 54 inches from the bottom of the gate. - Where the release mechanism of the self- latching device is located less than 54 inches from the bottom of the gate, the release mechanism shall be located on the pool side of the enclosure at least 3 inches below the top of the gate and the gate and enclosure shall have no opening greater than 1/2 inch within 18 inches of the release mechanism.

-. Any gates other than pedestrian access gates - Any gates other than pedestrian access gates shall be equipped with lockable hardware or padlocks and shall remain locked at all times when not in use. - Maximum vertical clearance from the ground to the bottom of the enclosure shall be 2 inches. The maximum vertical clearance at the bottom of the enclosure may be increased to 4 inches when the grade is a solid surface such as a concrete deck or when the enclosure is mounted on the top of the above-ground pool structure.

-. Gaps or voids, if any, shall not allow passage of - Gaps or voids, if any, shall not allow passage of a sphere equal to or greater than 1-3/4 inches in diameter. For fencing composed of vertical and horizontal members, the spacing between vertical members may be increased up to four inches when the distance between the tops of horizontal members is 45 inches or more. - Enclosures shall have an outside surface free of protrusions, cavities or other physical characteristics that would serve as handholds or footholds that could enable a child below the age of five years to climb over.

Chain link fences used to separate the swimming pool from neighboring properties shall not be less than 11.5 gauge and the mesh size shall not be larger than 2-1/4-inch square. Chain link fences used to separate the swimming pool from the home shall not be less than 11.5 gauge and the mesh size shall not be larger than 1-3/4-inch square.

Important Note! Remember the perimeter barrier is NOT to keep children IN the yard with the pool or spa! The perimeter barrier is to keep small children OUT of the yard with the pool or spa! o Enclosures shall be a minimum height of 60 inches measured on the side of the enclosure that faces away from the swimming pool.

-. Enclosures shall have an outside surface free - Enclosures shall have an outside surface free of protrusions, cavities or other physical characteristics that would serve as handholds or footholds that could enable a child below the age of five years to climb over. Remember! Walk the yard and look over the barrier! All of the these requirements are to keep small children OUT and not IN!

Your inspected property does not have a pool or spa but the neighboring property does!?! What if you observe a pool or spa on a neighboring property? It is our responsibility to report on defects or deficient conditions that effect Health and Safety! It is suggest that that you inspect the fence and report deficiencies to your clients. All of the these requirements are to keep small children OUT and not IN!

The Seven Possible Specified Pool Safety Barriers Requirements are:

Safety Feature One An enclosure that meets the requirements of HSC 115923 AND isolates the swimming pool and spa from the private single family home. Definition of enclosure: “Enclosure means a fence, wall, or other barrier that isolates the swimming pool from access to the home.” A. Any access gate through the enclosure must open away from the swimming pool and be self-closing with a self-latching device no lower than 60 inches from the ground. B. Minimum height of 60 inches. C. No more than 2 inches from the ground to the enclosure. D. Any gaps or voids cannot allow passage of a four inch sphere. E. The outside surface cannot have protrusions, cavities or characteristics which could allow a child younger than five to climb over.

Chain link fences used to separate the swimming pool from neighboring properties shall not be less than 11.5 gauge and the mesh size shall not be larger than 2-1/4-inch square. Chain link fences used to separate the swimming pool from the home shall not be less than 11.5 gauge and the mesh size shall not be larger than 1-3/4-inch square.

Safety Feature Two A removable mesh fence that meets ASTM F2286 standards in conjunction with a gate that is self-closing and self-latching AND can accommodate a key locking device. A. Top of fence has minimum height of 48 inches above grade. B. Supports and mesh attachment and other factors are designed to hinder a child’s ability to climb over. C. Any decorations on the mesh fence cannot afford the ability for a child to climb over. D. A hinged gate shall be present and the gate must be self- closing and self-latching, accommodate a locking device and open outward from the pool, spa or hot tub. The locking device must be 54 inches above grade and be located on the outside of the gate. E. There must be a clear zone of at least 20 inches between the barrier and the pool/spa/hot tub.

Safety Feature Two – Continued. F Safety Feature Two – Continued F. The fence must allow visibility from the outside of inside of the pool area (At least 40% open space). G. Mesh fence must be removable. H. The mesh fence must provide 360 degree protection and prevents unsupervised access to the pool. I. Latching devices which secure each barrier section shall be no lower than 45 inches above grade and provide security equal or greater than hook-and-eye-type latch with a spring retaining lever (safety gate hook) J. The mesh barrier cannot be higher than 1 inch from the deck or installed surface. K. The mesh barrier cannot allow a 4 inch sphere to pass through at any point.

Safety Feature Two - Continued. L Safety Feature Two - Continued L. There are other provisions that would not be considered part of a visual, non-invasive inspection. These include but are not limited to depth of embedment of support posts, tensile strength of the mesh, discoloration of the mesh, molding strip attachment, conductivity of embedment sleeves, performance tests, review of the assembly, presence of assembly, installations and instructions as to the use of the mesh barrier, documentation and labeling of the mesh barrier.

Safety Feature Three An approved safety pool cover Safety Feature Three An approved safety pool cover. Defined in HSC 115921. Definition of Pool Safety Cover: “An approved safety pool cover” means a manually or power-operated safety pool cover that meets ALL of the performance standards of ASTM standard F1346-91. Performance Standards of ASTM F1346-91 A. Static Load – If the width or diameter is more than 8 feet, the cover must be able to hold a weight of 485 pounds. If the width or depth of the pool is less than 8 feet, the cover must be able to hold a weight of 275 pounds. Conformance cannot be determined by a visual inspection and shall be determined by a specific test described in ASTM F1346-91.

B. Perimeter Deflection – The cover shall be designed to B. Perimeter Deflection – The cover shall be designed to not allow the “test object” (described in 9.2 of the standard) to pass between the cover in the side of the pool, or to gain access to the water. Conformance cannot be determined by a visual inspection and shall be determined by a specific test described in ASTM F1346-91. C. Surface Drainage – The cover shall be constructed or have an auxiliary system to substantially drain all standing water from the cover within a period of 30 minutes after cessation of normal rainfall. Conformance cannot be determined by a visual inspection and shall be determined by a specific test described in ASTM F1346-91.

D. Opening Tests – When tested by the method specified D. Opening Tests – When tested by the method specified in ASTM standard F1346-91, any opening between the edge of the cover and the deck surface or coping wall, or both, and the top surface of the pool or top surface of the spa is sufficiently small and strong to prevent the opening from being forced to a size that will allow the test object passed through. Conformance cannot be determined by a visual inspection and shall be determined by a specific test described in ASTM F1346-91. There are many other provisions referred to in ASTM Standard F1346-91 for a pool, spa and hot tub cover. These include but are not limited to markings (labeling) of the cover, fastening mechanisms, maximum opening width between the edge of the cover in the deck surface, product labeling and warning labeling.

Safety Feature Four Exit alarms on the private single-family home’s doors. Definition of Exit Alarm: “Exit Alarms” means devices that make audible, continuous alarm sounds when any door or window, that permits access from the residence to the pool area that is without any intervening enclosure, is opened or is left ajar. Exit alarms may be battery-operated or may be connected to the electrical wiring of the building. NOTE: The above definition is from Heath and Safety Code 115921. The definition includes “doors and windows”. However, H&C 115922, which defines our pool safety feature inspection responsibilities does not include window alarms.

Safety Feature Four Exit alarms on the private single-family home’s doors. The exit alarms are required on all doors (and maybe windows??) that provide direct access to the swimming pool or spa. The exit alarm may cause either an alarm noise or a verbal warning, such as a repeated notification that “the door to the pool is open.”

Safety Feature Five Self-Closing and self-latching devices on doors A self-closing, self latching device with a release mechanism placed no lower than 54 inches above the floor on the private single-family homes doors providing direct access to the swimming pool or spa.

Safety Feature Six A pool alarm Definition of a pool alarm: An alarm, when placed in a swimming pool or spa, will sound upon detection of accidental or unauthorized entrance into the water. The alarm shall meet and be independently certified to ASTM standard F2208 (Standard Safety Specification for Residential Pool Alarms). The specification includes surface motion, pressure, sonar, laser, and infrared type alarms. A swimming protection alarm feature designed for individual use, including an alarm attached to a child sounds when the child exceeds a certain distance or become submerged in water, is not a qualifying drowning prevention safety feature.

Safety Feature Six – Continued Surface Alarms and Subsurface Alarms shall provide for the automatic sound of the alarm when tested in accordance with ASTM standard F2208 – 08 section 6.1. Conformance cannot be determined by a visual inspection and shall be determined by a specific test described in ASTM F2208-08. The test involves the use of a specified mannequin (Called Rescue Timmy which meets the requirements of the National Center(s) for Disease Control for a one-year old child.) The test involves five (5) separate drop tests, two (2) vertical drop tests and three (3) horizontal drop tests. Pool Perimeter Alarm shall provide for the automatic sound of the alarm when tested in accordance with ASTM standard F2208 – 08 section 6.4. Conformance cannot be determined by a visual inspection and shall be determined by a specific test described in ASTM F2208-08. The test also involves introducing “Rescue Timmy” three times into the water at a specified angles.

Safety Feature Seven Other Means of Protection Other means of protection, if the degree of protection afforded is equal to or greater than the afforded by any of the features set forth in the previous safety features and has been independently verified by an approved testing laboratory as meeting standards for those features established by the ASTM or the American Society of Mechanical Engineers (ASME).

What is our responsibility What is our responsibility? SB 442 requires, when there is a home inspection on a single-family home with a pool, that the home inspector shall conduct a noninvasive physical examination of the pool or spa. The home inspection report shall include which, if any, of the seven drowning safety features, listed in subdivision (a) of the Health and Safety Code, are present. The home inspection report shall specifically state if the pool or spa has fewer than two of the listed drowning prevention safety features.

What is our Standard of Care. Remember What is our Standard of Care? Remember! It is the duty of a home inspector who is not licensed as a general contractor, structural pest control operator, or architect, or registered as a professional engineer to conduct a home inspection with the degree of care that a reasonably prudent home inspector would exercise.

Home Inspection Report Writing Review It is not sufficient to merely state that a condition exists. State the implications of that condition, and make a specific recommendation or referral for repairs or replacement. The condition, the implications, and the recommendations are all essential in a professionally prepared home inspection report. It is imperative that a home inspectors employ the following Five-step Formula when preparing an inspection report.

1. Locate. Where is it. 2. Identify. What is it. 3. Describe 1. Locate Where is it? 2. Identify What is it? 3. Describe What is its condition? 4. Explain What does this mean? 5. Recommend What should be done?

Locate. Where is it. It may be helpful to add information to Locate Where is it? It may be helpful to add information to supplement any photos to help the client and/or their contractor to find the exact location of the defect, if it’s not that obvious.

Identify. What is it. You should clearly identify the item Identify What is it? You should clearly identify the item being inspected.

Describe What is its condition? Since SB 442 is about protecting small children from drowning, name the defect, defects and/or deficient conditions.

Explain What does it mean? Drowning Hazard.

Recommend. What should be done Recommend What should be done? Report what action should be taken on the conditions you noted and when should the action be taken. Give direction. It may be obvious, but we still need to tell them. Who should make repairs? Defer to a qualified professional – sometimes the repair may be costly or simply too dangerous for the home owner to try to do themselves.

ASTM STANDARD CITATIONS ASTM STANDARD CITATIONS The ASTM standards included in this presentation are referenced in SB 442. ASTM F1346-91 (Reapproved 2010), “Standard Performance Specification for Safety Covers and Labeling Requirements for All Covers for Swimming Pools, Spas and Hot Tubs,” ASTM International, West Conshohoken, PA, 2010, DOI: 10.1520/F1346-91R10, www.astm.org ASTM F2208-08 (Reapproved 2010), “Standard Safety Specification for Residential Pool Alarms,” ASTM International, West Conshohoken, PA, 2014, DOI: 10.1520/F2208-08R14, www.astm.org ASTM F2286-16, 2016, “Standard Design and Performance Specification for Removable Mesh Fencing for Swimming Pools, Hot Tubs, and Spas,” ASTM International, West Conshohoken, PA, 2014, DOI: 10.1520/F2286-16, www.astm.org

QUESTIONS?