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CAN ALERT: Federal Pool Requirements That Could Shut Down Your Community Pool in December.

Dear  On December 19, 2007, the President signed into law the Virginia Graeme Baker Pool and Spa Safety Act (the "Act"). This law was named after the daughter of Nancy Baker and the granddaughter of former Secretary of State James Baker who drowned in June 2002 after the suction from a spa drain trapped her under the water. This Act was first introduced by Florida Representative Debbie Wasserman-Schultz. The Act specifies that on or after December 19, 2008, swimming pool and spa drain covers available for purchase in the United States must meet specific performance requirements. Additionally, public swimming pools, wading pools, spas and hot tubs must meet requirements for installation of compliant drain covers. New drain covers which meet the current standard are now beginning to make their way into the marketplace. Additionally, in certain instances, public pools and spas must have additional devices or systems designed to prevent suction entrapment. The Act defines the term "public pool and spa" to include a pool or spa that is open to residents of a multi-unit apartment building, apartment complex, residential real estate development, or other multi-family residential area. Thus, pools and spas found in condominium, cooperative, homeowners' associations, timeshares, and mobile home communities must be in compliance with the Act. These federal safety requirements will apply to your community association pool regardless of when the pool was constructed, as of December 19,2008, unless there are multiple drains already in place. If your pool is not in operation on December 19, 2008, these requirements will not apply until your pool returns to operation. Section 1404(c)(1)(A)(i) of the Act provides, "Beginning 1 year after the date of enactment of this title, each public pool and spa in the United States shall be equipped with anti-entrapment devices or systems that comply with ASME/ANSI A112.19.8 performance standard, or any successor standard." Because the Act does not limit the requirement to pools and spas constructed one year after the date of enactment, general interpretation is that this requirement applies to all public pools and spas meeting the definition of public pool and spa in section 1404(c)(2) of the Act, regardless of the pool or spa's date of construction. Section 1404(c)(1)(A)(ii) of the Act further provides, "each public pool and spa in the United States with a single main drain other than an unblockable drain shall be equipped, at a minimum, with one or more of the following devices or systems designed to prevent entrapment by pool or spa drains." The requirement that a public pool or spa be equipped with an anti-entrapment device or system applies to public pools or spas with a single main drain other than an unblockable drain. Thus, a plain reading of the statute indicates that pools and spas with multiple main drains are excluded from this provision. If a pool or spa subject to the Act has more than one independent drain served by a separate, dedicated pump, then each such drain is a "single main drain" and must comply with the requirements of Section 1404 (c)(1)(A)(ii). This federal law contains no provision on its preemptive effect and, therefore, does not by its terms expressly preempt state law. However, section 1404(b) of the Act has been deemed by Congress to be a "consumer product safety rule" under the Consumer Product Safety Act. For this reason, it is believed that the preemptive provisions of Section 26 apply directly to the Section 1404(b) requirement that all swimming pool or spa drain covers manufactured, distributed, or entered into commerce in the United States conform to ASME/ANSI A112.19.8. Drain covers or other anti-entrapment systems or devices marketed or sold in the U.S. on or after December 19, 2008 need to meet the new federal standard. The fact that the Act lays out "minimum" requirements suggests that States can pass greater restrictions in this regard. The impact of the Act on a particular state law or regulation needs to be analyzed on a state by state basis. Section 1404(a) provides that the requirements in section 1404(b) are to be treated as a consumer product safety rule issued by the Consumer Product Safety Commission (CPSC) under the Consumer Product Safety Act. The statute sets forth specifically that "a violation of section 1404(c)(1) is to be considered a violation of section 19(a)(1)of the Consumer Product Safety Act and may also be enforced under section 17 of the CPSA." If your community has a pool or a spa, please make sure to discuss these federal safety requirements with your property manager, your association attorney and/or a licensed engineer to determine whether or not your pool or spa will meet these requirements as of December 19, 2008. If you have more questions about whether or not your community pool or spa will be compliant come December 19, 2008, please contact the CPSC at info@cpsc.gov or by phone at 800-638-2772 (TTY 800-638-8270). Hotline staff are available from 8:30 to 5:00 ET or you can leave a message any time to receive a return call. Best Regards, Donna D. Berger, Esq. Executive Director of the Community Advocacy Network (CAN) Telephone: 954.315.0372 Facsimile: 954.315.0373 Web: www.canfl.com Email: dberger@canfl.com

For more information, please contact Donna Berger at (954) 315-0372 or via email at dberger@canfl.com