Announcements

NEW MANDATORY REPORTING – 2018 Pool Safety Act & Home Inspections

 

 Starting January 1, 2018 these are mandatory reporting requirements of any home inspector performing an inspection of a home with a pool, whether or not the inspector is performing a pool inspection.

 

On October 11, 2017 Governor Brown signed into law SB 442.  The bill is known as the Pool Safety Act.   Review of the safety provisions in the bill are now the responsibility of the homes inspector.

The following information has been provided by the California Real Estate Inspection Association as part of a legislative alert. 

David Pace will be presenting this information at the Silicon Valley Chapter’s January Meeting on Wednesday January 10th.    Additionally, a half day training with Dave Pace, a pool contractor and an attorney will take place Saturday, February 3.  More information is present on this website.

 

SB-442 What Does It All Mean

David Pace, MCI, Chair, Legislative Committee

On October 11, 2017 Governor Brown signed into law SB 442.  The bill is known as the Pool Safety Act.  The bill is very similar to one, which the governor vetoed during the previous legislative session. His stated reason for the veto was that pool safety is the primary the responsibility of parents. 

The Reason For The Bill
The reason stated is contained within the bill.

“According to both federal Centers for Disease Control and Prevention’s National Center for Injury Prevention and Control and the State Department of Public Health’s EpiCenter data, drowning is the second leading cause of death for California children one to four years of age inclusive. EpiCenter data shows that between the years 2010 and 2014 more than 160 children one to four years of age, inclusive, suffered fatal drownings, with the majority of the incidents involving residential pools, and between the years 2010 and 2015 more than 740 children one to four years of age, inclusive, were hospitalized after suffering a near drowning incident with the leading cause of hospitalization being brain injury due to the lack of oxygen, also known as asphyxiation.”

The bill goes on to say:

“Additional children suffer near drowning incidents and survive, but many of those children suffer irreversible brain injuries, which can lead to lifelong learning deficiencies that impact not only the affected child and his or her family, but also the resources and moneys available to California’s health care system, regional centers, and special education school programs. The State Department of Developmental Services reported that as of December 2016 the agency was providing care for more than 755 near-drowning victims with severe brain damage resulting from the near drowning.”

The legislature also finds and declares:

“Close parental supervision of children with access to swimming pools is essential to providing pool safety for children. Barriers, such as those required pursuant to section 115922 of the Health and Safety Code, can help deter young children from gaining unsupervised access to pools.”

CREIA’S Position on the Bill
During this last legislative session Jerry Desmond, our legislative advocate, and I met on several occasions with the office of Senator Newman, the author of the legislation, as well as the primary representatives of the 40 bill sponsors to learn of their concerns and to set forth our perspective on how best to meet those concerns.  Over the course of several months CREIA produced a SB-442 White Paper setting forth our perspective and offered proposed amendments to the bill.  In our meetings I argued:

  1. The bill will only effect a fraction of residential pools in California.
    2.  Home inspectors are not certified or capable of validating that safety provisions are compliant with ASTM standards.
    3.  Home inspectors cannot verify that pool barriers are properly installed or that pool alarms function properly.
    4.  Home inspectors identify items, as they exist at the time of the inspection.
    5.  Professional Pool inspectors are best equipped and trained to identify pool safety devices.
    6.  This bill significantly increases legal exposure for home inspectors who are not trained or qualified to make responsible evaluations.
    7.  A prudent home inspector will defer specific evaluation of safety devices to a qualified professional.
    8.  Each home inspector will need to secure their own copy of the various ASTM Standards to find out what standards they are expected to adhere to.
    9.  Inspection fees will increase by as much as 30%.
    10.  Insurance cost for home inspectors will increase.
    11.  The provisions of this bill are best addressed by professional pool inspectors who have the background, experience and training to perform pool inspections.  
    12.  Home owners should provide all appropriate disclosures and documentations related to the pool and pool safety provisions.
    13.  THERE IS NO REQUIREMENT TO MAKE ANY SAFETY REPAIRS

During our conversations with Senator Newman’s office and the sponsors of the bill, I made it clear that the reason CREIA exists is to “To protect lives, health and investments.” That is our Vision Statement.  Safety was never the question.  The question was, who is best qualified to review the safety provisions specified by the bill.  Review of those safety provisions are now the responsibility of the homes inspector.  

Preliminary Thoughts and Considerations
1.  Regarding the Nature of our Inspection
Our inspection of pool safety features is not unlike our inspection of other aspects of the home itself.  7195 (a)(1) states that a “Home inspection is a noninvasive, physical examination… of the mechanical, electrical, or plumbing systems or the structural and essential components of a residential dwelling of 1 to 4 units designed to identify material defects in those systems, structures, and components.”

Section 7195(a)(2) states, “In connection with the transfer, as defined in subdivision (e), of real property with a swimming pool or spa, an appropriate inspection shall include a noninvasive physical examination of the pool or spa and dwelling for the purposes of identifying” the safety features present.  

Our inspection of the safety features is to be “appropriate.”  Merriam-Webster defines “appropriate” as “especially suitable or compatible: fitting.” The task of our inspection if further defined to be a “noninvasive physical examination.”  As we shall see later many of the safety features cannot be verified by a noninvasive physical examination.  (I would not think it appropriate to get two adults and one child to walk out onto a pool cover to make sure it meets the 485 lb. (220.0 kg) static load test required by ASTM 1346.)

2.  Regarding the Nature of our Inspection Report.
7195 (c) states “A ‘home inspection report’ is a written report…(that) clearly describes and identifies the inspected systems, structures, or components of the dwelling, any material defects identified, and any recommendations regarding the conditions observed or recommendations for evaluation by appropriate persons.”  It goes on to state, “in a dwelling with a pool or spa, the report shall identify which of any of the seven drowning prevention safety features listed in sub division (a) of section 115922 of the Health and Safety Code the pool or spa is equipped with and shall specifically state if the pool or spa has fewer than two of the listed drowning prevention safety features.”  

Our “appropriate,” “noninvasive physical examination” observations of the pool safety features are to be a part of the “home inspection report” in which we describe and identify conditions and provide recommendations for evaluation by appropriate persons.  Our standard of care is not that of a trained and qualified ASTM professional.  Our standard of care is that of a reasonable prudent home inspector (7196).  To be sure we need to be careful and diligent in our inspection, our standard of care requires it.  When we see a foundation deficiency, we do not play engineer.  We recommend further evaluation by a qualified and registered engineer and appropriate repairs be made.  When we see a fried breaker in a sub-panel, we do not play electrician.  We recommend further evaluation and repair by a qualified and licensed electrician.  Inspection of pool safety features is no different.

What Does The Bill Require
The bill requires:

  1. When a single family residence with a pool (see definitions below) is transferred and a home inspection is performed on the home, the home inspection report shall identify which, if any, of seven specific drowning prevention safety features are present. Those safety features are defined in section 115922 of the Health & Safety Code.

    2.  The home inspection report shall specifically state if the pool or spa has fewer than two of the listed drowning prevention safety features.

Applicable Definitions  (Health and Safety Code 115921)
Section 11591 defines terms related to the requirements of the Bill.

 “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 non-portable 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.

Enclosure” means a fence, wall, or other barrier that isolates a swimming pool from access to the home.

Approved safety pool cover” means a manually or power-operated safety pool cover that meets all of the performance standards of the American Society for Testing and Materials (ASTM), in compliance with standard F1346-91.

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.

 The Seven Drowning Safety Provisions (Health and Safety Code 115922)
Section 115922 of the Health and Safety Code states that “Except as provided in Section 115925, when a building permit is issued for the construction of a new swimming pool or spa or the remodeling of an existing swimming pool or spa at a private single-family home, the respective swimming pool or spa shall be equipped with at least two of the… seven drowning prevention safety features.”

The requirement for the safety features is triggered by the issuance of a permit for the construction or remodeling of a pool or spa.  An inspection by the local building department is required prior to the issuance of a final approval.

With the passage of this bill, inspection of safety features is also triggered when a home inspection is completed on a single-family home with a swimming pool in conjunction with the transfer of a property.  NOTE that there is no requirement for there to be a pool inspection AND there is no requirement for a pool inspection to verify the presence of the “2 of 7” safety features.  It only applies when there is a transfer of the property with a swimming pool and a home inspection is performed on the single family home.  

Safety Feature One – Health and Safety Code 115922 (a)(1)
“An enclosure that meets the requirements of section 115923 and isolates the swimming pool or spa from the private single-family home.”

As noted earlier an “Enclosure” means a fence, wall, or other barrier that isolates a swimming pool from access to the home.  There are six characteristics for an enclosure to comply with the bill.  All six are required or the enclosure does not meet the requirement of the legislation.  The first five requirements are from section 115923. 

  1. Any access gates through the enclosure must open away from the swimming pool, and must be self-closing with a self-latching device placed no lower than 60 inches above the ground.
    2.  The enclosure must be a minimum height of 60 inches.
    3.  The maximum vertical clearance from the ground to the bottom of the enclosure shall be no more than 2 inches.
    4.  Any gaps or voids in the enclosure shall not allow passage of a sphere equal to or greater than 4 inches.
    5.  The outside surface shall be 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 the enclosure.
    6.  The enclosure shall isolate the swimming pool or spa from the private single-family home. [Health and Safety Code 511922 (a)(1)]
    If ALL six are present the enclosure meets the requirements as a safety feature.

 Safety Feature Two – Health and Safety Code 115922 (a)(1)
“Removable mesh fencing that meets American Society for Testing and Materials (ASTM) Specifications F2286 standards in conjunction with a gate that is self-closing and self-latching and can accommodate a key lockable device.”

ASTM F2286 is a document, which includes many design and performance requirements.  

Some of the design requirements can be measured.

  • The top of a fence or wall used as a barrier needs to be a minimum of 48 inches above the exterior side of the grade.
  • If there is a hinge to gate used in addition to, or as part of the mesh safety barrier, the gate shall be self-closing and self-latching.  The gate shall accommodate a locking device and open outward from the pool, spa or hot tub.  The locking device shall be located a minimum of 54 inches above the grade and be mounted on the outside of the gate.
  • There must be a clear zone of 20 inches between the barrier and the pool/spa/hot tub.
  • There must be a latching device no lower than 45 inches above grade for each barrier section.  The latching device needs to provide security equal to or greater than that of a hook-and-eye-type latch incorporating a spring actuated retaining lever.
  • The bottom of the mesh barrier can be no more than 1 inch above the deck or surface grade.

 Some of the design requirements may not be conclusively verified.

  • The distance between vertical support poles and the attached mesh shall be designed and fabricated to hinder the child’s ability to climb the mesh safety barrier.
  • Any decorative details cannot allow a child to use those details to climb mesh safety barrier.
  • The mesh safety barrier shall be removable.
  • The mesh safety barrier shall continuous and constant protection.  When used outdoors or in an unenclosed pool/spa/hot tub, the mesh safety barrier may provide 360° protection or may be attached to another property or perimeter fence to prevent unsupervised access to the pool.

Many of the requirements of ASTM F2286 CANNOT be verified by a non-invasive physical examination of the safety feature. 

  • There 40% open space requirement in the mesh to allow visibility from the outside to the inside of the mesh fence.
  • The posts shall be embedded 3 inches below grade and be spaced no more than 40 inches apart.
  • There is a tensile strength test requirement for the mesh material.
  • There is a discoloration test for the mesh material.
  • There is a specific screw size requirement for attachment of a molding strip to the vertical posts.
  • The deck sleeves shall be of a non-conductive material.
  • There are specific Vertical Load Test and Impact Tests.
  • There are labeling and warning sign requirements for the mesh safety barrier.

This raises the question, “Can any mesh fence be considered fully compliant by means of a non-invasive physical examination?”

Safety Feature Three – Health and Safety Code 115922 (a)(1)
“An approved safety pool cover, as defined in subsection (d) of section 115921.”

ASTM F1346-91 is a seven page, two-column document that contains many design and performance requirements.  

The requirements include but are not limited to:

  • Knowledge of the materials and manufacturing process.
  • Knowledge of the installation and the delivery of detailed instructions for installation.
  • Extensive labeling requirements for the cover.  (These include product labeling, warning labeling, proper signal words, safety alert symbols, word messaging, label color, font size, letter style, life expectancy of the cover, cover protection advice, attachment of the labels, replacement of labeling, instruction/use labeling, packaging labeling and compliance labeling.)
  • Proper markings for the safety cover are to include manufacturer’s name, date manufactured or installed and instructions to the consumer to inspect the cover for premature wear or deterioration.
  • No visible damage to seams, ties or welds that will impair intended performance of the device when subjected to safety cover tests.
  • No gaps or openings between the cover and the deck surface or coping wall or both which could allow passage a test object to gain access to the water or be subject to entrapment.
  • There are specific test requirements and test methods for testing Static Load, Perimeter Deflection, Surface Drainage and Opening Tests.

 Most of the requirements of ASTM F1346 CANNOT be confirmed by means of a non-invasive physical examination.

Safety Feature Four – Health and Safety Code 115922 (a)(1)
“Exit alarms on the private single-family homes doors that provide direct access to the swimming pool or spa. The exit alarms may cause either and alarm noise or a verbal warning, such as a repeated notification that ‘the door to the pool is open.'”

As indicated earlier, an exit alarm 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. (Health and Safety Code 115921)

Exit alarms are required on ANY door or window that permits access from the residence to the pool area without an enclosure between the pool and the residence.  The exit alarm is required to make an audible sound when the door or window is opened or is left ajar.  If a door or window is opened the alarm must sound. The exit alarm may be battery operated or hard wired.

Safety Feature Five – Health and Safety Code 115922 (a)(1)
“A self-closing, self-latching device with a release mechanism placed no lower than 54 inches above the floor on the private single-family home’s doors providing direct access to the swimming pool or spa.”

Any door providing direct access to the swimming pool or spa must be self-closing and self-latching.  Does this include sliding glass doors?  Yes, ANY door.  In addition to the door being self-closing and self-latching there must be a release mechanism no lower than 54 inches above the floor.  This can be in addition to the standard lock mechanism.

Safety Feature Six – Health and Safety Code 115922 (a)(1)
“An alarm, when placed in a swimming pool or spa, will sound upon detection of accidental or an authorized entrance into the water. The alarm shall meet and be independently certified to the ASTM standard F 2208 ‘Standard Safety Specification for Residential Pool Alarms,’ which 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 that sounds when the child exceeds a certain distance or become submerged in water, is not a qualifying drowning prevention safety feature.”

The key phrase is the exit alarm “shall meet and be independently certified to ASTM standard F 2208”.  All exit alarms complying with this standard SHALL be labeled or marked “Meets requirements of ASTM Safety Specification F 2208″.”  The name, model number, date of manufacturer, and contact information is required to be placed permanently on the product as appropriate.

There are four classifications of alarms, Surface, Subsurface, Pool Perimeter and Personal Immersion Alarms.

Most of the requirements of ASTM F2208-08 CANNOT be confirmed by means of a non-invasive physical examination.

These include but are not limited to:

  • Alarm shall sound within 20 seconds both at the pool and within the residence via a remote receiver.
  • The operational condition of the alarm shall be made known by means of an energized lamp at a distance of 10 feet +/- 1 foot and specified at a specified angle of view (45 degrees from perpendicular +/- % degrees).
  • The alarm must have a minimum rating of 85 dba.
  • If the alarm is battery operated there must be a low-battery indicator.
  • The alarm must automatically reset.
  • Wireless alarms must be FCC Part-15 compliant.
  • If the alarm deactivates or has reduced sensitivity due to environmental factors, the alarm must provide a visual and audible warning.
  • There are various tests and test procedures for each type of alarm.  Child tests may include repeated drop tests, vertical drop tests and horizontal drop tests using a child intrusion simulator called “Rescue Timmy” who meets the requirements of the National Center(s) for Disease Control for a one year old child.
  • Instructions are required to be shipped with each unit using ANSI Z53 5.6 as a guide.  At a minimum the instructions shall address proper installation, any needed adjustments, size and shape limitations of the pool, troubleshooting instructions, contact information for the manufacturer, power or battery requirements, recommended distance from transmitter to receiver and a statement that states: “This device is not intended to replace any other safety consideration; that is, adult supervision, lifeguards, fences, gates, pool covers, locks, and so forth, and some devices may not detect gradual entry.”

 Safety Feature Seven – Health and Safety Code 115922 (a)(1)
“Other means of protection, if the degree of protection afforded is equal to or greater than that afforded by any of the feature set forth above and has been independently verified by an approved testing laboratory as meeting standards for those features established by ASTM or the American Society of Mechanical Engineers (ASME).”

While I cannot confirm, I do not believe a “Baywatch” lifeguard qualifies.

What do I report?
The bill requires that we identify which, if any, of the 7 specified safety drowning prevention safety features the pool or spa is so equipped.  Further we are required to specifically state if the pool or spa has fewer than two of the listed drowning prevention safety features.

To identify is to “say what something is.”  Merriam-Webster lists many synonyms for identify.  They include the words: distinguish, pinpoint, locate, examine, inspect, investigate, notice, scrutinize, disclose, discover etc.  A prudent home inspector (the standard to which we are held) will identify the pool safety deficiencies (material defects) he or she is able to as specified in the bill.  It is obvious many of the provisions of the bill cannot be identified within the confines of our non-invasive physical inspection.  As with any other aspect of our home inspection, if we can’t inspect it…disclose it.

Are there exceptions to the bill?
Section 115925 was amended to indicate there are three exceptions to the bill.

1.  Public swimming pools.
2.  Hot tubs or spas with locking safety covers that comply with the American Society for Testing and Materials (ASTM F1346).
3.  An apartment complex, or any other residential setting other than a single-family home.

This article will also appear in the next issue of the magazine and is also posted on the Website in the Legislative Alert section.

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