New Face Covering Guidelines Go Into Effect on June 15, 2021

By Jacquelyn E. Quinn, Esq.

On June 9, the California Department of Public Health (“CDPH”) issued updated Guidance for the Use of Face Coverings for the general public.

Until June 15, the following face covering guidance remains in effect:

  • For fully vaccinated persons, face coverings are not required outdoors except when attending crowded outdoor events, such as live performances, parades, fairs, festivals, sports events, or other similar settings.
  • For unvaccinated persons, face coverings are required outdoors any time physical distancing cannot be maintained, including when attending crowded outdoor events, such as live performances, parades, fairs, festivals, sports events, or other similar settings.
  • In indoor settings outside of one’s home, including public transportation, face coverings continue to be required regardless of vaccination status, unless an individual is exempt from wearing a face covering.

In the workplace, employers subject to the Cal/OSHA COVID-19 Emergency Temporary Standards (ETS), must ensure that all workers are provided and properly wear face coverings as required by the ETS.

On June 15, the following face covering guidance will go into effect:

Masks are not required for fully vaccinated individuals, except in the following settings where masks are required for everyone, regardless of vaccination status:

  • On public transit (examples: airplanes, ships, ferries, trains, subways, buses, taxis, and ride-shares) and in transportation hubs (examples: airport, bus terminal, marina, train station, seaport or other port, subway station, or any other area that provides transportation).
  • Indoors in K-12 schools, childcare and other youth settings.
  • Note: This may change as updated K-12 schools guidance is forthcoming, pending updates for K-12 operational guidance from the CDC.
  • Healthcare settings (including long term care facilities).
  • State and local correctional facilities and detention centers.
  • Homeless shelters, emergency shelters and cooling centers.

Additionally, masks are required for unvaccinated individuals in indoor public settings and businesses (examples: retail, restaurants, theaters, family entertainment centers, meetings, state and local government offices serving the public).
In settings where masks are required only for unvaccinated individuals, businesses, venue operators or hosts may choose to:

  • Provide information to all patrons, guests and attendees regarding vaccination requirements and allow vaccinated individuals to self-attest that they are in compliance prior to entry.
  • Implement vaccine verification to determine whether individuals are required to wear a mask.
  • Require all patrons to wear masks.

Please note, no person can be prevented from wearing a mask as a condition of participation in an activity or entry into a business. In workplaces, employers are subject to the Cal/OSHA COVID-19 Emergency Temporary Standards (ETS) or in some workplaces the Cal/OSHA Aerosol Transmissible Diseases standard, and should consult those regulations for additional applicable requirements.
Exemptions to masks requirements:
The following specific settings are exempt from face covering requirements:

  • Persons in a car alone or solely with members of their own household,
  • Persons who are working alone in a closed office or room,
  • Persons who are obtaining a medical or cosmetic service involving the nose or face for which temporary removal of the face covering is necessary to perform the service,
  • Workers who wear respiratory protection, or
  • Persons who are specifically exempted from wearing face coverings by other CDPH guidance.

The following individuals are exempt from wearing masks at all times:

  • Persons younger than two years old. Very young children must not wear a mask because of the risk of suffocation.
  • Persons with a medical condition, mental health condition, or disability that prevents wearing a mask. This includes persons with a medical condition for whom wearing a mask could obstruct breathing or who are unconscious, incapacitated, or otherwise unable to remove a mask without assistance.
  • Persons who are hearing impaired, or communicating with a person who is hearing impaired, where the ability to see the mouth is essential for communication.
  • Persons for whom wearing a mask would create a risk to the person related to their work, as determined by local, state, or federal regulators or workplace safety guidelines.

California is Planning to Reopen on June 15, 2021

By Jacquelyn E. Quinn, Esq.

It is the announcement we have all been waiting for. On June 15, California will move Beyond the Blueprint for a Safer Economy. Meaning, most community association activities and facilities will be permitted to return to usual, pre-pandemic operations under the State’s guidance and the State’s purple, red, orange and yellow tiers will be eliminated.

Beginning June 15, California will no longer impose capacity limitations, physical distancing requirements or vaccine verification/negative testing in indoor and outdoor settings, with an exception for “mega events.” Mega events are events that bring together large crowds of greater than 5,000 (indoors) and 10,000 (outdoors) attendees. Vaccine verification/negative testing will continue to be required for indoor mega events and recommended for outdoor mega events.

As far as face coverings, now and beyond June 15, all individuals and businesses must continue to follow the California Department of Public Health face covering guidance. It is anticipated that California will update its face covering guidance to generally align with the CDC’s guidance regarding face coverings on or around June 15. Therefore, it is important to check the State’s face covering guidance for updates.

It is also important to note that counties and cities are allowed to impose COVID-19 requirements that are more restrictive than the State’s guidelines. Therefore, community association boards should confirm whether there are any requirements or orders issued by the county or city related to common area reopening’s before making decisions regarding how to proceed.

While very limited measures will remain, community associations may be able to see life getting back to a pre-pandemic normal beginning June 15.

Conducting Board Meetings in a Post-Pandemic World

By Rhonda R. Adato, Esq.

Governor Gavin Newsom proclaimed a State of Emergency in California as a result of the threat of COVID-19 on March 4, 2020. Much has happened since then, but we thankfully seem to be approaching the end of the pandemic. California officials reported one hundred thirty confirmed cases in California per 100k of COVID-19 on May 24, 2021, down from a peak of twenty-eight thousand, five hundred fifty confirmed cases in California per 100k on January 9, 2021 (https://covid19.ca.gov/state-dashboard/).  The State also reported that as of May 26, 2021, 49.7% of California’s population has been fully vaccinated, with over six million available doses on hand (https://covid19.ca.gov/vaccination-progress-data/).

Public health restrictions are loosening as a result of these heartening statistics. The State announced that it will lift capacity and distancing restrictions for most businesses and activities on June 15, 2021 (https://covid19.ca.gov/safer-economy/).

As California reopens, community associations are left to navigate the transition once again. This brings to mind one question in particular: are community associations required to resume in-person board meetings? Or can they continue to meet remotely?

Many associations transitioned to remote board meetings during the pandemic, for good reason. Federal, State and local public health authorities either prohibited or strongly recommended against gatherings. Community associations were understandably concerned about the potential liability associated with someone contracting COVID-19 at a board meeting. Remote meetings, supported by a number of different platforms like Zoom, Microsoft Teams and more, also offered a number of conveniences. Participants were able to log in from the safety of their own homes. Disruptive members could be muted or removed. Just as many people discovered the benefits of working from home during the pandemic, many associations similarly discovered the benefits of remote board meetings, and would like to keep to that routine.

The Open Meeting Act (“Act”) does not address this specific issue, mainly because the Act was not drafted with the pandemic in mind. The Act contemplates in-person meetings. For example, Civil Code section 4925(a) states “[a]ny member may attend board meetings, except when the board adjourns to” or meets solely in executive session. While the Act authorizes teleconference meetings, it still requires an association to provide a physical location where a member can observe the proceedings. Specifically, Civil Code section 4090(b) states that any notice of an open, teleconference board meeting must “identify at least one physical location so that members of the association may attend, and at least one director or a person designated by the board shall be present at that location. Participation by directors in a teleconference meeting constitutes presence at that meeting as long as all directors participating are able to hear one another, as well as members of the association speaking on matters before the board.”

For the time being, associations should aim to comply with current public health regulations regarding gatherings. Until June 15, 2021, the State’s tier system is still in place, which prescribes guidance regarding gatherings depending on the COVID-19 statistics within specific counties. Local jurisdictions may also impose stricter regulations with respect to gatherings.

However, once the State reopens on June 15, 2021, and the pandemic continues to (hopefully) abate, it will likely become more difficult for associations to justify noncompliance with the Act. Associations may continue to meet remotely, over teleconference, but will likely need to designate a physical location per Civil Code section 4090. Associations should make sure to comply with any applicable COVID-19 restrictions when either hosting an in-person board meeting or offering members a physical location to observe a board meeting per Civil Code section 4090.

As we grapple with these questions, a solution might thankfully be coming down the pike. California State Senator Dave Min recently introduced Senate Bill 391, which, if chaptered, would add section 5450 to the Civil Code. Proposed Section 5450(b) would allow a board meeting to be conducted entirely by teleconference, without any physical location for the attendance of any director or member, as long as certain conditions are satisfied. Section 5450 would apply in the event of a state of emergency proclaimed by the State Governor under Government Code section 8625. This would allow associations to avoid the strictures of Civil Code section 4090 as long as a state of emergency is declared in California. This would, in turn, give community associations a little more time to transition to life after the pandemic.

Of course, it would be useful if the legislature passed legislation authorizing associations to conduct entirely remote board meetings at any time, whether or not a state of emergency exists. That would be one step forward in ushering the community association world into the digital age. One can only dream!

Please contact us or your community association counsel for any specific advice on this topic.

California Mask Mandate Remains in Place until June 15th

The State recently announced that its existing mask guidance would remain in place until, at least, June 15.  Under the State’s order, all individuals, regardless of vaccination status, must continue to wear face coverings when in all indoor settings outside of their home unless exempt from wearing face coverings in accordance with the guidance. Vaccinated individuals also continue to be required to wear face coverings outdoors when in a crowd.

The CDC recently announced that individuals who are vaccinated can resume activities without wearing a mask or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.

Therefore, community associations must continue to comply with the State’s existing mask guidance consistent with both the State and CDC guidance.

Southern California Tier Assignments as of May 18, 2021

 

As of May 18, 2021, the State has assigned these tiers to the following counties:

  • San Diego County: Tier 3 – Moderate (orange)
  • Riverside County: Tier 3 – Moderate (orange)
  • San Bernardino County: Tier 3 – Moderate (orange)
  • Los Angeles County: Tier 4 – Minimal (yellow)
  • Orange County: Tier 4 – Minimal (yellow)
  • Imperial County: Tier 3 – Moderate (orange)
  • Kern County: Tier 3 – Moderate (orange)
In accordance with California’s Blueprint for a Safer Economy, tier status goes into effect the Wednesday following each weekly tier assignment announcement on Tuesdays, unless otherwise directed by the State.

 

As a reminder, the tiers are:

  • Tier 1 – Widespread (purple)
  • Tier 2 – Substantial (red)
  • Tier 3 – Moderate (orange)
  • Tier 4 – Minimal (yellow)
See below and refer to the State’s website for more information on the status of activities open in each county.
For information regarding the tier assigned to your county visit the California COVID-19 Blueprint for A Safer-Economy webpage.

 

***

 

The State guidelines on the various sectors are as follows:

 

VENTILATION FOR INDOOR OPERATIONS

All businesses permitted to operate indoors based the State’s tiers must follow the California Department of Public Health’s interim Guidance for Ventilation, Filtration, and Air Quality. 

POOLS

Widespread (purple):
  • Outdoor pool operations may remain open.
  • Outdoor hot tubs may remain open only for use by one household group at a time or in cases where six feet of distancing can be maintained.
  • Indoor pools, saunas, hot tubs and steam rooms remain closed.
  • Associations must follow all applicable “Additional Considerations for Swimming Pools / Aquatic Venues” found in the State’s Industry Guidance for Gyms and Fitness Facilities.
Substantial (red):
  • Outdoor pool operations may remain open.
  • Outdoor hot tubs may open only for use by one household group at a time or in cases where six feet of distancing can be maintained.
  • Indoor pools, saunas, hot tubs and steam rooms remain closed.
  • Associations must follow all applicable “Additional Considerations for Swimming Pools / Aquatic Venues” found in the State’s Industry Guidance for Gyms and Fitness Facilities.
Moderate (orange):
  • Outdoor pool operations may remain open.
  • Outdoor hot tubs may remain open only for use by one household group at a time or in cases where six feet of distancing can be maintained.
  • Indoor pools may open when physical distancing can be maintained for non-household groups.
  • Indoor saunas, hot tubs and steam rooms remain closed.
  • Associations must follow all applicable “Additional Considerations for Swimming Pools / Aquatic Venues” found in the State’s Industry Guidance for Gyms and Fitness Facilities.
Minimal (yellow):
  • Outdoor pool operations may remain open.
  • Outdoor hot tubs may remain open only for use by one household group at a time or in cases where six feet of distancing can be maintained.
  • Indoor pools, saunas, hot tubs and steam rooms may open when physical distancing can be maintained for non-household groups.
  • Associations must follow all applicable “Additional Considerations for Swimming Pools / Aquatic Venues” found in the State’s Industry Guidance for Gyms and Fitness Facilities.

GYMS AND FITNESS CENTERS

Widespread (purple):
Substantial (red):
Moderate (orange):
Minimal (yellow):
In all Tiers: Personal training between a total of one person and one trainer at a time per premises is allowed. Associations must follow the applicable provisions of the State’s Industry Guidance for Limited Services when providing one-on-one personal fitness training.

LIBRARIES

 Widespread (purple):
Substantial (red):
Moderate (orange) & Minimal (yellow):

MOVIE THEATERS

 Widespread (purple):
Substantial (red):
Moderate (orange):
Minimal (yellow):

OUTDOOR RECREATIONAL FACILITIES

In all Tiers:

RESTAURANTS

Widespread (purple):
Substantial (red):
  • Restaurants may open indoor with modifications. Indoor capacity must be limited to 25% or 100 people, whichever is less.
  • Associations must follow all applicable provisions of the State’s Industry Guidance for Dine-In Restaurants.
  • Wineries, breweries, and distilleries (where meals are not served) outdoor only with reservations, seating, 90-minute time limit and limited hours of operation.
  • Bars where no meals are provided must remain closed.
Moderate (orange):
Minimal (yellow):

HAIR SALONS

In all Tiers:

PRIVATE EVENTS & MEETINGS

 Widespread (purple):

Substantial (red):

  • Outdoor: Maximum of 50 people, or 200 if all attendees are tested or show proof of full vaccination.
  • Indoor: Permitted if all attendees are tested or show proof of full vaccination and no more than 100 people.
  • Associations must follow all applicable provisions of the State’s Industry Guidance for Private Venues and Events.

Moderate (orange):

  • Outdoor: Maximum of 100 people, or 300 if all attendees are tested or show proof of full vaccination.
  • Indoor: Permitted if all attendees are tested or show proof of full vaccination and no more than 150 people.
  • Associations must follow applicable provisions of the State’s Industry Guidance for Private Venues and Events.

Minimal (yellow):

  • Outdoor: Maximum of 200 people, or 400 if all attendees are tested or show proof of full vaccination.
  • Indoor: Permitted if all attendees are tested or show proof of full vaccination and no more than 200 people.
  • Associations must follow applicable provisions of the State’s Industry Guidance for Private Venues and Events.

 

PRIVATE GATHERINGS

 Widespread (purple):

Substantial (red):

  • Outdoor: Maximum of 25 people
  • Indoor: Strongly discouraged, but allowed with modifications (no food/drink except when following the standards in guidance).  Attendance limited to 25% capacity and up to 3 households or 10 people.
  • Associations must follow all applicable provisions of the State’s Guidance for Gatherings.

Moderate (orange):

  • Outdoor: Maximum of 50 people.
  • Indoor: Strongly discouraged, but allowed with modifications (no food/drink except when following the standards in guidance).  Attendance limited to 25% capacity or 25 people, whichever is fewer.
  • Associations must follow applicable provisions of the State’s Guidance for Gatherings.

Minimal (yellow):

  • Outdoor: Maximum of 100 people.
  • Indoor: Strongly discouraged, but allowed with modifications (no food/drink except when following the standards in guidance).  Attendance limited to 50% capacity or 50 people, whichever is fewer.
  • Associations must follow applicable provisions of the State’s Guidance for Gatherings.

Association Functions… Private Event or Private Gathering? That is the Question!

Requirements for Private Events
Testing and Vaccine Verification
Attendance Limits for Private Events and Private Gatherings

 

On April 15, 2020, the California Department of Public Health issued an updated plan for Californians to gather outside their households. Such functions fall into one of two categories: 1) Private Events or 2) Private Gatherings.

This is exciting news but requires associations to familiarize themselves with whether a specific function constitutes a private event or a private gathering, as each requires compliance with a different set of rules and requirements.

      • Private Events: A private event is defined as meetings, receptions and conferences. Private events must have a defined guest list and the ability to assign seating for guests. Testing and vaccine verification requirements are required for all indoor private events and may be used to increase attendance limits for outdoor private events.
      • Private Gathering: A private gathering is defined as social situation that brings together people from different households at the same time in a single space or place. According to the State, private gatherings are social, informal gatherings with no defined guest list. There are no testing or vaccine verification requirements for private gatherings.

Based on the definitions and characteristics provided by the State for private events and private gatherings, it appears reasonable to construe association organized or sanctioned functions as private events. This means, for most association functions, your association will be required to comply with the guidance and requirements for Private Events. This includes any board meeting, association committee or club meeting, member meeting, town hall meeting, or events organized or sponsored by the association. A private gathering would encompass situations in which residents or other members of the community choose to informally gathering in areas around the community.

Requirements for Private Events

Private events must follow the Private Venues and Events guidance which requires:

    • A defined guest list
    • Assigned seating
    • Use of face coverings unless actively eating and/or drinking
    • Physical distancing of at least 6 feet between people from different households unless people are fully vaccinated
    • Testing and vaccination verification for indoor private events and outdoor private events with increased attendance
    • Cleaning and disinfecting protocols including the disinfecting of any microphones or equipment used
    • No intermingling of multiple private events
    • COVID-19 testing program for weekly optional testing for employees working at a private event
    • Live entertainment is permitted at private events but must follow all relevant guidance for Outdoor Seated Live Events and Performances Guidance or Indoor Seated Live Events and Performances.

In order to accomplish these requirements attendees will need to be “checked-in” at any private event. For many association meetings the defined guest list is going to be the membership list, or the committee/club roster. In addition, associations might consider implementing a reservation system for meetings to ensure attendance limits are maintained.  At any private event the association must also have assigned seating. One way this may be imposed is by numbering seats prior to the meeting or event and assigning each attendee a number when they sign in corresponding to their assigned seat. For any indoor private event, and those outdoor private events using increased capacities, the association must verify each attendee is fully vaccinated or has tested negative for COVID-19. Acceptable forms of proof of vaccine and negative tests is discussed further below.

Associations must also follow the California Department of Public Health’s interim Guidance for Ventilation, Filtration, and Air Quality for all indoor operations.

Testing and Vaccine Verification

A person is considered fully vaccinated at least 2 weeks after they have received the second dose in a 2-dose vaccine (i.e., Pfizer-BioNTech or Moderna), or at least 2 weeks after they have received a single-dose vaccine (i.e., Johnson and Johnson [J&J]/Janssen). Acceptable proof of full vaccination is a vaccination card (which includes the name of the person vaccinated, type of vaccine provided and date last dose administered) OR a photo of a vaccination card as a separate document OR a photo of the attendee’s vaccine card stored on a phone or electronic device OR documentation of vaccination from a healthcare provider.

      • A person may also show proof of a negative COVID-19 test. Testing must be conducted with 72 hours before the start of an event, if the person received a PCR test. Antigen test (or rapid tests) are also acceptable if conducted within 24 hours of the start of an event. Results must be available prior to entry into the event. Acceptable proof of a negative COVID-19 test may be a printed document (from the test provider or laboratory) OR an email or text message displayed on a phone or electronic device from the test provider or laboratory. The information provided should include name of person tested, type of test performed, and date of negative test result (again, for PCR, date of negative result must be within prior 72 hours; for antigen, date of negative result must be within prior 24 hours).

The testing option allows persons who are not able to receive a vaccine or who choose not to do so to attend events by providing valid proof of a timely negative COVID-19 test, as set forth above.

Attendance Limits for Private Events and Private Gatherings

For the foreseeable future, attendance limits for private events and private gatherings will continue to be governed by a county’s assigned tier in the California COVID-19 Blueprint for A Safer-Economy.

PRIVATE EVENTS:
Widespread (purple):
  • Outdoor: Maximum of 25 people, but if all attendees are tested or show proof of full vaccination, attendance goes up to 100 people.
  • Indoor: Not permitted.
Substantial (red):
  • Outdoor: Maximum of 50 people, or 200 if all attendees are tested or show proof of full vaccination.
  • Indoor: Permitted if all attendees are tested or show proof of full vaccination and no more than 100 people.
Moderate (orange):
  • Outdoor: Maximum of 100 people, or 300 if all attendees are tested or show proof of full vaccination.
  • Indoor: Permitted if all attendees are tested or show proof of full vaccination and no more than 150 people.
Minimal (yellow):
  • Outdoor: Maximum of 200 people, or 400 if all attendees are tested or show proof of full vaccination.
  • Indoor: Permitted if all attendees are tested or show proof of full vaccination and no more than 200 people.
PRIVATE GATHERINGS:
Widespread (purple):
  • Outdoor: Maximum of 3 households.
  • Indoor: Not permitted.
Substantial (red):
  • Outdoor: Maximum 25 people.
  • Indoor: Strongly discouraged, but allowed with modifications (no food/drink except when following the standards in guidance).  Attendance limited to 25% capacity and up to 3 households or 10 people.
Moderate (orange):
  • Outdoor: Maximum 50 people.
  • Indoor: Strongly discouraged, but allowed with modifications (no food/drink except when following the standards in guidance).  Attendance limited to 25% capacity or 25 people, whichever is fewer.
Minimal (yellow):
  • Outdoor: Maximum 100 people.
  • Indoor: Strongly discouraged, but allowed with modifications (no food/drink except when following the standards in guidance).  Attendance limited to 50% capacity or 50 people, whichever is fewer.

Epsten, APC Coronavirus Update – April 6, 2021

San Diego, Riverside, San Bernardino and Imperial Counties
Move to Less Restrictive Orange Tier

As of April 6, 2021, the State has assigned these tiers to the following counties:

  • San Diego County: Tier 3 – Moderate (orange) – Effective April 7th
  • Riverside County: Tier 3 – Moderate (orange) – Effective April 7th
  • San Bernardino County: Tier 3 – Moderate (orange) – Effective April 7th
  • Los Angeles County: Tier 3 – Moderate (orange) – No Change
  • Orange County: Tier 3 – Moderate (orange) – No Change
  • Imperial County: Tier 3 – Moderate (orange) – Effective April 7th
  • Kern County: Tier 2, Substantial (red) – No Change
As most of us recall, every county in California is assigned to a tier based on its positivity rate, adjusted case rate, and health equity metric. Counties must remain in a tier for at least 3 weeks before moving to a less restrictive tier. Counties must meet the next tier’s criteria for two consecutive weeks to move to a less restrictive tier. If a county’s metrics worsen for two consecutive weeks, it will be assigned a more restrictive tier. Read more about tier assignment rules.
In accordance with California’s Blueprint for a Safer Economy, tier status goes into effect the Wednesday following each weekly tier assignment announcement on Tuesdays, unless otherwise directed by the State.

 

As a reminder, the tiers are:

  • Tier 1 – Widespread (purple)
  • Tier 2 – Substantial (red)
  • Tier 3 – Moderate (orange)
  • Tier 4 – Minimal (yellow)
Permitted services and activities may resume with required modifications according to your county’s assigned tier and subject to any additional restrictions required by local jurisdictions.
See below and refer to the State’s website for more information on the status of activities open in each county.
For information regarding the tier assigned to your county visit the California COVID-19 Blueprint for A Safer-Economy webpage.
***

The State guidelines on the various sectors are as follows:

VENTILATION FOR INDOOR OPERATIONS

All businesses permitted to operate indoors based the State’s tiers must follow the California Department of Public Health’s interim Guidance for Ventilation, Filtration, and Air Quality. 

POOLS

Widespread (purple):
  • Outdoor pool operations may remain open.
  • Outdoor hot tubs may remain open only for use by one household group at a time or in cases where six feet of distancing can be maintained.
  • Indoor pools, saunas, hot tubs and steam rooms remain closed.
  • Associations must follow all applicable “Additional Considerations for Swimming Pools / Aquatic Venues” found in the State’s Industry Guidance for Gyms and Fitness Facilities.
Substantial (red):
  • Outdoor pool operations may remain open.
  • Outdoor hot tubs may open only for use by one household group at a time or in cases where six feet of distancing can be maintained.
  • Indoor pools, saunas, hot tubs and steam rooms remain closed.
  • Associations must follow all applicable “Additional Considerations for Swimming Pools / Aquatic Venues” found in the State’s Industry Guidance for Gyms and Fitness Facilities.
Moderate (orange):
  • Outdoor pool operations may remain open.
  • Outdoor hot tubs may remain open only for use by one household group at a time or in cases where six feet of distancing can be maintained.
  • Indoor pools may open when physical distancing can be maintained for non-household groups.
  • Indoor saunas, hot tubs and steam rooms remain closed.
  • Associations must follow all applicable “Additional Considerations for Swimming Pools / Aquatic Venues” found in the State’s Industry Guidance for Gyms and Fitness Facilities.
Minimal (yellow):
  • Outdoor pool operations may remain open.
  • Outdoor hot tubs may remain open only for use by one household group at a time or in cases where six feet of distancing can be maintained.
  • Indoor pools, saunas, hot tubs and steam rooms may open when physical distancing can be maintained for non-household groups.
  • Associations must follow all applicable “Additional Considerations for Swimming Pools / Aquatic Venues” found in the State’s Industry Guidance for Gyms and Fitness Facilities.

GYMS AND FITNESS CENTERS

Widespread (purple):
Substantial (red):
Moderate (orange):
Minimal (yellow):
In all Tiers: Personal training between a total of one person and one trainer at a time per premises is allowed. Associations must follow the applicable provisions of the State’s Industry Guidance for Limited Services when providing one-on-one personal fitness training.

LIBRARIES

 Widespread (purple):
Substantial (red):
Moderate (orange) & Minimal (yellow):

MOVIE THEATERS

 Widespread (purple):
Substantial (red):
Moderate (orange):
Minimal (yellow):

OUTDOOR RECREATIONAL FACILITIES

In all Tiers:

RESTAURANTS

Widespread (purple):
Substantial (red):
  • Restaurants may open indoor with modifications. Indoor capacity must be limited to 25% or 100 people, whichever is less.
  • Associations must follow all applicable provisions of the State’s Industry Guidance for Dine-In Restaurants.
  • Wineries, breweries, and distilleries (where meals are not served) outdoor only with reservations, seating, 90-minute time limit and limited hours of operation.
  • Bars where no meals are provided must remain closed.
Moderate (orange):
Minimal (yellow):

HAIR SALONS

In all Tiers:

OUTDOOR LIVE SEATED EVENTS & PERFORMANCES

All outdoor live events and performances must comply with the State’s Outdoor Seated Live Events and Performances Guidance. A permissible outdoor venue for live audience performances must either be a permanent and fixed facility, focused around a stage round, field court, or other central area designed primarily for viewing entertainment or athletics by an audience OR a defined and demarcated outdoor area.
If your association has a permissible outdoor venue, please consult with your association’s legal counsel regarding the various restrictions and capacity limitations based on your county’s tier assignment.

Beginning April 15th – More Indoor & Outdoor Gatherings and Private Events Will be Allowed with Restrictions

(MORE INFORMATION TO COME)

On April 2, the California Department of Public Health announced updates that will loosen COVID-19 restrictions on both outdoor and indoor gatherings and private events and meetings such as receptions and conferences. The updates will take effect beginning April 15 and will depend on each county’s respective tier assignment.

The State has not yet released detailed guidance on what modifications are required in order to hold permissible gatherings or private events. It is anticipated that such guidance will be released prior to April 15. Associations will be required to comply with all applicable guidance issued by the State and any local authorities before permitting or conducting any gatherings and private events in accordance with its county’s tier level.

Until such guidance is released, associations should review the State’s Guidance for Ventilation, Filtration and Air Quality in Indoor Environments to begin preparing for reopening facilities. All businesses and activities permitted to operate indoors must follow this guidance. Associations should also consider consulting with its other experts (janitorial, engineering, plumbing) in anticipation of the possibility of reopening facilities that have been shut down and inactive for prolonged periods.

GATHERINGS
social, informal gatherings with no defined guest list
or testing or vaccination verification requirements

Widespread (purple):
  • Outdoor: Maximum of 3 households.
  • Indoor: Not permitted.
Substantial (red):
  • Outdoor: Maximum 25 people.
  • Indoor: Strongly discouraged, but allowed with modifications (no food/drink except when following the standards in guidance).
  • Capacity limited to 25% and up to 3 households or 10 people.
Moderate (orange):
  • Outdoor: Maximum 50 people.
  • Indoor: Strongly discouraged, but allowed with modifications (no food/drink except when following the standards in guidance).
  • Capacity limited to 25% or 25 people, whichever is fewer.
Minimal (yellow):
  • Outdoor: Maximum 100 people.
  • Indoor: Strongly discouraged, but allowed with modifications (no food/drink except when following the standards in guidance).
  • Capacity limited to 50% or 50 people, whichever is fewer.

PRIVATE EVENTS
meetings/receptions/conferences

 

Mandatory in all tiers: defined guest list, seating chart/assigned seating, testing and vaccination verification can increase capacity limits, no intermingling of multiple private events.

Widespread (purple):

  • Outdoor: Maximum of 25 people, but if all guests are tested or show proof of full vaccination, capacity goes up to 100 people.
  • Indoor: Not permitted.

Substantial (red):

  • Outdoor: Maximum of 50 people, or 200 if all guests are tested or show proof of full vaccination.
  • Indoor: Permitted if all guests are tested or show proof of full vaccination and no more than 100 people.

Moderate (orange):

  • Outdoor: Maximum of 100 people, or 300 if all guests are tested or show proof of full vaccination.
  • Indoor: Permitted if all guests are tested or show proof of full vaccination and no more than 150 people.

Minimal (yellow):

  • Outdoor: Maximum of 200 people, or 400 if all guests are tested or show proof of full vaccination.
  • Indoor: Permitted if all guests are tested or show proof of full vaccination and no more than 200 people.

Epsten, APC Coronavirus Update – March 31, 2021

Los Angeles, Orange & Kern Counties

Move to Less Restrictive Tiers

As of March 30, 2021, the State has assigned these tiers to the following counties:

  • San Diego County: Tier 2, Substantial (red) – No Change
  • Riverside County: Tier 2, Substantial (red) – No Change
  • San Bernardino County: Tier 2, Substantial (red) – No Change
  • Los Angeles County: Tier 3 – Moderate (orange) – Effective March 31
  • Orange County: Tier 3 – Moderate (orange) – Effective March 31
  • Imperial County: Tier 2, Substantial (red) – No Change
  • Kern County: Tier 2, Substantial (red) – Effective March 31
As most of us recall, every county in California is assigned to a tier based on its positivity rate, adjusted case rate, and health equity metric. Counties must remain in a tier for at least 3 weeks before moving to a less restrictive tier. Counties must meet the next tier’s criteria for two consecutive weeks to move to a less restrictive tier. If a county’s metrics worsen for two consecutive weeks, it will be assigned a more restrictive tier. Read more about tier assignment rules.
In accordance with California’s Blueprint for a Safer Economy, tier status goes into effect the Wednesday following each weekly tier assignment announcement on Tuesdays, unless otherwise directed by the State.

 

As a reminder, the tiers are:

  • Tier 1 – Widespread (purple)
  • Tier 2 – Substantial (red)
  • Tier 3 – Moderate (orange)
  • Tier 4 – Minimal (yellow)
Permitted services and activities may resume with required modifications according to your county’s assigned tier and subject to any additional restrictions required by local jurisdictions.
See below and refer to the State’s website for more information on the status of activities open in each county.
For information regarding the tier assigned to your county visit the California COVID-19 Blueprint for A Safer-Economy webpage.
***

The State guidelines on the various sectors are as follows:

VENTILATION FOR INDOOR OPERATIONS

All businesses permitted to operate indoors based the State’s tiers must follow the California Department of Public Health’s interim Guidance for Ventilation, Filtration, and Air Quality. 

POOLS

Widespread (purple):
  • Outdoor pool operations may remain open.
  • Outdoor hot tubs may remain open only for use by one household group at a time or in cases where six feet of distancing can be maintained.
  • Indoor pools, saunas, hot tubs and steam rooms remain closed.
  • Associations must follow all applicable “Additional Considerations for Swimming Pools / Aquatic Venues” found in the State’s Industry Guidance for Gyms and Fitness Facilities.
Substantial (red):
  • Outdoor pool operations may remain open.
  • Outdoor hot tubs may open only for use by one household group at a time or in cases where six feet of distancing can be maintained.
  • Indoor pools, saunas, hot tubs and steam rooms remain closed.
  • Associations must follow all applicable “Additional Considerations for Swimming Pools / Aquatic Venues” found in the State’s Industry Guidance for Gyms and Fitness Facilities.
Moderate (orange):
  • Outdoor pool operations may remain open.
  • Outdoor hot tubs may remain open only for use by one household group at a time or in cases where six feet of distancing can be maintained.
  • Indoor pools may open when physical distancing can be maintained for non-household groups.
  • Indoor saunas, hot tubs and steam rooms remain closed.
  • Associations must follow all applicable “Additional Considerations for Swimming Pools / Aquatic Venues” found in the State’s Industry Guidance for Gyms and Fitness Facilities.
Minimal (yellow):
  • Outdoor pool operations may remain open.
  • Outdoor hot tubs may remain open only for use by one household group at a time or in cases where six feet of distancing can be maintained.
  • Indoor pools, saunas, hot tubs and steam rooms may open when physical distancing can be maintained for non-household groups.
  • Associations must follow all applicable “Additional Considerations for Swimming Pools / Aquatic Venues” found in the State’s Industry Guidance for Gyms and Fitness Facilities.

GYMS AND FITNESS CENTERS

Widespread (purple):
Substantial (red):
Moderate (orange):
Minimal (yellow):
In all Tiers: Personal training between a total of one person and one trainer at a time per premises is allowed. Associations must follow the applicable provisions of the State’s Industry Guidance for Limited Services when providing one-on-one personal fitness training.

LIBRARIES

 Widespread (purple):
Substantial (red):
Moderate (orange) & Minimal (yellow):

MOVIE THEATERS

 Widespread (purple):
Substantial (red):
Moderate (orange):
Minimal (yellow):

OUTDOOR RECREATIONAL FACILITIES

In all Tiers:

RESTAURANTS

Widespread (purple):
Substantial (red):
  • Restaurants may open indoor with modifications. Indoor capacity must be limited to 25% or 100 people, whichever is less.
  • Associations must follow all applicable provisions of the State’s Industry Guidance for Dine-In Restaurants.
  • Wineries, breweries, and distilleries (where meals are not served) outdoor only with reservations, seating, 90-minute time limit and limited hours of operation.
  • Bars where no meals are provided must remain closed.
Moderate (orange):
Minimal (yellow):

HAIR SALONS

In all Tiers:

PRIVATE GATHERINGS

Widespread (purple): Outdoors only
Substantial (red)Moderate (orange) & Minimal (yellow): Indoor permitted, but strongly discouraged.
In all Tiers:
All private gatherings must comply with the State’s Private Gatherings Guidance.
Such private gatherings must meet the following conditions:
  • Attendees must be from no more than 3 separate households, including hosts and guests.
  • Host should collect names of all attendees and contact information.
  • Duration should be 2 hours or less.
  • Wear a mask, practice physical distancing, and wash your hands frequently.
  • Do not attend if you have COVID-19 symptoms.
  • Do not attend if you are at high risk for serious illness from COVID-19 (seniors, those with certain medical conditions).

OUTDOOR LIVE SEATED EVENTS & PERFORMANCES

All outdoor live events and performances must comply with the State’s Outdoor Seated Live Events and Performances Guidance. A permissible outdoor venue for live audience performances must either be a permanent and fixed facility, focused around a stage round, field court, or other central area designed primarily for viewing entertainment or athletics by an audience OR a defined and demarcated outdoor area.
If your association has a permissible outdoor venue, please consult with your association’s legal counsel regarding the various restrictions and capacity limitations based on your county’s tier assignment.

Helpful Suggestions to Avoid Construction Contracting Mistakes

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* Originally Published in the CAI-CV April, 2021 Edition of Quorum Magazine

By Jon H. Epsten, Esq. CCAL
Founding Member and Co-Managing Shareholder at Epsten, APC

I have been fortunate to represent common interest developments for close to thirty-eight years.  At the onset of my career I became involved in assisting associations with contracting for repairs, including major renovations and many post litigation reconstruction projects in the millions of dollars.  The basic rules of contracting for this type of work have not changed much over the years. What has changed is the complexity of the work and the insurance issues.

Our cottage industry has expanded over the years from cookie cutter “stick-built” homes constructed over hundreds of acres to much smaller foot prints and to more vertical construction with complex and ever-changing construction methodologies integrated with construction materials that oftentimes equally complex to install and repair.

To assist community managers and boards of directors through the contracting process I have put together some issues for the Board to consider which address problems I have encountered over the years. These issues are not exhaustive but touch upon the obvious issues which are often over-looked and can result in even a simple project failing.  Not every project will go well no matter how much work is put into the selection of the contractor. The goal is to minimize risk and when things aren’t going well have a good exit strategy or resolution process in the construction contract.

Here is an analogy. I grew up working on boats in San Diego. I learned that the process of painting a boat is a monumental task. But, it’s not spraying the paint on the hull that is difficult, rather it is preparing the hull for the paint that takes the most work.  Planning and preparation for your construction project is the difficult part of the project not necessarily the actual work being performed.

One of the most common mistakes is not defining the scope of work in enough detail. The absolute key to a good contract is a solid definition of the scope of work. By way of example, it is prudent to have an arborist define the scope of tree trimming while it may be prudent to have an architect define the scope of a roof repair or replacement.  Attorneys do not define scopes of work. The scope should be defined by the professional in the discipline. For you do-it-yourselfers there are resources on the web that contain plans and specifications for work (e.g. asphalt paving, painting, landscaping and irrigation). No matter what methodology you undertake to arrive at the scope of work you must always have a clearly defined scope of work in the contract.

I recently had a contractor argue successfully that their scope did not include painting the siding after the siding installation. He understood when bidding that the association was painting the siding. He referred back to the scope of work and while not specifically excluded, painting was not specified in the contract. Spend time understanding the scope, read and re-read the scope and incorporate all the scope documents (plans and specifications) into the contract and consider incorporating illustrative diagrams or photographs into the scope that show the site conditions. The scope needs to clearly define what is being repaired, the locations, the means and methods of repair and the material specifications, including warranties.

A very basic and old school approach to contracting is to interview contractors prior to selecting a contractor to perform work. This basic rule can bring out a lot of issues and calm nervous board members concerns.  That said, interview with a purpose. Just recently, I suggested to a board they interview a plumbing contractor.  I was not asked to attend. I called the manager the next day and asked how the interview went and she replied, the board only had two questions and they weren’t even sure what to ask. Take interviewing the contractor seriously.

  • A list of questions should be developed so you are always comparing apples to apples when interviewing a contractor for the job.
  • Check out their references.
  • Speak to other association boards of directors of similar sized communities the contractor has performed similar work for in the past.

I have found that a board interviewing contractors and taking the time to speak to other communities who used the same contractor(s) yields good information to make informed decisions. Do not just speak with the associations on the contractor’s reference list. They have typically been chosen because they will give the contractor a glowing review. Use your industry contacts to see if there are other projects not on the contractor’s list and get their input too. For example, when a problem arose on the project did the contractor deny responsibility or did it acknowledge the issue and work with the association to find a solution.

Many of us have to visually observe things to understand them. For me, it is no different with construction. By way of example, I need to see the paint colors, how the flashing will lay up against the fascia, and how the new windows compare to the windows that remain in place. I encourage my clients when possible, to have the contractor perform prototype repairs or illustrative mock-ups. Mock-ups and prototype repairs allow the board to better understand the work, adjust the work prior to formally committing to it and use the prototype or mock-up to explain the work to the owners or other contractors who may have to integrate their work with others.

Prior to starting work it is important to communicate with the owners and residents about what they can expect. Ideally, the contractor will assign a liaison to assist management and the board with communications with the residents and owners.  Good communication leads to a successful project. Regular communications between the contractor and the board is also important. Consider inviting the contractor to your regular board meetings to answer owners’ questions and address the board on the progress of the work.

Your Community Association Manager is your consultant, but do not assume the manager has the time and/or expertise to handle a construction project. These projects can be time consuming and can take away from day to day association issues that need to be addressed. Always discuss with your manager their role in any construction project; set expectations early. It is possible you may need to hire a third party to administer the work. If the management of the work is being delegated to a committee make sure the members are knowledgeable in construction or willing to learn about the work to be performed – don’t take the first volunteer who raises their hand.

I am often asked, does an attorney need to review the construction contract? Answering, yes, appears self-serving, but in fact oftentimes these contracts are fraught with poison pills such as antiquated insurance provisions, indemnity language and limitation of liability provisions. Those provisions need to be reviewed by counsel and understood by the board. Another key consultant is your association’s insurance agent. Make sure your agent reviews the insurance provisions in the construction contract.

It’s difficult for me to conclude this article when I have so much more to say! Let me leave you with some closing thoughts.

  • Take the time you need to get the contract that gets the work done properly.
  • Don’t overly complicate or delay the process.
  • Use professionals, and board members remember, what you may do if you were the contracting party is not necessarily what the association should do (e.g. offering cash incentives to a contractor).
  • And lastly, always keep in mind that price variances in bids are a signal that bidders may not be bidding the same scope.

 

Agenda Setting: Who, When, and How?

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By Jillian M. Wright, Esq. & Dea C. Franck, Esq.

Setting the agenda for a board meeting is an important parliamentary protocol as the agenda establishes what will be discussed at the upcoming meeting. Though an agenda is required by the California Civil Code, California law does not specify how to set the agenda and association governing documents are often silent on the issue.

California’s Open Meeting Act (“Act”) (Civ. Code §4900 et seq.) was established with the intent of increasing transparency of the conduct of board business in common interest developments in an effort to keep owners involved and aware of board business. The Act prohibits boards from discussing or acting on an item of board business outside of a board meeting (Civ. Code §4910(a)). Civil Code section 4930 also prohibits boards from discussing any board business which was not previously placed on the agenda prior to the meeting with some exceptions outlined in Civil Code section 4930 (b) through (d) and discussed below.  Thus, agendas are more than just a loose guide for meetings; they restrict what boards can discuss and act on. If an item of business is not on the agenda, then generally a board cannot act on that item unless certain criteria are met.

Agenda Setting Protocols – Determining The Who, When and How

Who May Set and Place Items on the Agenda?

Your association’s governing documents may expressly provide who may place items on board meeting agendas and how. However, if your association’s governing documents are silent on these issues, your board should consider adopting an agenda setting protocol. Such a protocol should provide which director sets the agenda (generally we see board presidents handling this task), who may place an item of business on the agenda, how that is accomplished, and any requisite deadlines.

Regarding who may place an item of business on the agenda, California law does not provide any guidance on this issue. However, Corporations Code section 7211(a)(1) states that meetings of the board may be called by the board president, vice president, secretary, or any two directors. If the Corporations Code gives these individuals the power to call a board meeting, then by analogy the board president, vice president, secretary, or any two directors should have the power to place an item on the agenda for that meeting. Therefore, we generally recommend that agenda setting protocols provide that the board president, vice president, secretary or two or more directors may place items of board business on the board meeting agenda. Non-board member owners should not be given the power to place matters on the agenda.

Agenda item requests may be emailed to the association’s community manager or the designated board member responsible for setting the agenda. Whatever method is used to set the agenda, be careful not to violate the Open Meeting Act by having a quorum of the board discussing or debating what to place on the agenda. Simply emailing a request for an item to be added to the agenda does not violate the Open Meeting Act.

When Must the Agenda be Finalized and Posted?

Agendas must be included with the notice of the meeting. Associations must give general notice of the meeting at least four days before a regular (open) session board meeting and at least two days before an executive session board meeting. (Civ. Code §4920). In order to meet these deadlines, the board adopted protocol should provide that requests for items to be added to the proposed agenda be sent to the person designated to prepare the agenda at least 24-48 hours prior to when the notice and agenda will be posted.

How Can Agenda Items be Added to an Agenda at a Meeting?

There are some instances where a board can add an agenda item at a meeting:

  1. If the board determines that an emergency situation exists (i.e., there are circumstances that could not have been reasonably foreseen by the board, which require immediate attention and possible action by the board which make it impracticable to provide requisite notice), then the board may add that emergency issue to that meeting’s agenda by a vote of the majority of the board. (Civ. Code §4930(d)(1).)
  2. If the board determines that there is a need to take immediate action on issue and that need for action came to the attention of the board after the agenda was posted, the board may, by a vote of two-thirds of the directors present at the meeting (or if less than two-thirds of the total membership of the board is present at the meeting, then my unanimous vote of the directors present), add that item to that meeting’s agenda. (Civ. Code §4930(d)(2).)
  3. If the item appeared on the agenda for a prior meeting that occurred not more than 30 days before the date of the current meeting and at that prior meeting action on that item was continued to the current meeting. (Civ. Code §4930(d)(3).)

If the proposed agenda item does not meet one of the above, then that item cannot be added to the agenda at the meeting. However, the board can direct the community manager or director designated to set the next meeting agenda to add that item to the agenda for that future meeting.

If the proposed agenda items meet a Civil Code section 4930 exception, then the board should first vote to add the item to the agenda. Once the board votes to add the item to the agenda, then further board discussion and action may be taken on the agenda item.

In sum, if your governing documents do not address the who and how of setting board meeting agendas, your board should consider adopting a protocol in order to clearly provide a procedure as to how board meeting agendas are handled.

Be forward-thinking and consider preparing and adopting such a protocol to prevent future unnecessary strife amongst board members. Please contact our office if your association needs assistance in preparing an agenda setting protocol.