Epsten, APC

We are writing to update you regarding community association pool closures pursuant to State and/or County Orders. The State order explicitly restricts the opening of public pools. While until recently, San Diego County’s health orders had not specifically addressed the closure of pools. However, on May 9, 2020, San Diego County issued an Order specifically restricting “community pools” from opening.

On May 14, 2020, a representative of the San Diego County Public Health Department confirmed that the Order issued on May 9th applies to community association pools. Therefore, at this time, in accordance with the San Diego County Public Health Order, community association pools are to be closed until further notice or guidance from the State or County.

While your association’s pool is closed, we strongly recommend the board begin to consider changes that will need to be made when the State and County eventually allow community pools to reopen.

Your association should contact its pool vendor to discuss what disinfecting and sanitizing options are available to effectively prevent the transmission of any virus. We also recommend boards review the County’s Safe Reopening Plan (“SRP”) found here. Not all portions of the SRP may be applicable to your association, but it would be prudent to complete, implement, and post this form at your community pools when permitted to reopen.

The CDC recently issued guidelines regarding cleaning and disinfecting community pools, among other information. These guidelines can be helpful in developing your association’s new operation and sanitation protocols when reopening is permitted. The link can be found here.

Please be informed that State and local responses to COVID-19 are changing quickly, and our advice is based on facts and guidance available as of today. Future developments may change or render this advice outdated.

Keywords: COVID-19, Coronavirus

Effective May 9, 2020, Riverside County’s amended orders related to short term rentals, golf course use, and the required use of face coverings and the practice of social distancing are rescinded. The rescission order can be found here and the new release regarding the rescission order can be found here.

According to the County’s news release issued May 8th, the purpose of rescinding most of the local public health orders is to align Riverside County with the state’s stay at home order. The County still strongly recommends face coverings and social distancing “whenever practical and within reason.”

Currently the state is in Stage 2 of its reopening process where certain businesses are allowed to reopen under certain restrictions and guidance. The state’s roadmap for reopening can be found here. Stage 2 of the state’s reopening also allows the public to engage in certain outdoor recreational activities as long as participants maintain social distancing and gather only with members of the same household. For a list of allowed outdoor recreational activities please go to “Outdoor Recreation” section on the state’s FAQ website.

Riverside County’s Board of Supervisors is also planning to adopt a best practices framework to guide the reopening of Riverside County businesses. The plan is expected to be considered by the Board on Tuesday, May 12.

While Riverside County has lifted most of its public health orders, remember that (1) the individual cities in Riverside County may have still have restrictions in place related to COVID-19 and (2) the state’s stay at home order is still in place.

Be sure to review your city’s website for any such restrictions and refer to the California COVID-19 website for additional information regarding the state’s restrictions.

Keywords: COVID-19, Coronavirus

STAY AT HOME ORDER AND FACE COVERING REQUIREMENTS

An amended order issued by Riverside County on April 29, 2020, officially extended its stay at home order through June 19, 2020, pending any further orders from the County’s Public Health Officer. The County also purposefully removed its no gathering language from this amended order resulting in Riverside County now falling under California’s general no gathering order, which can be found here.

The State order requires California residents to stay home unless they are engaged in an essential business or undertaking an essential activity. The State’s no gathering order also does not have an expiration date. According to the news release issued by Riverside County on April 29, 2020, which can be found here, “[a]s soon as the governor releases the stay at home order, Riverside County will be ready to move into the governor’s second phase of reopening businesses.”

This amended order also clarifies the face covering requirement for the general public. While everyone, including essential workers, are still required to wear face coverings in public settings (such as waiting in line to go inside a store, picking up food at a restaurant, going into facilities that are allowed to stay open, or working an essential job where the essential worker interacts with the public), face coverings do not need to be worn when:

• At home.
• In the car alone or with members of the same household.
• Outdoors, walking, hiking, bicycling, or running, however, social distancing while outside or engaging in outdoor activities must be maintained at all times and face coverings must be readily available.
• People with health conditions whose medical doctors have advised against wearing a face covering and can provide documentation evidencing that advice.
• Children under the age of 2 due to suffocation risks,

Businesses (which would include community associations) must:

• Require their employees, contractors, owners and volunteers to wear a facing covering at the workplace.
  • For example, management employees and association volunteers working in an association’s onsite management office, and when performing work off-site.
• Inform customers, (i.e., residents), about the need to wear a face covering, including posting signs and advising customers inside the business.
  • For example, if your association has a clubhouse with a restaurant operating on an order pick-up basis, then your community should post signs outside the clubhouse stating that face coverings must be worn by residents who enter the clubhouse to pick-up their order.
• Take reasonable steps to keep people from entering their business without a face covering.
  • For example, asking residents who have entered an open association facility to leave and return when they are wearing a face covering unless they have documentation from their medical doctor stating they should not wear a mask because of a health condition.
• Refuse service to anyone not wearing a face covering, unless they have documentation from their medical doctor stating they should not wear a mask because of a health condition

As a result of this amended order, below are some of the most common questions that have been posed to us:

Does this mean my community can fully reopen its indoor recreational facilities?

No. According to the State’s FAQ, gyms and fitness studios must stay closed.

May my community reopen its clubhouse?

The County and State have not provided specific guidance on this issue. However, in our opinion, we believe that clubhouses should remain closed because the stay at home orders are still in place. As such, people should not leave their homes unless they are engaged in an essential business or an essential activity.

Based on the States FAQs and the County’s amended order, the only essential recreational activities allowed are outdoor recreational activities. Therefore, we believe reopening association clubhouses for indoor recreational activities would violate the governments’ stay at home orders. It also may not be possible or financially feasible for your association to implement proper disinfection protocols for common surfaces inside the clubhouse at this time.

May my community reopen its outdoor bocce ball courts, shuffleboard, or horse shoe courts?

In our opinion, the answer is “yes” so long as the players are practicing social distancing and have a face covering readily accessible (unless the players are members of the same household as required under the County’s amended order).

Riverside County took its FAQs off its Department of Public Health website. The single-occupant pool restriction was in the County’s FAQ. Does that mean we can reopen our association pools?

We previously had clear guidelines from Riverside County about private shared pools. (The author will not comment on the logic of the actual guidelines themselves.) However, with the County removing its FAQs from its website, the County’s restrictions on association pools are now unclear since neither the State’s order nor the State’s FAQs address whether private shared pools must close.

For guidance purposes, many cities have ordered their community pools closed until further notice likely due to an inability to monitor social distancing requirements for pool goers and an inability (both physically and financially) to repeatedly disinfect and sanitize frequently touched surfaces (e.g., the coping around the pool, pool hand rails, and bathroom and shower components). Like public community pools, associations will encounter these same difficulties should they choose to reopen their pools. We are also aware of at least one pool vendor who is strongly recommending that the association it services keep their community pools closed due to the above concerns about disinfecting and sanitizing surfaces frequently enough to be effective in preventing the transmission of any virus.

Before deciding to fully reopen your association’s pool, your association should consider (1) whether its residents will be able to comply with current social distancing requirement when at the pool (in other words, will the residents violate the State’s no gathering order) and (2) whether implementing proper disinfection protocols at the pool and for common surfaces is achievable or financially feasible. If the answer is “no” to either of these questions, we recommend that your association keep its pools closed until further direction is given by the County and/or the State. Your association should also contact its pool vendor for its expert recommendation. Finally, your association should also confirm whether your city still has shared pool restrictions in place.

For associations who have opened, or intend to open their pool and implement the single occupancy restriction for pools that the County had previously included in its FAQs of April 24th (now rescinded), those associations may continue to implement that restriction, but should strongly consider how it will implement disinfection protocols.

May my association reopen its’ dog park?

In our opinion, the answer is “no.” Dogs in dog parks are generally off leash. Consequently, it would be difficult for the residents at the dog park to keep six feet away from other dogs as required by the State’s FAQs. Again, for guidance purposes only, most cities have ordered their dog parks closed.

Where can I find this amended County order?

The amended County order can be found here, via the https://rivcoph.org website.

GOLF COURSE AMENDED ORDER

On April 29, 2020, Riverside County also amended its golf course limited reopening order. Starting May 1st, Riverside County is no longer requiring golfers to wear face coverings when playing golf if: (1) golfers maintain social distancing at all times while playing, (i.e., staying more than six feet apart from other golfers), (2) the golfers playing together are limited to the same household members, or (3) when a golfer’s medical provider has advised the golfer against wearing a face covering. This amended order states that the County strongly recommends that people who are over the age of 65, have a chronic underlying medical condition, or have a compromised immune system continue to self-quarantine at home. This amended order can be found here.

As this rapidly changing situation evolves, we will continue to provide our clients with updated information. We are here to help if your association has any questions regarding these amended orders or any other legal issue. We would also like to take this opportunity to thank you for your business. We hope you and your family stay well.

Keywords: COVID-19, Coronavirus

ADDENDUM: In prior versions of the updated San Diego County Public Health Order, the County had contemplated making temperature screening mandatory for all essential business employees. However, in the latest Order released by San Diego County Public Health, essential business are not being required to implement such measures at this time. Golf courses will still be required to implement temperature screening measures as detailed further below. We will continue to make every effort possible to keep you updated with the latest information as it becomes available.

The San Diego County Public Health Order issued on April 30, 2020, extended the County’s stay home requirements “until further notice” to better align with the Governor’s California Executive Order. The County’s Order continues to prohibit all public or private “gatherings” and continues to require “social distancing” of at least six-feet between persons not of the same family or household. The Order defines a “gathering” as any convening that brings together more than one person, that are not members of a single family or household, in a room or indoor or outdoor space (e.g., board meetings should continue to be held via telephonic or video conference methods until further notice). A number of other modifications were made by this new Order as outlined further below.

FACE COVERING REQUIREMENTS

Beginning May 1, 2020, all persons in San Diego County, two years old or older must have a face covering with them when they leave their home and must wear a face covering whenever they are inside a business or within six feet of another person who is not a member of their family or household. Persons with a medical condition that prevents them from wearing a face covering will not be required to wear one.

An individual outside their home must have a face covering with them at all times but will not be required to wear the face covering when in a car by themselves, or when walking, jogging or exercising outdoors while maintaining at least six feet of distance from others.

This means individuals in San Diego County should have, and be ready to wear, a face covering whenever they leave their house.

ASSOCIATION POOLS

The County’s restrictions on shared association pools have been and continue to be relatively unclear. The County has not explicitly required shared association pools to close. However, private gatherings, (i.e., any convening that brings together more than one person) that are not members of a single family or household, in a room or indoor or outdoor space, are prohibited.

For guidance purposes, it is important to note that many cities have ordered their community pools closed until further notice, likely due to an inability to monitor social distancing requirements for pool goers and an inability (both physically and financially) to repeatedly disinfect and sanitize frequently touched surfaces (e.g., the coping around the pool, pool hand rails, and bathroom and shower components).

Like public community pools, associations will encounter these same difficulties should they choose to reopen their shared pools. We are also aware of at least one pool vendor who is strongly recommending that the association it services keep their community pools closed due to the above referenced concerns about disinfecting and sanitizing surfaces frequently enough to be effective in preventing the transmission of any virus.

Before deciding to reopen your association’s pool, your association should consider:

1. whether its residents will be able to comply with current social distancing requirement when at the pool (in other words, will your residents violate the County’s no gathering order), and
2. whether implementing proper disinfection protocols at the pool and for common surfaces is achievable or financially feasible.

If the answer is “no” to either of these questions, we recommend that your association keep its pools closed until further direction is given by the County and/or the State. Your association should also contact its pool vendor for its expert recommendation. Finally, your association should also confirm whether your city still has shared pool restrictions in place.

GOLF COURSES PERMITTED TO OPEN WITH RESTRICTIONS

The County has also permitted golf courses to be opened for limited use provided the owner and operator of the golf course has completed and fully implements the County’s Golf Course Physical Distancing & Safety Plan and has submitted the plan to the Public Health Officer at least two days before opening. This form can be found here.

Golf Courses must also:

• Perform temperature screenings of employees and customers (anyone with a temperature of 100 degrees or more may not enter the facility). Logs should be kept showing who had their temperature taken, when it was taken, who took the temperature, and what the temperature reading was.
• Prohibit the use of carts. Golfers may only walk the course.
• Prohibit all sit-down food service.

If your association owners or operates a golf course and you need assistance ensuring all forms have been completed and submitted properly before reopening, please contact your association’s legal counsel.

COMMUNITY PARKS AND RECREATIONAL BOATING

Public parks and recreation areas are also permitted to reopen in compliance with the County’s protocols. Members of a family or household are permitted to participate in active sports activities (e.g., soccer, throwing a baseball). Parking lots at parks may be opened at 50% capacity.

Recreational boating in bays, lakes and oceans is allowed provided all occupants of a boat are from the same household.

Keywords: COVID-19, Coronavirus

Late in the day on Friday, April 24, 2020, Riverside County updated its “COVID-19: Frequently Asked Questions Concerning State and Local Orders” to allow private pools, including those in community associations, to reopen under the following limited conditions:

• Pools can operate for single occupancy only (one swimmer at a time), regardless of size (e.g., spas) or volume of the pool.
• No gatherings around the pool are permitted; however, a parent or guardian should remain with a minor who is swimming at all times to ensure the minor’s safety.
• All outdoor furniture in pool areas must be removed or stacked/chained in such a manner that furniture is rendered unusable.
• Drinking fountains and showers must remain closed and roped off from use.
• High touch areas such as hand rails, restroom surfaces, light switches, dispensers, faucets, and door knobs must be sanitized frequently.
• Pools must continue to be maintained in accordance with all County laws and regulations to ensure proper chemicals and safety measures are present. More information on pool safety can be found online at: https://rivcoph.org/coronavirus

As a practical matter, most associations are going to have difficulty implementing, monitoring, and enforcing the County’s requirements. If this is the case for your association, you may choose to keep your association’s pools closed unless and until Riverside County further relaxes and explains its shared pool use restrictions.

However, if your community desires to open its pools for single occupancy use, then it should consider adopting emergency rules that requires swimmers to observe County restrictions, and use the pool for a limited amount of time, e.g., 30 minutes per day.

Your association should also post notices at the pool area entrance which state that the pool can only be used by one swimmer at a time and no gatherings around the pool are permitted, except for a parent or guardian of a minor who is swimming.

Additionally, the notice should state that everyone is personally responsible for their own compliance, and that the swimmer is assuming the risk of using the association’s pool and by using the pool the swimmer understands and agrees that the association cannot guarantee that they will not be exposed to or contract COVID-19 by being in the pool area or using the pool. Note, however, that providing assumption of risk notices may not shield your association from liability if someone gets hurt while using the community pool based on the County’s orders.

While Riverside County is starting to lift the prohibition on the use of private shared pools, the city in which your association is located may still have pool use prohibitions in place or have additional requirements that must be met before your community pool can reopen. Be sure to check with your city before your association opens its community pools pursuant the Riverside County requirements. Further, it is important to closely monitor State, County, and Local orders for changes and further guidance.

Keywords: COVID-19, Coronavirus

Our attorneys are advising clients on new COVID-19 related issues such as:

• Defining essential personnel
• Closing common area facilities
• Issues surrounding third-party vendors working on-site
• Maintenance of the common areas
• Conducting or delaying board meetings and annual meetings, and
• Anticipating any response to a resident being diagnosed with COVID-19

Many clients are asking, what are essential services that can be provided by others to the Association during the stay at home order?

There is no precise definition of essential persons, within an organization, in the Governor’s Order. We believe all services essential to maintaining the association’s assets and continuing the operation of the necessary services for residents would be classified as essential. For example, security or desk staff, accounting services, janitorial and building maintenance, day-to-day management, and advisors assisting in those services such as, accountants and lawyers. Depending upon the facts, services such as landscaping, and other contracted services could be viewed as essential.

We are also being asked whether owners need to pay assessments during the pandemic.

At the moment the answer is, yes. Owners need to be encouraged to pay assessments. Owners need to understand that their association is a non-profit organization and that all assessments go to operations of the community and protection of their assets. If an owner requests a payment plan, we recommend that you address those requests on a case by case basis, and that any payment plan agreement be reduced to writing. Please contact us if you need assistance with a payment plan.

Keywords: COVID-19, Coronavirus