By Stephanie M. Chaissan, Esq.

On December 19, 2007, the federal government enacted the Virginia Graeme Baker Pool and Spa Safety Act to promote pool safety by imposing mandatory federal requirements for suction entrapment avoidance in public pools and spas. The act pertains not only to the manufacture, importation and sale of suction outlet fittings (drain fittings and covers), but also to entrapment avoidance systems in all public pools and spas. As the act includes within the definition of public pools and spas those pools open exclusively to the residents of a multi-unit apartment building complex, it is applicable to condominium, community and homeowners associations.Bringing your Pool into Compliance with the Virginia Graeme Baker Pool and Spa Safety Act

The act mandates that each public swimming pool or spa must have certain equipment as of December 19, 2008, including special drain covers and devices or systems designed to prevent entrapment by pool or spa drains.

Public pools and spas that are open year-round, as is typically the case in South Florida , must have been in compliance by the December 19, 2008, deadline. However, there have been many reports of pool operators being unable to bring their pools into compliance by the deadline due to the unavailability of compliant drain covers. The Consumer Product Safety Commission (CPSC) , which oversees compliance with the act, is aware of the difficulty that some pool operators have encountered in obtaining compliant drain covers, but it has stated that there will be no grace periods under the act extending the deadline for compliance.

While associations should continue all diligent efforts to bring their pools into compliance, it has been suggested by the CPSC that pools should be closed until compliance is achieved. However, we understand that while it is not recommended to keep a non-compliant pool open, the CPSC has set forth a prioritized list for where they will focus their enforcement efforts. In telephone conversations with CPSC representatives, we have been advised that the agency will first focus its efforts on pools that present the greatest risk of drain entrapment to children, such as wading pools, pools designed specifically for toddlers and young children, and in-ground spas that utilize flat drain gates and single main drain systems. However, associations should bear in mind that even though the CPSC is not able to inspect each and every pool, state health and enforcement agencies also share the responsibility of inspecting pools and ensuring compliance.

If compliant equipment is not installed and the CPSC or another enforcement agency discovers that the pool is not in compliance, the first step in the enforcement process would likely be a pool closure, not a monetary penalty. The good faith effort(s) of a pool operator in bringing their pool into compliance will be taken into consideration, should the need for additional penalties arise. In addition to penalties that may be inflicted by the CPSC and other enforcement agencies, associations should be aware that they may not be able to obtain insurance coverage for their pools that are not in compliance with the act.

The Florida Department of Health has also stated that in order to comply with the act, all pools and spas in Florida will be required to replace the existing cover on the main drain with one that is compliant with the ASME/ANSI A112.19.8 standard. Pools built in 1977 or later and spas built in 1993 or later that have a gravity drainage system to a collector tank will only need to replace the main drain cover. After replacing the drain cover, the contractor who performed the installation (who must be a Florida licensed pool contractor) or pool owner must submit a contractor-signed statement to the County Health Department (CHD) stating that they have replaced the cover to be in compliance with this standard. Older pools that utilize a direct suction system will need to replace the main drain cover and utilize one of the additional suction mitigation systems or devices listed in the act. In order to make such modifications, the pool owner must apply for a modification permit from the CHD or Regional Engineering Office by submitting the current modification forms with engineering documents and the requisite fee.

For many years now, the Florida Administrative Code has required certain pools and spas to be equipped with gravity drainage systems with collector tanks. However, the CPSC has opined that the act does not preempt Florida law. Florida law is permitted to be more restrictive than the act, so long as the state laws, rules or restrictions do not hinder the intent of the act or make complying with its requirements difficult or impossible. Therefore, public pools in Florida will have to meet both the standard set forth in the act as well as under Florida laws and regulations. Pool operators should bear in mind that a public pool employing a gravity drainage system with a collector tank alone will not satisfy the act, as the pool must also employ an acceptable anti-entrapment drain cover.

The code was recently revised, effective May 24, 2009, to require that all pools built without a main drain collector tank must be fitted with a properly sized and piped collector tank before the dates set forth in the code in order to eliminate direct suction through the main drain. For all pools with a main drain grate water depth of four feet or less, the collector tank must be installed on or before May 24, 2010. For spas, the deadline depends upon when the spa was originally built. Moreover, the code requires that existing pools with direct suction main drains must install a main drain cover/grate that meets the 1.5 feet per second water velocity requirement in the code, in addition to being in compliance with the standard set forth in the act. Lastly, the code states that pools that cannot be refitted with the necessary equipment by the deadlines set forth in the code must be closed. All associations which have not already brought their pools and spas into compliance with the act should be mindful of its requirements and take the necessary steps to make the necessary modifications as soon as possible. If compliant parts or equipment cannot be obtained, the pool should be closed until the parts or equipment are installed. Failure to do so may not only subject the association to penalties, but also put the lives of occupants and swimmers at unnecessary risk.