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Home My WebLink About1997/10/20 Board of Appeals & Advisors Agenda Packet ..J-~-fYì 'j 7· If;? /1/ .1IdCI'10ttOfl ~:egisIatiÍ!:e Œøuns:el Gall:1d Rða AaMls ............... Ô'I¡MD8ØU'!Y PaLotAr\ÞI\II o.Wl8..tJ.iG&on ~AÖIIOA/'lw¡,r ,.,. ft. !tA1~ Jal'!'\iNL Anoro en.f1M C JlUllII ~8.Kt_'"" H.I'\WJ ¡:-...:* ~~J..14I ShNR.K&.nu: JOhn f.!1\JC16£W1fMl nf Œalifnrnia l.tII.K.l5i11'l\'W'I "- y~ o..n...^....,~n "-c,,",- LEriIII."vIgc ...",......~... ~.... '" L.N Oa\o1Clo.""," Ei'-"J.~ 0.,..0. UI't o._"~'VJ'" C;1'IO'y".~uIIO -'-" c....o.1f>d o;œ.~ ~"",.,...,~ KIItIS.l.LIwI Roa.rICWlenOv"'t BION M. GREGORY 6T>qCutrw Matla/'la Mar~ A*" 0 GfOll_ aen£. ~. ...-... - UidIuI.J. qlll~ ~c.Oar!\"ru.Jr ,.,~............ .-.........M..,.. Je....,.A.~" J.........~'-\r ~laM'IM' C~J.'Mq --- T..x,O PoMo¡ JI ~I\CIMSOorÞro .....- ~1"QUet1W/ÕlotP'\ ¡,q,....,.,ð.Ou"n .........- r.AIUIMIHu~ h.r0'\ R. ~~ TanoAu6G Ch~ZítIUll' 0.,,''''' WlNelfJ.~ ,"r~lo.þI,I,," Sacramento, California ~"'.~... _0<.,.". o.or. MdI G!Þ:It\s. _L...... ~;,. K. a_n 8.... s...CI sw.~. 5..... 3021 June 25, 1997 sony. "'- GIUII .....-- Sl.c:~INI'ItCI.CA m1+-4t116 .AMn D. GI'8M ""'''- ¡O'ð14"50:1057 fJi.-.n... GI.u AòCnMI ThQnI.IOft T~r: fIU61322·0TW ................... FlChallla~ JaN T HarrIftQ* ThcmI.O. Wl'l1III'I ~S.H.¡' ......L-..., T'I'IGorI..... H....... .-a:G.~ !)tpu:ries. Honorable Barbara L.. 5064 State Capitol Local Ordinances: Swimmina Pool Safetv - 111837 Dear Senator Lee: QUESTION Would a local ordinance adopted on or before January 1, 1997, that requires the installation of fencing at the perimeter of a yard containing a swimming pool, but not a barrier between the house and the pool or any other safety device, satisfy the requirements of Section 115922 of the Health and Safety Cede? OPINION A local ordinance adopted on or before January 1, 1997, that requires the installation of fencing at the perimeter of a yard containing a swimming pool, but not a barrier between the house and the pool or any other safety device, would not satisfy the requirements of Section 115922 of the Health and Safety Code. ANALYSIS The Swimming Pool Safety Act (hereafter the act) comprises Syctions 115920 to 115927, inclusive, of the Health and Safety Code (Sec. J, Ch. 925, Stats_ 1996) . Section 115922 provides as follows: "115922, Commencing January 1, 1998, except as provided in Section 115925, whenevêr a construction permit is issued fer construction of a new swimming pool at a private, single-family home 1 Hereafter, all statutory references are to the Health and Safety Code unless otherwise indicated. -- Honorable Barbara Lee - p. 2 - 111837 it shall be equipped with at least one of the following safety features: "Ca) The pool shall be isolated from access to a home by an enclosure that meets the requirements of Section 115923. "Cb) The pool shall be equipped with an approved safety pool cover. "Cc) The residence shall be equipped with exit alarms on those doors providing direct access to the poo l. "Cd) All doors providing direct access from the home to the swimming pool shall be equipped with a self-closing, self-latching device with a release mechanism placed no lower than 54 inches above the floor. "Ca) Other means of protection, if the degree of protection afforded is equal to or greater than that afforded by any of the devices set forth in 8Ubdivisions Ca) to Cd), inclusive, as determined by the building official of the jurisdiction issuing the applicable building permit_ ADY ordinance Qov8rnina child access to pools adoDted ~ ~ D01itical subdivision 2n ~ before January 1, 1997, is 'Dresurned .t!2 afford protection that ~ eaual !g 2t areater than ~ afforded ~ ~ of the devices ~ forth in sUbdivisions lAl ~ ~, inclusive."~ [Emphasis added.] Thus, Section 115922 would require new pools constructed on or after January 1, 199&, at a private, single family home to either be isolated from the home with a prescribed enclosure or equipped with a safety pool cover, or the doors of the residence that provide direct aCCess to the pool would be required to be equipped with exit alarms or certain self-closing, self-latching ~ Section 115925 exempts public swimming pools, certain hot tubs and spas, residential settings other than single-family homes. Subdivision CC) of Section 115925 also exempts "(a)ny pool within the jurisdiction of any political subdivision that adopts an ordinance for swimming pool safety that includes requirements that are at least as stringent as this article [act)". Section 115923 sets forth access gate requirements, minimum height and vertical clearance requirements, gap and void requirements, and other requirements pertaining to handholds or footholds. Honorable Barbara Lee _ p. 3 - #11837 devices. Section 115922 also permits ~other means of protection, if the degree of protection afforded is equal to or greater than any of the devices" described in the preceding sentence, as determined by the local building official issuing the bUilding permit for the new pool. Finally, subdivision (e) of Section 115922 provides that any ordinance governing Child access to pools adopted by a political subdivision on or before January 1, 1997., is presumed to afford equal or greater protection than the alternative devices required by Section 115922. This latter provision is susceptible to several constructions. First, it could be construed to mean that any local ordinance concerning child access to pools adopted on or before January 1, 1997, WOUld be presumed to meet the requirements of Section 115922 whether or not the required protection was equal to or greater than the protection provided by the alternative devices enumerated in Section 115922 and thus a jurisdiction with any local ordinance adopted on or before January 1, 1997, relating to child access to pools would be exempt from the requirements of Section 115922. A second construction would be that any ordinance adopted on or before January 1, 1997, concerning child access to pools that is intended to prevent child access from the private home to the swimming pool would be presumed to meet the standards. Third, since the provision provides a presumption for these local ordinances, it could be construed by a court to require that the protection required by the ordinance, 1n fact, be equal to or greater than the alternative devices enumerated in Section 115922, and thus that the presumption could be rebutted it the other means of protection are not equal to or greater than that required by that section. When a statute is theoretically capable Of more than one construction, the courts look to that interpretation which most comports with the intent of the Legislature (California Mfrs. Assn. v. Public Utilities Comm., 24 Cal. 3d 836, 844) , and where a statute is susceptible to two constructions, the one that leads to the more reasonable result will be followed (MetroÐolitan Water Dist. v. Adams, 32 Cal. 2d 620, 630-631). Statements in a report of a legislative committee concerning the object and purpose of a statutory proposal that parallel a reasonable interpretation of the proposal should be followed (Beltone Electronics COrp. v. SUDerior Court, 87 Cal. App. 3d 452, 455, at fn_ 1) . Statutes for the protection of the public welfare are ordinarily to be given a broad construction (Askew v. Parker, 151 Cal. App. 2d 759, 762) . Exceptions to a statute are to be narrowly construed (City of National ~ v. Fritz, J 3 Ca 1- 2d 635-636). In this regard, Assembly Bill No. 3305 of the 1995-96 Regular Session, as amended August 21, 1996, was intended to prevent the backyard sWiMming pool drownings and brain injuries to Honorable Barbara Lee _ p. 4 - #11837 children in Cali~ornia (Assembly Bill Analysis for Concurrence in Senate Amendments (8/29/96), at p. 3). The Senate Committee on Judiciary also relied on California surveys o~ isolation fencing requirements around the pool and noted that the most affective way to prevent the most common death of young children in California is to place a barrier between the home and the pool (Analysis, Senate'committee on Judiciary (6/27/96). at p. 5) . However, the Assembly Bill Analysis for Concurrence in Senate Amendments for the bill enacting the act (A.B. 3305, as amended AUgust 21, 1996; hereafter A.8. 3305) stated as follows, at page 3: "This bill does not establish a statewide standard sinca it allows local governments to adopt ordinances which provide equal or greater pool safety. Nor does this bill establish minimum safety standards since it grandfathers-in all local ordinances adopted prior to January 1, 1997, regardless of the level of safety provided_" Section 115927 could be construed in a manner consistent with this statement and provides that "[n)otwithstanding any other provision of law, this article[act) Bhall not be sUbject to further modification or interpretation by any regulatory agency of the state, this authority being reserved exclusively to local jurisdictions as provided for in subdivision (e) of Section 115922 and subdivision (C) of Section 115924." Subdivision (e), in addition to presuming that ordinances adopted prior to January 1, 1997, afford protection that is equal to or greater than the protections aftoråeå by the act, makes the building otticia1 issuing the building permit the local officer with authority to determine whether other means of protection are equal to or greater than that atforåed by the act. There is no subdivision (c) of Section 115924. This erroneous reference would in our opinion be construed by a court to refer to subdivision (C) of Section 115925 which exempts any pool from the act if it is within a jurisdiction that adopts an ordinance for pool safety that includes requirements at least as stringent as the act (see footnote 2). Thus, because local agencies are authorized to adept ordinances that include equivalent standards and because no state regulatory agency may mod1!y local building official determinations under the act, it could be argued that the effect of subdivision (e) coupled with Section 115927 is that local determinations are not rebuttable and that the presumption in subdivision (el concerning ordinances adopted prior to January 1, 1997, is conclusive, If the presumption of subdivision (e) is conclusive, then under the first construction set forth above, any ordinance 0 ~. -, Honorable Barbara Lee - p. 5 - #11837 adopted prior to January 1, 1997, even an ordinance for perimeter fencing, but no safety barrier between the private home and the swimming pool, would be deemed to satisfy the requirements of the act. Under the second construction set forth above, any ordinance adopted prior to January 1, 1997, that is intended to prevent child access from the private home to the sWimming pool would be conclusively deemed to satisfy the requirements of the act if _ Subdivision (e) is construed as conclusive. However, this second construction would not be satisfied by perimeter fencing because the fencing is clearly not intended to prevent child access from the private home to the swimming pool. The third construction set forth above, of course, precludes construing SUbdivision (e) as conclusive. In this regard, while presumptions may be rebuttable or conclusive under California law, Section 620 of the Evidence Code provides that all presumptions established in Article 2 (commencing with Section 620) of Chapter 3 of Division 5 of the Evidence Code "and all other presumptions declared by law to be conclusive, are conclusive presumptions" (see Ch. 3 (commencing with Sec. 600), Div. 5, Evid. c.). Because Subdivision (e) does not declare the presumption it establishes as conclusive, it could be argued that the presumption that a local ordinance adopted on or before January 1, 1997, affords protection that is equal to or greater than that afforded by any of the safety devices specified by the Legislature may be rebutted by fact if a local agency's determination is challenged in court. Under this construction, the question is posed whether the installation of fencing at the perimeter of a yard containing a swimming pool, but not a barrier between the house and the pool, 1n fact qualifies as a safety device governing child access to sWimming pools within the meaning of subdivision (e). This narrower construction of subdivision (e) and Section 115927 more broadly effectuates the pUblic welfare purposes of the act to prevent backyard pool drownings and brain injuries to children in California. Moreover, had the Legislature intended to make sUbdivision (e) a conclusive presumption that same result could have easily been achieved by adding a sUbdivision to Section 115925, the section that provides exemptions from the act, stating that local jurisdictions with pertinent ordinances enacted prior to the effective date of the act (January 1, 1997) would be exempt. Thus, notwithstanding the conflicting committee analysis, we think a court would conclude that the subdivision (e) presumption may be rebutted and that this construction best parallels the intent of the Legislature and underlying purposes of the act. This conclusion in no way renders subdivision (e) and Section 115927 as mere surplusage because local building officials and local agencies still have sole administrative discretion to administer the act unfettered by Honorable Barbara Lee _ p. 6 - #11837 state regulatory agencies and previously adopted ordinances are presumed to comply with the act, but an affected ·person would be able to rebut that presumption factually. We also think that a court considering the matter, while narrowly construing SUbdivision Ce) and broadly effectuating the purposes of the act, would conclude that its presumption is to be construed as posited in the second construction set forth abovè, but that the presumption is rebuttable. Thua, any ordinance adopted prior to January 1, 1997, that requires safety devices to prevent child access from the private home to the sWimming pool would be presumed to satisfy the requirements of the act, but that presumption would be rebuttable. Finally, we think the tactual determination that perimeter fencing containing a swimming pool does not satisty the requirements Of Section 115922 best effectuates the purposes of the act. This is because all of the safety devices designated by the Legislature in Section 115922, inClUding an enclosure, pool cover, exit alarms on doors, and self-closing and latching devices on doors, have one !eature in common--they prevent a child's accesa from the home to the swimming pool. Thus, we think that the more reasonable interpretation of the Legislature's intent is that a satety device that governs a child's access to a swimming pool is only one Of several that has the capability of preventing the child trom entering the pool trom the house and that the installation of a fence at the perimeter of the yard containing the sWimming pool in and of itself does not prevent a child's access from the house to the pool. Accorc1ingly, we conclude that a local ordinance adopted on or before January 1, 1997, which requires the installation of fencing at the perimeter of a yard containing a swimming pool, but not a barrier between the house and the pool or any other safety device, would not satisfy the requirements ot Section 115922 of the Health and safety COde. Very truly yours, Bion K. Gregory Legislative Counsel By ~'J? fJ ~ Anthony P. Marquez ~ Deputy Legislative Counsel APM:nd - _. -- --- - - --