HomeMy WebLinkAbout1997/11/10 Board of Appeals & Advisors Agenda Packet
Item 113A
Staff Report
Page 1 of 2
MEMORANDUM
DEPARTMENT OF BUILDING AND HOUSING
DATE: January 5, 1998
TO: Arthur Triplette, Chairman, Board of APpeal~isors
FROM: Mombon""" or App,"" .od A"'¡ I.¥
Kenneth G. Larsen, C.B.O., DIrect .
SUBJECT: Proposed Ordinance Changes to Pool Enclosure Requirements
Staff Report
----------------------------------
-------------------------------
RECOMMENDATION: The Board of Appeals and Advisors recommend approval of the
attached Ordinance modifications relating to the pool enclosure requirements (Chapter 15.48).
BACKGROUND: In September of1996, the Governor signed into law Assembly Bi\l3305, the
Swimming Pool Safety Act. The Act mandates local building departments enforce a set of
minimum standards for enclosures around pools and spas serving single family dwellings.
These new standards apply to all new swimming pools permitted after January I, 1998.
The Department of Building and Housing is proposing various changes to the Chula Vista
Municipal Code to ensure our local code requirements meet these new minimum standards.
Staff is also taking this opportunity to update the existing code provisions by eliminating
antiquated language and inserting wording that is consistent with the standards enforced by
the County of San Diego Department of Environmental Health.
The new requirements being proposed primarily address installing barriers between the pool
and the house or garage in those instances when the house or garage provides a portion ofthe
pool enclosure. These barriers may consist of any one of the following:
1) a five foot high fence completely around the pool
2) an approved pool cover
3) installation of exit alarms on all doors having direct access to the pool from the
residence or garage
4) installing self-closing and self-latching devices on all doors having direct access
to the pool, or
5) any other method approved by the Building Official that provides equal or
Item 113A
Staff Report
Page 2 of 2
greater protection than the methods identified above.
In an effort to alert local pool contractors to these new requirements, staff has mailed them a
summary ofthe State Law changes and an opinion from the Legislative Counsel of California
that identifies the need for local enforcement. A copy of this notice (Attachment B) is included
with this package for the Board's information.
Staff will be available at the Board of Appeals meeting of January 12, 1997 to answer any
questions.
KGLlbwr
(c:\wp8\bofapools)
attachments: Attachment A - Proposed changes to CVMC Chapter 15.48
Attachment B - Notice to San Diego Area Pool Contractors
Attachment A
Page 1 of 9
Chapter 15.48
SWIMMING POOLS
Sections:
15.48.010 Definitions.
15.48.020 Enclosure required-Exception.
15.48.030 Gates and doors in enclosure-Specifications-Exception,
15.48.040 Gates and doors in enclosure-Modifications of specifications permitted
when.
15.48,060 Variances from regulations permitted when-Procedure.
15.48.070 Location of pool-Limitations.
15.48.080 Compliance required-Time limit-Certain provisions not retroactive.
15.48.090 Other protective devices authorized when,
15.48,100 Violation-Continuation deemed nuisance.
15.48.105 Review of plans for public swimming pools-Fee.
15.48.110 Public pool-Permit required.
15.48.120 Public pool-Renewal of permit-Penalty for delinquency.
15,48.130 Enforcement of Sections 15.48.110 and 15.48.120.
15.48.010 Definitions.
For the purposes of this chapter, the following words and phrases shall have the meanings
respectively ascribed to them by this section:
1
Attachment A
Page 2 of 9
"Approved safely pool cover" means a manually or power-operated safety pool coyer Ihat meets
all Ihe performance slandards of Ihe American Socielv for TeslinQ and Malerials (ASTM), in
compliance with slandard F1346-91.
A, "Enclosure" means a fence ßf-6ther solid structure "ilh epcnings, heles er gaps Iherein no lenger
than twe and ene half inches in an~ dimension, provided, he..ever, Ihat if a picket fence is
erected er maintained, the hel'izontal dimensions shall not exceed four inches, and provided
further that a d..elling house or acœssolJ building may be used as part ef such enclesure, , wall
or other barrier that completelv surrounds a swimmina pool lot or premises,
"Exit alarms" means devices thai make audible. continuous alarm sounds when any door that
permits access from the residence to Ihe pool area that is without any interveninQ enclosure, is
opened or is left aiar. Exit alarms may be batterY operated or may be connected to the eleclrical
wirina of the buildina.
"Public swimminQ pool" means a swimminQ pool operated for the use of the aeneral public with
or without charae. or for the use of the members and auests of a private club, Public swimminQ
pool does not include a swimminQ pool located on the Qrounds of a private sinale-familY home,
&. "Swimming pool" or "pool" means a container or structure designed tor er used for s..imming or
..ading b~ persðl1S;-ßf-wllielris-tfesignetl-f or used as a fish pond or liI~-pðfIdo any slructure
intended for swimminQ or recrealional bathina that contains water over 18 inches deep,
"SwimminQ pool" includes in-Qround and above-Qround structures and includes, but is not limited
to, hot lubs, spas, portable spas, and nonportable wadina pools,
15.48.020 Enclosure required-Exception.
2
Attachment A
Page 3 of 9
Every person in possession of land within the city, either as owner, purchaser under contract,
lessee, tenant, or licensee, upon which is situated a swimming pool, shall at all times maintain on the lot
or premises upon which such a pool is located, and completely surrounding such pool, lot or premises, a
substantial fence or other solid structure not less than five feet in height, with openings, holes or gaps
therein no larger than four inches in any dimension, ;-provided, l'I(),~c.er, that if a picket fence is erected
ðN1'I8ÌfIt8Îned, the horizðnlal-dimension shall flðl exceed fður inches, pro.ided further that ßany wall of a
one- sinQle family dwelling, duplex and t.~o family d,~elling, ðr a "all ðr "ails, ha.ing flð dððrs thaI ðpeft
directly intð the poðl area, ðfilfl apartment building or accessory buildings therdð, may be used as part
of the enclosure, The vertical clearance from the Qround to the bottom of the enclosure shall be no more
than two inches and the outside surface shall be free of protrusions, cavities, or other phvsical
characteristics that would serve as handholds or footholds that could enable a child below the aQe of five
years to climb over. Doors and Qates in these walls shall meet the requirements of Sec. 15.48.030.
Cxceptiðn, Duildings cla3sed b, the building code as ðther than a ðne ðr two-family d,;elling
8fld-t¡sett;-renled;-ßr leased fðr adult occupancy ðnly may ha'.e a fence ðr ()\he/'-Stlbslantial structure ðf
oot less than three feet in-heighl and may ha.e dððrs opening directly intð the pððl area,
15,48.030 Gates and doors in enclosure-Specifications-Exception.
All gates and doors opening through such enclosures shall be equipped with a self-closing and
self-latching device located at least four feet six inches above ground level, designated to keep and
capable of k.eeping such door or gate securely closed at all times when not in actual use, pf( '.ided,
howe'IIer, that the df)()r 6f any ðne ðr ¡',ð family d....elling or an adult occupancy building "here such
building fðrm3 any paft-ßHhe enclð3ure her'6in required, need n()\ be 3ð equipped.
cxœption. Duilding3 classed by the building code a3 ()\her than ðne f~mily or t"o-f~mily
œ..elling3 and used, rented or lea3ed for adult ðœupaney-ooly, 3hall ha.e Tlhe self-latching device shall
3
Attachment A
Page 4 of 9
be located on the pool side of the fence and shall be a minimum of six inches below the top of the fence.
All open type fences and gates shall have solid areas extending a minimum of twenty-four inches in all
directions from below the latching device,
In addition to the above requirements, sinQle family dwellinQs and attached or detached QaraQes leadinQ
to the pool area shall be provided with one of the followinQ safety features:
ª" The pool shall be isolated from access to a home bY an enclosure that meets the
requirements of See, 15,48.020.
b. The pool shall be equipped with an approyed safety pool cover.
c, The residence will be equipped with exit alarms on those doors proyidinQ direct access
to the pool.
!i. All doors proYidinQ direct access from the home to the swimminQ pool shall be equipped
with a self-closinQ. self-latchinQ deyice with a release mechanism placed no lower than
54 inches above the floor.
e, Other means of protection. if the deQree of protection afforded is equal to or Qreater than
that afforded by any of the deyices set forth in subdivisions (a) to (d), inclusiye, as
determined by the Director of BuildinQ and HousinQ,
Exception: SinQle family dwellinQs with hot tubs or spas equipped with 10ckinQ safety covers that
comply with American Society for TestinQ Materials - EmerQency Performance Specification
(ASTM - ES 13-89) need not comply with any of the additional requirements a) throuQh e) above,
4
Attachment A
Page 5 of 9
(Ord. 1244 §1 (part), 1969; Ord, 1049 §1 (part), 1967; prior code §29,3),
15.48.040 Gates and doors in enclosure-Modifications of specifications permitted when.
The Director of Buildina and Housina building inspector may make a slight modification, for good
cause shown in individual cases, with respect to the nature or position of the latch required by Section
15.48.030, Upon the application of a property owner, the Director of Buildina and Housina bttikIifIg
inspector may grant extensions of time for compliance, for good cause shown in individual cases, Such
extensions of time shall not exceed thirty days at a time, (Prior code §29,4),
15.48.060 Variances from regulations permitted when-Procedure.
The owners, occupants or persons in possession or control of the property wherein a swimming
pool is located subject to the provisions of this chapter may apply for modification or variance of the
terms and regulations set forth in this chapter. The application fee for a hearing before the Board of
Appeals and Advisors is as set forth in the Master Fee Schedule the Required ree(s), The application
submitted to the Department of Building and Housing shall be reviewed by the Director of Building and
Housing to determine whether or not the modification as requested would adversely affect the public
health, safety or general welfare. The Director of Building and Housing shall forward his report and
recommendation to the Board of Appeals, The Board of Appeals shall review the report, allow and
provide for specific modifications of terms of the chapter when it shall be determined that strict
compliance with the terms of this chapter will not materially benefit or safeguard the public and that the
work to be done will result in undue hardship to the owners or occupants or persons in possession or in
control of the property. (Ord, 2506 §1 (part), 1992; Ord, 2171 §1,1986; Ord, 1211 §1,1969; prior code
§29,6),
5
Attachment A
Page 6 of 9
15.48.070 Location of pool-Limitations.
No swimming pool shall be permitted in any front yard, as defined in the zoning ordinance of the
city, or in any side yard, as defined in the zoning ordinance of the city, facing on a dedicated street.
(Prior code §29,7),
15.48.080 Compliance required-Time limit-Certain provisions not retroactive.
The pro.isions ¡¡fthis chapter shall be c¡¡rnplied .,ith ~.ithin forty-fi.e days after the effecti.e
date of the ordinance codified in this chapter, This chapter shall not be retroactive with respect to its
provisions governing the location of swimming pools and with respect to the provisions of Section
15.48,050, (Prior code §29,8),
15.48.090 Other protective devices authorized when,
Other protective devices or structures may be used providing such structures and protective
devices have been previously approved by the board of appeals of the city, The board of appeals shall
determine that the degree of protection provided by the substitute devices or structures is not less than
the protection afforded by the fence, gate, self-latching and self-closing device described elsewhere in
this chapter. (Ord, 1049 §2, 1967; prior code §29,1 0),
15.48.100 Violation-Continuation deemed nuisance.
6
Attachment A
Page 7 of 9
The continuation of any violation of the provisions of this chapter is declared to be a nuisance,
(Prior code §29,9),
15.48.105 Review of plans for public swimming pools-Fee.
Any person desiring the review and approval of plans and specifications for a public swimming
pool by the Director of Environmental ptIb\ie Health pursuant to Section 116038 7780 of Title; 17 of the
California Health and Safety Code Administrati.e Code shall submit the plans to the director
accompanied by a fee as set forth in this section to cover the cost of the review. As soon after the plans
and specifications are submitted as is practical, the director shall review or cause to be reviewed the
plans and specifications and shall determine whether they are in accordance with the requirements of the
California Health and Safety Code, the California Code of Reaulations, the California BuildinQ Code and
the California Electrical Code pertainina to public pools Gections 7760 et seq, of Title 17 oHIte
California Administrati.e Code, In the event that the plans and specifications do not comply with the
Administrati.e Code§ pF6.isions, amended plans and specifications may be submitted to the Director for
rereview and approval, and the fee for each such rereview shall be as set forth in this section, payable to
the Director in advance, The fees are as follo..s:shall be that as established by the County of San Dieao
Board of Supervisors in the Annual Fee Ordinance commencina with Section 65.107 of the San Dieao
County Code of ReQulatorv Ordinances
A, rool rlan fe.ie.. , , , , , , , , , , , , , , , , ,$50,00,
0, rool rlan rere.ie.. . . , , , , , , , , , , , , , ,$20,00,
(Ord. 2001 §1 (part), 1982),
7
Attachment A
Page 8 of 9
15.48.110 Public pool-Permit required.
No person shall maintain or operate any pool except a private pool unless an annual operating
permit is issued therefor by the count~ health office r Director of Environmental Health, A pool shall be
considered a private pool if it is intended for non-commercial use as a swimmina pool bv not more than
three owner families and their Quests maintained b~ an individual fer the use of his famil~ and friends
and-for swimming instruction programs of short duration "hich are conducted b~ or sponsored by the
American Rgd Cross or other like recognized organization, An annual operating permit issued by the
Director of Environmental Health count~ health offieer is required for the operation of any public pool
including, but not limited to, all commercial pools, real estate and community pools, pools at hotels,
motels, resorts, auto and trailer parks, auto courts, apartment houses, clubs, public or private schools
and gymnasia, and health establishments, Every person applying for a permit as required by this section
shall, at the time of making application for such permit, pay an annual inspection fee of sixty dollars for
the first pool under one ownership and on the same property, and a fee of thirt~ dollars for each
additional pool on the same propert~ and under the same o"nership fello"s :shall be that as established
bv the County of San Dieao Board of Supervisors in the Annual Fee Ordinance commencina with
Section 65,107 of the San Dieao County Code of Reaulatorv Ordinances. The annual operating permit
shall be effective for a twelve-month period from the date of issuance,
Penalties for late payment of the Health Permit shall be as established in the San Dieao County
Fee Ordinance,
In an~ case ....here the applicant has failed for II period of thirt~ da~s to file the application and
obtain the permit required b~ this section, tMere shall be added to and collected "ith the inspection fee a
penlllt~ equal to tgn percent of tMe fee; and fer each additional month or fraction of a month after the
expiration of said thirt~ day-pcriod that the applicant fails to file such application and obtain such per~
8
Attachment A
Page 9 of 9
tfteri! shall bE added to and collected ....ith the inspection fee an additional penalt~ equal to ten percent of
the inspection fee, providEd, hov,ever, that in no event shall the total penalt~ added to the inspectiott-fee
pursuant to this sectißn be more than sixt~ percent of the in3pection ree, The imposition or pa~ment of
the penalty imposed b~ this section shall not pre'.ent the imposition of an~ other penalt~ prescribed by
slate la.w or cit~ ordinancE, nor shall it-prevent a criminal prosccution for violation of this chapter, (Ord,
2001 §1 (part), 1982; Ord, 1700 §1 (part), 1976),
15.48,120 Public pool-Renewal of permit-Penalty for delinquency.
A permit issued pursuant to this chapter shall be renewed annually, Application for the renewal
shall be made to the count~ health officer Director of Environmental Health. At the time application is
made. there shall be paid to the county health officer the annual fee prescribed by Section 15.48,110,
The annual fee, if unpaid longer than thirty days after the expiration of the previous permit, is delinquent,
and thereafter a penalty shall be imposed in the manner prescribed in Section 15.48,110. (Ord, 1700 §1
(part). 1976).
15.48,130 Enforcement of Sections 15.48.110 and 15.48.120.
The county of San Diego, acting through its officers and employees, shall enforce the provisions
of Sections 15.48,110 and 15.48.120 and carry out such inspection activities pursuant to the agreement
for-püb/ie health services entered into on December 7,1952; provided, however, that the city shall
undertake appropriate legal action for any violation of said sections, (Ord. 1700 §1 (part), 1976),
9
Attachment B
~~~ Page 1 of 8
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CI1Y OF
(HUlA VISTA
BUILDING AND HOUSING DEPARTMENT
DATE: December 15, 1997
TO: San Diego Area Pool Contractors
SUBJECT: New Pool Enclosure Requirements - Effective January 1, 1998
Earlier this year the Swimming Pool Safety Act was signed into law by the Governor. This law
mandates that all new swimming pools permitted after January 1, 1998 meet specified pool
enclosure requirements. The Chula Vista Department of Building and Housing is mandated
to require all new swimming pools to meet these new standards.
A copy ofthe Legislative Counsel's opinion regarding enforcement of Swimming Pool Safety
Act (Assembly Bill 3305) is attached for your information.
The new requirements are summarized as follows:
All new pools and spas must have one ofthe following child features when the house or
~ara!!e forms Dart of the 0001 enclosure and has door oDenin!!s that lead into the 0001
yard area:
· The pool area must be isolated from the home by additional yard fencing; or
· The pool must be equipped with an approved safety cover; or
· The residence must have exit alarms on doors leading from the house directly
to the pool yard area; or
· All doors leading to the pool yard area must have self-closing, self-Iatching door
hardware with latches at 54" above the floor.
The Department of Building and Housing will require applicants for pool permits to declare
on the plans which ofthe above methods will to used to comply. These requirements shall be
in place, or suitable evidence of its intended placement, prior to plastering the pool or filling
a spa with water. If you have questions about these requirements please call Greg Bottorff
(619) 691-5272 ext 3098.
KGLfBWR/bwr
attachment
276 FOURTH AVENUE' CHUu\ VISTA· CALIFORNIA 91910 . (619) 691-5007' FAX (619) 691-5171
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Attachment B
Page 2 of 8
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Depcmet
Honorable Barbara Lee
5064 State Capitol
Local Ordinances: Swimmina Pool Safetv - #11837
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 Code?
OPINION
A local ordinance adopted on or before January ~, 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 (he~gafter the act)
comprises Sfctions 115920 to Y15927, inclusive, of the Health and
safety Code (Sec. 3, Ch. 925, Stats. 1996). Section 115922
provides as follows:
"115922. Commencing January 1, 1998, except
as provided in section 115925, whenever a
construction permit is issued for 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.
- . - .. - ...,. -,
Attachment B
Page 3 of 8
Honorable Barbara Lee - p. 2 - #11837
it shall be equipped with at least one of the
following safety features:
"(a) The pool shall be isolated fro: access to
a home by an enclosure that meets the requirements
of Section 115923. '
"(b) The pool shall be equipped with an
approved safety pool cover.
"(C) The residence shall be equipped with exit
alarms on those doors providing direct access to
the pool.
"(d) All doors providing direct access from
the ho:e to the swimming pool shall be equipped
with a self-closing, self-latching device with a
release machanismplaced no lower than 54 inches
above the floor.
H(.) Other :eans of protection, if the degree
of protection afforded is equal to or greater than
that afforded by any of the devices set forth in
subdivisions (a) to (d), inclusive, as determined
by the building official of the jurisdiction
issuing the applicable building permit. Anv
ordinance aovernina child access to Doo1s adoDted
~ ~ Dolitical subdivision on .QJ;: before January 1,
1997, is presumed !.Q afford protection ~ is
eaual !.Q .QJ;: areater than that afforded ~ ~ of
the devices set forth in subdivisions l£l ~ ~,
inclusive."~ [Emphasis added_)
Thus, Section 115922 would require new pools constructed
on or after ~anuary 1, 1998, at a privata, 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 ~e pool would be required to be
equipped with exit alarms or certain self-closing, self-latching
2 Section 115925 exe:pts public swimming pools, certain hot
tubs and spas, residential settings other than single-family
ho:es. Subdivision (C) 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.
Attachment B
Page 4 of 8
Honorable Barbara Lee - p. 3 - 111837
devices. section 115922 also permits "other means of protection,
if the degree of protection afforded is equal to or greater than
any of the devicesH 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, 199~,
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, in 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 qreater 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 Ca1. 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 COrD. v.
sunerior 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 (Citv of
National ~ v. Fritz, 33 Cal. 2d 635-636).
In this reqard, 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
Attachment B
Page 5 of 8
Honorable Barbara Lee - p. 4 - 111837
children in Calirornia (Assembly Bill Analysis for Concurrence in
Senate Amendments (8/29/96), at p. 3). The Senate Committee on
Judiciary also relied on California surveys of isolation fencinq
requirements around the pool and noted that the most effective 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.B. 3305) stated as follows,
at page 3:
-This bill does not establish a statewide
standard since 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)otwithstandinq any other
provision of law, this article(act] shall 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 afforded by the act, makes the building official
issuing the building permit the local officer with authority to
determine whether other means of protection are equal to or
greater than that afforded 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, òecause local agencies are authorized to adopt
ordinances that include equivalent standards and because no state
regulatory agency may modify 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 (e) 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
Attachment B
Page 6 of 8
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
conclu:;ive.
In this regard, while presumptions may be rebuttable or
conclusive under California law, Section 620 of the Evidence Code
provides that all presumption:; established in Article 2
(commencing with Section 620) of Chapter J 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 :;afety 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, in 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 subdivisio~ (e) presumption may be rebutted and that this
construction best parallels the intent of the Legislature and
underlyinq purposes of the act. This conclusion in no way renders
subdivision (e) and Section 115927 as mere surplusage because
local buildinq officials and local agencies still have sole
administrative discretion to administer the act unfettered by
- .' -, - - - ... _. . -
Attachment B
Page 7 of 8
Honorable Barbara Lee - p. 6 - #11837
£tate 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 subdivi5ion (e) and broadly effectuating the
pUrposes of the act, would conclude that its presumption is to be
construed a5 posited in the second construction set forth abovë,
but that the presumption is rebuttable. Thus, 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 factual determination that
perimeter fencing containing a swimming pool does not satisfy the
requirements of section 115922 best effectuates the purposes of
the act. This is hecause 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 feature in common--they prevent a child's
access from the home to the swimming pool. Thus, we think that
the more reasonable interpretation of the Legislature's intent is
that a safety device that governs a child's access to a swimming
pool is only one of several that has the capability of preventing
the child from entering the pool from 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.
Accordingly, we conclude that a local ordinance adopted
on or he fore 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 of Section 115922 of
the Health and safety Code.
; Very truly yours,
Bion M. Gregory
Legislative Counsel
By ~~ } ~
Anthony P. Marquez ~
Deputy Legislative Counsel
APM: nd
-- .. --
Attachment B
Page 8 of 8
Azure Construction Blue Fountain Pools Blue Haven Pools/Zembell Mkt
7423 EI Cajon Boulevard 6136 Mission Gorge Road, #112 2130 Industrial Court, Suite F
- , Diego, CA 92104 San Diego, CA 92120 Vista, CA 92083
Catalina Pools, Inc, Heritage Pools Image Scapes
P.O, Box 488 11434 Shadow Ranch Road 4836 Frisell Drive
La Mesa, CA 91941 La Mesa, CA 92041 San Diego, CA 92117
Landmark Pools Leathum & Co. Mission Pools, Inc,
5000 Thorne Drive, Suite D 1524 Avenida De Las Adelas 755 W. Grand Avenue
La Mesa, CA 91941 Encinitas, CA 92024 Escondido, CA 92025
Mission Valley Pool & Spa North County Pool Service Pacific Construction
8840 Miramar Road, Suite C P,O. Box 1241 11825 Hi Ridge Road
San Diego, CA 92126 Carlsbad, CA 92008 Lakeside, CA 92040
Padre Pools Pool & Spa Center Poolscape 2000, Inc.
9679 Marilla Drive 8550 Production Avenue, Suite A 2306 Mangrum Place
Lakeside, CA 92040 San Diego, CA 92121 Oceanside, CA 92056
Questar Pools & Spas San Diego Pools Sandpiper Pools, Inc.
702 Luna Vista Drive 2430 Camino Del Vecino 2005 Escondido Boulevard
Escondido, CA 92025 Alpine, CA 91901 Escondido, CA 92025
Seascape Pools Sun Pools & Spas Superior Pools
7571 Mission Gorge Road 13330 Highway 8 Business 10237 East Haven Drive
San Diego, CA 92120 Lakeside, CA 92040 Santee, CA 92071
Swan Pools The Pool Station Total Custom Pools & Solar
P,O, Box 2029A 11974 Woodside Avenue 6355 Cabaret Street
EI Cajon, CA 92021 Lakeside, CA 92040 San Diego, CA 92120