California Pool and Spa Safety Act Revisited

Periodically, CPSA receives inquires and/or complaints about how local building officials interpret the newly amended Pool Safety Act. In some cases, building officials have reportedly refused to allow one or more of the safety devices specified by the law; tried to mandate certain devices preferred by local officials; required builders to meet additional mandates; or divide safety devices into categories and require builders to choose one safety device from each category.

CPSA has intervened in a number of these situations and has generally been successful in working with local building officials in clarifying the application of the Act. As such, we felt it was time to provide builders with a summary and explanation of the Pool Safety Act as it was amended in 2017. It is hoped that this document can be a tool for builders and homeowners to use in discussions with local building officials that might have a different interpretation of the Act.

The original Pool Safety Act was enacted in 2006. It was the product of a two-year battle over legislation mandating that every pool be isolated from a residence by a fence around the pool. Don Burns, the former President and lobbyist for CPSA, then known as SPEC, negotiated the final language of the bill. Instead of a fence mandate, the legislature passed a bill that required pool builders to install 1 of 7 devices to protect children from access to swimming pools or spas.

In 2016, advocates for the prevention of accidental childhood deaths sponsored a bill in the California Legislature to amend the Pool Safety Act to require pool builders to install 2 of the 7 devices specified in the Act rather than 1. The rationale for this legislation was twofold. First, drowning is still the leading cause of death for children ages 1-4. Second, between 2010-2015, 740 children ages 1-4 were hospitalized after suffering a near-drowning incident, with the leading cause of hospitalization being brain injury due to lack of oxygen, also known as asphyxiation. The cost to the State of California to care for these children runs in the tens of millions of dollars annually.

CPSA initially opposed this bill. However, a compromise was reached when the author and sponsors of the legislation agreed to repeal provisions of the law which allowed local entities to enact ordinance more stringent than state law. In other words, cities and counties could enact local ordinances requiring two or more safety devices, and some cities/counties did.

CPSA saw this as an opportunity to create a single statewide standard. With that in mind, CPSA signed off on the bill. Governor Brown vetoed the bill in 2016 but after heavy lobbying by families of children who drowned or have been disabled due to a near-drowning incident, he agreed to sign SB 442 in 2017.

So, what is the law today and how should it be applied?

Health and Safety Code Section 115922 and Section 115925 governs the issue of what barriers or enclosures a homeowner and/or pool contractor is required to install to protect children from unsupervised access to swimming pools and spas. This statute, as most recently amended by SB 442 (Chapter 670), requires a pool homeowner or contractor to install at least two safety devices from a list of seven options.

Section 115922 of the Health and Safety Code is amended to read:

1. Except as provided in Section 115925, when a building permit is issued for the construction of a new swimming pool or spa or the remodeling of an existing swimming pool or spa at a private single-family home, the respective swimming pool or spa shall be equipped with at least two of the following seven drowning prevention safety features:
   1. An enclosure that meets the requirements of Section 115923 and isolates the swimming pool or spa from the private single-family home.
   2. Removable mesh fencing that meets American Society for Testing and Materials (ASTM) Specifications F2286 standards in conjunction with a gate that is self-closing and self-latching and can accommodate a key lockable device.
   3. An approved safety pool cover, as defined in subdivision (d) of Section 115921.
   4. Exit alarms on the private single-family home’s doors that provide direct access to the swimming pool or spa. The exit alarm may cause either an alarm noise or a verbal warning, such as a repeating notification that “the door to the pool is open.”
   5. A self-closing, self-latching device with a release mechanism placed no lower than 54 inches above the floor on the private single-family home’s doors providing direct access to the swimming pool or spa.
   6. An alarm that, when placed in a swimming pool or spa, will sound upon detection of accidental or unauthorized entrance into the water. The alarm shall meet and be independently certified to the ASTM Standard F2208 “Standard Safety Specification for Residential Pool Alarms,” which includes surface motion, pressure, sonar, laser, and infrared type alarms. A swimming protection alarm feature designed for individual use, including an alarm attached to a child that sounds when the child exceeds a certain distance or becomes submerged in water, is not a qualifying drowning prevention safety feature.
   7. Other means of protection, if the degree of protection afforded is equal to or greater than that afforded by any of the features set forth above and has been independently verified by an approved testing laboratory as meeting standards for those features established by the ASTM or the American Society of Mechanical Engineers (ASME).
2. Before the issuance of a final approval for the completion of permitted construction or remodeling work, the local building code official shall inspect the drowning safety prevention features required by this section and, if no violations are found, shall give final approval.

This statute is one of two key provisions of the bill. The language clearly empowers the homeowner and/or pool contractor with the authority to choose which of the 7 safety devices to install. There is nothing in this statute which provides discretion to the local public entity or the building inspector to decide which safety devices to accept, mandate, or disallow. Nor is there any language which would permit a city or county to divide the 7 safety devices into two or more categories and then require a pool builder to choose one safety device from each of the categories.

Prior to the 2017 amendments to this Act, Section 115925 of the Health & Safety Code provided that the above section did not apply to:

1. Public swimming pools.
2. Hot tubs or spas with locking safety covers that comply with the American Society for Testing and Materials (ASTM F1346).
3. Any 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.
4. An apartment complex, or any residential setting other than a single-family home.

As previously indicated, the compromise CPSA negotiated relative to SB 442 if Subsection (c) of the Act be repealed. This compromise eliminated the authority of local public entities to enforce ordinances that are different or more stringent than state law.

California’s Pool Safety Act empowers the builder and/or homeowner to choose from the 7 specified safety devices and does not authorize the building inspector or local public entity to change or interpret that law differently. Lastly, SB 442 establishes one statewide standard for swimming pool safety devices.