On October 11, 2017 California Governor Jerry Brown signed into law SB 442. The bill is known as the Pool Safety Act. This law took effect January 01, 2018.
This means that anytime a home with a pool and/or hot tub/spa is sold, and a home inspection is performed on that home, a Pool Drowning Prevention Device/Safety Inspection MUST be performed by the home inspector to comply with the changes to California Business and Professions Code (2018). Our inspections & reports are in full compliance with the revised standard as of 01/15/18.
This is a regular full “Pool Inspection” as a value added bonus for our clients.
This law revision (B&P Code 7195c) now states: “In connection with the transfer, as defined in subdivision (e), of real property with a swimming pool or spa, an appropriate inspection shall include a noninvasive physical examination of the pool or spa and dwelling for the purposes of identifying” the safety features present.” It goes on to state “in a dwelling with a pool or spa, the report shall identify which of any of the seven drowning prevention safety features listed in sub division (a) of section 115922 of the Health and Safety Code the pool or spa is equipped with and shall specifically state if the pool or spa has fewer than two of the listed drowning prevention safety features.”
I have prepared a PowerPoint presentation which is available for Brokers/Agents as a 10-15 minute presentation for your office to provide more information. Please drop me an email if you would like me to schedule a time to present the information to your office. firstname.lastname@example.org
By the way, this bill is very similar to one, which the governor vetoed during the previous legislative session. His stated reason for the veto at that time was that “pool safety is the primary responsibility of the parents”. Apparently he no longer feels that this is the case… Since last year?
The Reason For The Bill
“According to both federal Centers for Disease Control and Prevention’s National Center for Injury Prevention and Control and the State Department of Public Health’s EpiCenter data, drowning is the second leading cause of death for California children one to four years of age inclusive. EpiCenter data shows that between the years 2010 and 2014 more than 160 children one to four years of age, inclusive, suffered fatal drownings, with the majority of the incidents involving residential pools, and between the years 2010 and 2015 more than 740 children one to four years of age, inclusive, were hospitalized after suffering a near drowning incident with the leading cause of hospitalization being brain injury due to the lack of oxygen, also known as asphyxiation.”
The bill goes on to say,
“Additional children suffer near drowning incidents and survive, but many of those children suffer irreversible brain injuries, which can lead to lifelong learning deficiencies that impact not only the affected child and his or her family, but also the resources and moneys available to California’s health care system, regional centers, and special education school programs. The State Department of Developmental Services reported that as of December 2016 the agency was providing care for more than 755 near-drowning victims with severe brain damage resulting from the near drowning.”
The legislature also finds and declares:
“Close parental supervision of children with access to swimming pools is essential to providing pool safety for children. Barriers, such as those required pursuant to section 115922 of the Health and Safety Code, can help deter young children from gaining unsupervised access to pools.”*1
CREIA (California Real Estate Inspection Association) produced a SB-442 White Paper outlining some of their perspectives and proposed amendments to the bill, here are some of them:
1. The bill will only effect a fraction of residential pools in California. 2. Home inspectors are not certified or capable of validating that safety provisions are compliant with ASTM standards. 3. Home inspectors cannot verify that pool barriers are properly installed or that pool alarms function properly. 4. Home inspectors identify items, as they exist at the time of the inspection. 5. A prudent home inspector will defer specific evaluation of safety devices to a qualified professional. 6. Each home inspector will need to secure their own copy of the various ASTM Standards to find out what standards they are expected to adhere to. 7. Inspection fees will increase by as much as 30%. 8. Insurance cost for home inspectors will increase. 9. Home owners should provide all appropriate disclosures and documentations related to the pool and pool safety provisions. 10. THERE IS NO REQUIREMENT TO MAKE ANY SAFETY REPAIRS
My thoughts regarding these changes
The nature of our inspection
Our inspection of pool safety features is not dissimilar from our inspection of other components & systems of the home. Bus & Prof Code 7195 (a)(1) states that a “Home inspection is a noninvasive, physical examination… of the mechanical, electrical, or plumbing systems or the structural and essential components of a residential dwelling of 1 to 4 units designed to identify material defects in those systems, structures, and components.”
“Section 7195(a)(2) states, “In connection with the transfer, as defined in subdivision (e), of real property with a swimming pool or spa, an appropriate inspection shall include a noninvasive physical examination of the pool or spa and dwelling for the purposes of identifying” the safety features present.
“Our inspection of the safety features is to be “appropriate.” Merriam-Webster defines “appropriate” as “especially suitable or compatible: fitting.” The task of our inspection if further defined to be a “noninvasive physical examination.” Many of the safety features cannot be verified by a non-invasive physical examination. (No one would not think it appropriate to get two adults and one child to walk out onto a pool cover to make sure it meets the 485 lb. (220.0 kg) static load test required by ASTM 1346.)” *1
Changes required of our Inspection Report. 7195 (c) states “A ‘home inspection report’ is a written report…(that) clearly describes and identifies the inspected systems, structures, or components of the dwelling, any material defects identified, and any recommendations regarding the conditions observed or recommendations for evaluation by appropriate persons.” It goes on to state, “in a dwelling with a pool or spa, the report shall identify which of any of the seven drowning prevention safety features listed in sub division (a) of section 115922 of the Health and Safety Code the pool or spa is equipped with and shall specifically state if the pool or spa has fewer than two of the listed drowning prevention safety features.”
“Our “appropriate,” “noninvasive physical examination” observations of the pool safety features are to be a part of the “home inspection report” in which we describe and identify conditions and provide recommendations for evaluation by appropriate persons. Our standard of care is not that of a trained and qualified ASTM professional. Our standard of care is that of a reasonably prudent home inspector (7196). To be sure, we need to be careful and diligent in our inspection, our standard of care requires it. When we see a foundation deficiency, we do not play engineer. We recommend further evaluation by a qualified and registered engineer and that appropriate repairs be made. When we see a damaged/deficient breaker in a sub-panel, we do not play electrician. We recommend further evaluation and repair by a qualified and licensed electrician. Inspection of pool safety features is no different.” *1
What Does The Bill Require
The bill requires:
1. When a single family residence with a pool (see definitions below) is transferred and a home inspection is performed on the home, the home inspection report shall identify which, if any, of seven specific drowning prevention safety features are present. Those safety features are defined in section 115922 of the Health & Safety Code. 2. The home inspection report shall specifically state if the pool or spa has fewer than two of the listed drowning prevention safety features.
Applicable Definitions (Health and Safety Code 115921)
Section 11591 defines terms related to the requirements of the Bill.
“Swimming pool” or “pool” means any structure intended for swimming or recreational bathing that contains water over 18 inches deep. “Swimming pool” includes in-ground and above-ground structures and includes, but is not limited to, hot tubs, spas, portable spas, and non-portable wading pools. “Public swimming pool” means a swimming pool operated for the use of the general public with or without charge, or for the use of the members and guests of a private club. Public swimming pool does not include a swimming pool located on the grounds of a private single-family home. “Enclosure” means a fence, wall, or other barrier that isolates a swimming pool from access to the home. “Approved safety pool cover” means a manually or power-operated safety pool cover that meets all of the performance standards of the American Society for Testing and Materials (ASTM), in compliance with standard F1346-91. “Exit alarms” means devices that make audible, continuous alarm sounds when any door or window, that permits access from the residence to the pool area that is without any intervening enclosure, is opened or is left ajar. Exit alarms may be battery operated or may be connected to the electrical wiring of the building.
*1 Source: CREIA
*In connection with the transfer, as defined in subdivision (e), of real property with a swimming pool or spa