Part I – Reopening of Pools and Recreational Facilities

On Monday, Governor DeSantis met with President Trump, prior to announcing his plans for reopening Florida, as citizens of Florida prepare themselves for the “new normal” amidst the COVID-19 pandemic.  While the citizens of the state await Governor DeSantis’ reopening plan, calls for a quicker response from local officials were answered, at least in part, yesterday when Palm Beach County issued Emergency Order 2020-005 (“PBC Emergency Order 5”). The order calls for the reopening of certain public and community recreational facilities effective at 12:01 am on April 29, 2020. 

PBC Emergency Order 5 reopens:

  • Boating and marine activities, including recreational and commercial boating activities;
  • Municipal, public and privately-run golf courses;
  • Public county and municipal parks, and natural areas, with the exception of beach parks;
  • Tennis and outdoor racquet facilities, as well as community pools. 

The reopening of these recreational activities is subject to strict guidelines and conditions, which are set forth in the attachments to PBC Emergency Order 5 and vary depending on the recreational activity.  The reopening of all these recreational activities are subject to compliance with the guidelines from the Center for Disease Control and Prevention (“CDC”).  In addition, Palm Beach County has placed additional restrictions on each category of recreational activity.

Of particular concern for community associations is the conditions the County has placed on reopening tennis courts, outdoor racket courts, and pool facilities.  Specifically, Attachment 5 of PBC Emergency Order 5 provides that “CDC Guidelines, including social distancing guidelines, are adhered to.” Further, only single play is permitted on tennis and racket courts. Congregating on the court or sidelines is prohibited.  Locker room and shower facilities must remain closed.  Restrooms, however, must be opened and “must be cleaned and disinfected regularly throughout the day.”  Soap and water or hand sanitizer and/or disinfectant wipes must be provided in each restroom.

In terms of community pool facilities, again, CDC Guidelines, including social distancing guidelines, must be are adhered to.  Pool capacity must be limited to ensure social distancing in accordance with CDC Guidelines.  Under the CDC Guidelines, individuals must maintain a distance of six (6) feet apart.  Therefore, the burden is on community association boards and managers to calculate the number of residents permitted at the community pool, at any given time, so as to comply with CDC social distancing guidelines.  CDC Guidelines still mandate gatherings be less than 10 people, but depending on the size of your pool area, community boards may have to further reduce the number of people at the pool at one time.  Also, this begs the question of whether to implement temporary rules to limit the time residents may use the tennis, racquet, and particularly the community pool to permit other residents the opportunity to use them.

Like tennis and racquet courts, the same restrictions apply to locker rooms, shower facilities and restrooms.  Attachment 5 to PBC Emergency Order 5 also requires that pool deck seating/lounging must shall be restricted to ensure social distancing in accordance with CDC Guidelines.  Here again, the burden is on community association boards and managers to measure out six (6) feet between pool furniture to comply with CDC social distancing guidelines. What if the individuals are part of the same family?

Finally, per Attachment 5 to PBC Emergency Order 5:

One or more facility staff or management must be present at each facility location to monitor and ensure compliance with the restrictions within this order

This means that if your pool facility is open 8:00 am to 4:00 pm, a community association must have an employee, or its professional management company, provide a person to be at the pool during those hours to “monitor and ensure compliance”. 
 
Practically speaking, how many community associations are in a position to implement these requirements?  For example, does your community have personnel to oversee each facility location?  Is your community prepared to clean and sanitize the restrooms and pool furniture on a regular basis for the foreseeable future while these facilities are used by residents?  What impact will this have on community budgets?

The bottom-line question is, should Palm Beach County community associations reopen their tennis, racquet ball, and pool facilities under the latest order, particularly when the order requires community associations to “ensure compliance”?  We strongly recommend that before Palm Beach County community associations do make the decision to re-open, that boards consult their association legal counsel and professional management companies, if applicable, to confirm their ability to comply with PBC Emergency Order 5. The liability associated with re-opening without being in compliance could be a costly misstep for the Association in the future. 

by Steven R. Braten, Shareholder, Rosenbaum PLLC