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SB-736 Public safety: pools and spas: drowning prevention: home inspectors. (2021-2022)

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Date Published: 02/19/2021 09:00 PM
SB736:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Senate Bill
No. 736

Introduced by Senator Newman

February 19, 2021

An act to amend Sections 7195 and 7199.5 of, and to add Section 7196.5 to, the Business and Professions Code, to amend Sections 115921, 115922, 115923, and 115925 of, and to add Section 115930 to, the Health and Safety Code, to amend Section 25401.7 of the Public Resources Code, and to amend Section 10632 of the Water Code, relating to public safety.


LEGISLATIVE COUNSEL'S DIGEST


SB 736, as introduced, Newman. Public safety: pools and spas: drowning prevention: home inspectors.
(1) Under the Swimming Pool Safety Act, upon the issuance of a building permit for construction of a new swimming pool or spa, or the remodeling of an existing pool or spa, at a private, single-family home, the pool or spa is required to be equipped with at least 2 of 7 drowning prevention safety features. The act requires the local building code official to inspect and approve the drowning prevention safety devices before the issuance of a final approval for the completion of permitted construction or remodeling work.
This bill would encourage the use of an isolation fence or removable isolation mesh fencing, as specified, to meet these requirements, and would specify that these requirements are not met by an exit alarm and a self-closing, self-latching device, as defined, used on the same door or on 2 separate doors that provide access to the swimming pool or spa. The bill would require these requirements to apply equally to all local jurisdictions, and would prohibit a local jurisdiction from imposing different or stricter requirements. Because this bill would impose requirements on local officials, this bill would impose a state-mandated local program.
(2) Existing law, as part of the definition of home inspection for the transfer of real property, specifies that an appropriate inspection of real property with a swimming pool or spa includes noninvasive physical examination of the pool or spa and dwelling for the purpose of identifying which, if any, of the 7 specified drowning prevention safety features the pool or spa is equipped with. Existing law also requires the information to be included in the home inspection report, as specified.
This bill would require, for a home inspection of real property with a swimming pool or spa, in connection with a prelisting inspection or transfer, as defined, that a home inspector be certified by a professional association or entity as having completed a continuing education training module on drowning prevention, as described below. The bill would require that the examination of the pool or spa and dwelling during the home inspection be for the additional purposes of determining whether a drowning prevention safety feature is in good condition, as described, whether it is approved by ASTM International or meets the description of the safety features required by the Swimming Pool Safety Act, and whether the only 2 safety features are an exit alarm and self-closing, self-latching device used on the same door or on 2 separate doors, as described above. The bill would require, if specified conditions are present, the home inspector to provide the relevant section of the home inspection report to the buyer’s home insurance or mortgage company upon the company’s request, made at the company’s discretion.
(3) Existing law requires certain building officials to obtain certification from a recognized state, national, or international association and to complete a minimum of 45 hours of continuing education for every 3-year period.
This bill would require, no later than January 1, 2023, an association or other entity that certifies home inspectors or building officials to develop a continuing education training module on drowning prevention that provides instruction on specified topics. The bill would require, commencing on January 1, 2024, a building official and home inspector to complete the training module in order for a building official to maintain certification and for a home inspector to maintain the certification required to conduct a home inspection for real property with a swimming pool or spa. Because this bill would impose requirements on local officials, this bill would impose a state-mandated local program.
(4) This bill would also make conforming changes.
(5) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 7195 of the Business and Professions Code is amended to read:

7195.
 For purposes of this chapter, the following definitions apply:
(a) (1) “Home inspection” is means a noninvasive, physical examination, performed for a fee in connection with a transfer, as defined in subdivision (e), of real property, of the mechanical, electrical, or plumbing systems or the structural and essential components of a residential dwelling of one to four units designed to identify material defects in those systems, structures, and components. “Home inspection” includes any consultation regarding the property that is represented to be a home inspection or any confusingly similar term.

(2)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 purpose of identifying which, if any, of the seven drowning prevention safety features listed in subdivision (a) of Section 115922 of the Health and Safety Code the pool or spa is equipped.

(3)

(2) “Home inspection,” if requested by the client, may include an inspection of energy efficiency. Energy efficiency items to be inspected may include the following:
(A) A noninvasive inspection of insulation R-values in attics, roofs, walls, floors, and ducts.
(B) The number of window glass panes and frame types.
(C) The heating and cooling equipment and water heating systems.
(D) The age and fuel type of major appliances.
(E) The exhaust and cooling fans.
(F) The type of thermostat and other systems.
(G) The general integrity and potential leakage areas of walls, window areas, doors, and duct systems.
(H) The solar control efficiency of existing windows.

(b)A “material defect” is a condition that significantly affects the value, desirability, habitability, or safety of the dwelling. Style or aesthetics shall not be considered in determining whether a system, structure, or component is defective.

(c)A “home inspection report” is

(b) “Home inspection report” means a written report prepared for a fee and issued after a home inspection. The report 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. In a dwelling with a pool or spa, the report shall identify which, if any, of the seven drowning prevention safety features listed in subdivision (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.

(d)A “home inspector” is any

(c) “Home inspector” means an individual who performs a home inspection.
(d) “Material defect” means a condition that significantly affects the value, desirability, habitability, or safety of the dwelling. Style or aesthetics shall not be considered in determining whether a system, structure, or component is defective.
(e) “Prelisting inspection” means a home inspection of real property or residential stock cooperative, improved with or consisting of one to four dwelling units, before listing for sale.

(e)

(f) “Transfer” is means a transfer by sale, exchange, installment land sales contract, as defined in Section 2985 of the Civil Code, lease with an option to purchase, any other option to purchase, or ground lease coupled with improvements, of real property or residential stock cooperative, improved with or consisting of not less than one nor more than one to four dwelling units.

SEC. 2.

 Section 7196.5 is added to the Business and Professions Code, to read:

7196.5.
 For a home inspection of real property with a swimming pool or spa, in connection with a prelisting inspection or transfer, the following requirements apply:
(a) A home inspection shall be conducted only by a home inspector who is certified by a professional association, organization, company, or entity that provides certification to home inspectors as having completed the continuing education training module on drowning prevention pursuant to Section 115930 of the Health and Safety Code.
(b) A home inspection shall include a noninvasive physical examination of the pool or spa and dwelling for all of the following purposes:
(1) To identify which, if any, of the seven drowning prevention safety features listed in subdivision (a) of Section 115922 of the Health and Safety Code the pool or spa is equipped with, and whether there are only two safety features as described in subdivision (b) of Section 115922 of the Health and Safety Code.
(2) To determine, through a visual observation or, if appropriate, auditory observation, whether a drowning prevention safety feature is in good condition, as follows:
(A) The panels of an isolation fence or removable mesh fencing are in place and are not damaged.
(B) A self-closing, self-latching gate associated with an isolation fence or removable mesh fencing is in good repair and working.
(C) An approved pool cover is in good repair and can be opened and closed by its automated mechanics.
(D) An exit alarm makes an alarm noise or verbal warning when a door is opened without deactivating the alarm.
(E) A self-closing, self-latching device closes a door and automatically latches the door.
(F) An alarm placed in a pool or spa is in good repair and sounds when it is activated or turned on and the water in the pool or spa is disturbed.
(3) To determine whether a drowning prevention safety feature has a label, receipt, instruction manual, project payment receipt, if installed by a professional, contract, or other documentation, showing that the safety feature is approved by ASTM International or meets the description required by subdivision (a) of Section 115922 of the Health and Safety Code. The home inspector is not required to test the safety feature to determine whether it meets ASTM International standards.
(c) A home inspection report shall include all of the information from the home inspection, as described in subdivision (b).
(d) (1) A home inspector shall provide the section of the home inspection report to the buyer, a home insurance company providing insurance coverage of the home for the buyer, or a loan mortgage company providing financing of the transfer for the buyer, upon the company’s request which may be made in its discretion, if any of the following conditions are met:
(A) A pool or spa has fewer than two of the listed drowning prevention safety features listed in subdivision (a) of Section 115922 of the Health and Safety Code.
(B) There are only two drowning prevention safety features as described in subdivision (b) of Section 115922 of the Health and Safety Code.
(C) A drowning prevention safety feature is not in good condition, as described in paragraph (2) of subdivision (b).
(D) A drowning prevention safety feature is not approved by ASTM International or does not meet the description required by subdivision (a) of Section 115922 of the Health and Safety Code.
(2) A home inspector, home insurance company, or loan mortgage company shall not incur any increased liability or be liable for complying with this subdivision. However, this paragraph does not preclude liability pursuant to any other law.

SEC. 3.

 Section 7199.5 of the Business and Professions Code is amended to read:

7199.5.
 (a) All home inspections, including those defined in paragraph (1) of subdivision (a) of Section 7195, may, if requested by the client, be accompanied by a Home Energy Rating System (HERS) California home energy audit pursuant to regulations adopted by the Energy Commission in compliance with Section 25942 of the Public Resources Code.
(b) If the client requests a HERS California home energy audit, the HERS California home inspection report accompanying any home inspection report defined in subdivision (c) of Section 7195 shall comply with the standards and requirements established by the Energy Commission for HERS California home energy audits as specified in Article 8 (commencing with Section 1670) of Chapter 4 of Division 2 of Title 20 of the California Code of Regulations, implementing the California Home Energy Rating System Program.

SEC. 4.

 Section 115921 of the Health and Safety Code is amended to read:

115921.
 As used in this article article, the following terms have the following meanings:

(a)“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 aboveground structures and includes, but is not limited to, hot tubs, spas, portable spas, and nonportable wading pools.

(b)“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.

(c)“Enclosure” means a fence, wall, or other barrier that isolates a swimming pool from access to the home.

(d)“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.

(e)“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.

(f)

(a) “ANSI/APSP performance standard” means a standard that is accredited by the American National Standards Institute (ANSI) and published by the Association of Pool and Spa Professionals (APSP).
(b) “Approved safety pool cover” means a manually or power-operated safety pool cover that meets all of the performance standards ASTM International, in compliance with standard F1346-91.
(c) “Exit alarm” means a device that makes audible, continuous alarm sounds when a door or window, that permits access from the residence to the pool area that is without an intervening isolation fence, is opened or is left ajar. 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.” The exit alarm may be battery operated or may be connected to the electrical wiring of the building.
(d) “Isolation fence” means a fence, wall, or other barrier that isolates a swimming pool from access to the home.
(e) “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.

(g)

(f) “Suction outlet” means a fitting or fixture typically located at the bottom or on the sides of a swimming pool that conducts water to a recirculating pump.
(g) “Swimming pool” or “pool” means a structure intended for swimming or recreational bathing that contains water over 18 inches deep. “Swimming pool” includes in-ground and aboveground structures and includes, but is not limited to, hot tubs, spas, portable spas, and nonportable wading pools.

SEC. 5.

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

115922.
 (a) Except as provided in Section 115925, 115925 and subject to subdivision (c), 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: features described in paragraphs (1) to (7), as chosen by the homeowner or pool builder. The Legislature finds and declares that an isolation fence, as described in paragraph (1), and removable isolation mesh fencing, as described in paragraph (2), are the most effective drowning prevention safety features for preventing a child from accessing a pool or spa unsupervised, according to the American Academy of Pediatrics, and encourages the use of these safety features to meet the requirements of this subdivision.
(1) An enclosure isolation fence that meets the requirements of Section 115923 and isolates the swimming pool or spa from the private single-family home.
(2) Removable isolation mesh fencing that meets American Society for Testing and Materials (ASTM) ASTM International 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 60 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 International 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 International or the American Society of Mechanical Engineers (ASME).
(b) Subdivision (a) is not satisfied by the use of an exit alarm, as described in paragraph (4) of subdivision (a), and a self-closing, self-latching device, as described in paragraph (5) of subdivision (a), on the same door or on two separate doors that provide access to the swimming pool or spa.

(b)

(c) 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 safety features required by this section and, if no violations are found, shall give final approval.
(d) (1) The Legislature finds and declares that this section addresses a matter of statewide concern. This section shall therefore apply equally to all local jurisdictions in this state, including charter cities, charter counties, and charter cities and counties.
(2) A local jurisdiction shall not impose requirements that are different or stricter than the requirements in this section.

SEC. 6.

 Section 115923 of the Health and Safety Code is amended to read:

115923.
 An enclosure An isolation fence shall have all of the following characteristics:
(a)  Any access gates through the enclosure isolation fence open away from the swimming pool, and are self-closing with a self-latching device placed no lower than 60 inches above the ground.
(b)  A minimum height of 60 inches.
(c)  A maximum vertical clearance from the ground to the bottom of the enclosure isolation fence of two inches.
(d)  Gaps or voids, if any, do not allow passage of a sphere equal to or greater than four inches in diameter.
(e)  An outside surface free of protrusions, cavities, or other physical characteristics that would serve as handholds or footholds that could enable a child below the age of five years to climb over.

SEC. 7.

 Section 115925 of the Health and Safety Code is amended to read:

115925.
 The requirements of this article do not apply to any of the following:
(a) Public swimming pools.
(b) Hot tubs or spas with locking safety covers that comply with the American Society for Testing and Materials (ASTM F1346). ASTM International Standard F1346.
(c) An apartment complex, or any residential setting other than a single-family home.

SEC. 8.

 Section 115930 is added to the Health and Safety Code, to read:

115930.
 (a) For purposes of this section, the following definitions apply:
(1) “Building code official” has the same meaning as defined in Section 18949.27.
(2) “Home inspector” has the same meaning as defined in Section 7195 of the Business and Professions Code.
(b) No later than January 1, 2023, a professional association, organization, company, or entity that provides certification to home inspectors or to building code officials, pursuant to Section 18949.28, shall develop a continuing education training module on drowning prevention that provides instruction on all of the following subjects:
(1) The definition of drowning, which means water submersion resulting in hypoxia of the brain.
(2) Drowning prevention strategies, as identified by state or national drowning prevention entities or organizations with drowning prevention expertise, such as the American Academy of Pediatrics, federal Centers for Disease Control and Prevention, Safe Kids Worldwide, and the Drowning Prevention Foundation. These strategies shall include, but are not limited to, all of the following:
(A) Water safety concepts, such as the Safer 3 initiative by the Safer 3 Water Safety Foundation.
(B) Poor barrier concepts in accordance with the Swimming Pool Safety Act (Article 2.5 (commencing with Section 115920)).
(C) The importance of drowning prevention and swim instruction for all ages.
(D) The role of lifeguards and life vests.
(E) Concepts in how to conduct rescue.
(F) How to access emergency medical services through the “911” emergency services system.
(G) Cardiopulmonary resuscitation (CPR).
(3) The Swimming Pool Safety Act (Article 2.5 (commencing with Section 115920)).
(c) Commencing on January 1, 2024, a building code official shall complete the continuing education training module developed pursuant to subdivision (b) at least once every three years, as part of the minimum of 45 hours of continuing education required every three-year period by Section 18949.29, in order to maintain certification.
(d) Commencing on January 1, 2024, a home inspector shall complete the continuing education training module developed pursuant to subdivision (b) at least once every three years, in order to maintain the certification required to conduct a home inspection for real property with a swimming pool or spa, in connection with a prelisting inspection or transfer, pursuant to Section 7196.5 of the Business and Professions Code.

SEC. 9.

 Section 25401.7 of the Public Resources Code is amended to read:

25401.7.
 At the time a single-family residential dwelling is sold, a buyer or seller may request a home inspection, as defined in subdivision (a) of Section 7195 of the Business and Professions Code, and a home inspector, as defined in subdivision (d) of Section 7195 of the Business and Professions Code, shall provide, contact information for one or more of the following entities that provide home energy information:
(a) A nonprofit organization.
(b) A provider to the residential dwelling of electrical service, or gas service, or both.
(c) A government agency, including, but not limited to, the commission.

SEC. 10.

 Section 10632 of the Water Code is amended to read:

10632.
 (a) Every urban water supplier shall prepare and adopt a water shortage contingency plan as part of its urban water management plan that consists of each of the following elements:
(1) The analysis of water supply reliability conducted pursuant to Section 10635.
(2) The procedures used in conducting an annual water supply and demand assessment that include, at a minimum, both of the following:
(A) The written decisionmaking process that an urban water supplier will use each year to determine its water supply reliability.
(B) The key data inputs and assessment methodology used to evaluate the urban water supplier’s water supply reliability for the current year and one dry year, including all of the following:
(i) Current year unconstrained demand, considering weather, growth, and other influencing factors, such as policies to manage current supplies to meet demand objectives in future years, as applicable.
(ii) Current year available supply, considering hydrological and regulatory conditions in the current year and one dry year. The annual supply and demand assessment may consider more than one dry year solely at the discretion of the urban water supplier.
(iii) Existing infrastructure capabilities and plausible constraints.
(iv) A defined set of locally applicable evaluation criteria that are consistently relied upon for each annual water supply and demand assessment.
(v) A description and quantification of each source of water supply.
(3) (A) Six standard water shortage levels corresponding to progressive ranges of up to 10, 20, 30, 40, and 50 percent shortages and greater than 50 percent shortage. Urban water suppliers shall define these shortage levels based on the suppliers’ water supply conditions, including percentage reductions in water supply, changes in groundwater levels, changes in surface elevation or level of subsidence, or other changes in hydrological or other local conditions indicative of the water supply available for use. Shortage levels shall also apply to catastrophic interruption of water supplies, including, but not limited to, a regional power outage, an earthquake, and other potential emergency events.
(B) An urban water supplier with an existing water shortage contingency plan that uses different water shortage levels may comply with the requirement in subparagraph (A) by developing and including a cross-reference relating its existing categories to the six standard water shortage levels.
(4) Shortage response actions that align with the defined shortage levels and include, at a minimum, all of the following:
(A) Locally appropriate supply augmentation actions.
(B) Locally appropriate demand reduction actions to adequately respond to shortages.
(C) Locally appropriate operational changes.
(D) Additional, mandatory prohibitions against specific water use practices that are in addition to state-mandated prohibitions and appropriate to the local conditions.
(E) For each action, an estimate of the extent to which the gap between supplies and demand will be reduced by implementation of the action.
(5) Communication protocols and procedures to inform customers, the public, interested parties, and local, regional, and state governments, regarding, at a minimum, all of the following:
(A) Any current or predicted shortages as determined by the annual water supply and demand assessment described pursuant to Section 10632.1.
(B) Any shortage response actions triggered or anticipated to be triggered by the annual water supply and demand assessment described pursuant to Section 10632.1.
(C) Any other relevant communications.
(6) For an urban retail water supplier, customer compliance, enforcement, appeal, and exemption procedures for triggered shortage response actions as determined pursuant to Section 10632.2.
(7) (A) A description of the legal authorities that empower the urban water supplier to implement and enforce its shortage response actions specified in paragraph (4) that may include, but are not limited to, statutory authorities, ordinances, resolutions, and contract provisions.
(B) A statement that an urban water supplier shall declare a water shortage emergency in accordance with Chapter 3 (commencing with Section 350) of Division 1.
(C) A statement that an urban water supplier shall coordinate with any city or county within which it provides water supply services for the possible proclamation of a local emergency, as defined in Section 8558 of the Government Code.
(8) A description of the financial consequences of, and responses for, drought conditions, including, but not limited to, all of the following:
(A) A description of potential revenue reductions and expense increases associated with activated shortage response actions described in paragraph (4).
(B) A description of mitigation actions needed to address revenue reductions and expense increases associated with activated shortage response actions described in paragraph (4).
(C) A description of the cost of compliance with Chapter 3.3 (commencing with Section 365) of Division 1.
(9) For an urban retail water supplier, monitoring and reporting requirements and procedures that ensure appropriate data is collected, tracked, and analyzed for purposes of monitoring customer compliance and to meet state reporting requirements.
(10) Reevaluation and improvement procedures for systematically monitoring and evaluating the functionality of the water shortage contingency plan in order to ensure shortage risk tolerance is adequate and appropriate water shortage mitigation strategies are implemented as needed.
(b) For purposes of developing the water shortage contingency plan pursuant to subdivision (a), an urban water supplier shall analyze and define water features that are artificially supplied with water, including ponds, lakes, waterfalls, and fountains, separately from swimming pools and spas, as defined in subdivision (a) of Section 115921 of the Health and Safety Code.
(c) The urban water supplier shall make available the water shortage contingency plan prepared pursuant to this article to its customers and any city or county within which it provides water supplies no later than 30 days after adoption of the water shortage contingency plan.

SEC. 11.

 If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.