80R2907 MSE-D

By: Van de Putte S.B. No. 971

A BILL TO BE ENTITLED

AN ACT

relating to swimming pool safety; providing a civil penalty.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Subtitle A, Title 9, Health and Safety Code, is amended by adding Chapter 761 to read as follows: CHAPTER 761. POOL SAFETY AT SINGLE-FAMILY DWELLINGS

Sec. 761.001. SHORT TITLE. This chapter may be cited as the Drowning Prevention and Swimming Pool Safety Act.

Sec. 761.002. DEFINITIONS. In this chapter:

(1) "Manual safety cover" means a barrier that is not motor-powered and:

(A) completely covers the water area of the pool; and

(B) conforms to the ASTM International Standard F1346-91 "Standard Performance Specification for Safety Covers and Labeling Requirements for All Covers for Swimming Pools, Spas and Hot Tubs," as it existed on January 1, 2007.

(2) "Pool" means a permanent swimming pool, permanent wading or reflection pool, or permanent hot tub or spa over 18 inches deep, located at ground level, aboveground, belowground, or indoors. The term does not include a bay, lake, pond, bayou, river, creek, stream, spring, reservoir, stock tank, culvert, drainage ditch, detention pond, or other flood or drainage facility.

(3) "Pool yard" means an area that contains a pool.

(4) "Pool yard enclosure" or "enclosure" means a fence, wall, or combination of fences, walls, or gates that completely surround a pool. A pool yard enclosure may also enclose the pool deck, landscaped areas, and other areas beyond the pool.

(5) "Power safety cover" means a motor-powered barrier that:

(A) completely covers the water area of the pool; or

(B) conforms to the ASTM International Standard F1346-91 "Standard Performance Specification for Safety Covers and Labeling Requirements for All Covers for Swimming Pools, Spas and Hot Tubs," as it existed on January 1, 2007.

(6) "Self-closing device" means a device that causes a gate to automatically close without human or electrical power after it has been opened.

(7) "Self-latching device" means a device that causes a gate to automatically latch without human or electrical power when the gate closes.

Sec. 761.003. REQUIRED SAFETY EQUIPMENT. (a) In accordance with rules adopted by the executive commissioner of the Health and Human Services Commission, a person who sells or installs a pool at a single-family dwelling shall provide, with each pool sold or installed for use at a single-family dwelling, the following safety equipment:

(1) a throwing rope that:

(A) is one-fourth inch to three-eighths inch in diameter;

(B) is at least as long as two-thirds the maximum width of the pool; and

(C) is attached to a ring buoy approved as a flotation device by the United States Coast Guard with an outside diameter of 15 to 24 inches;

(2) a reaching pole that is:

(A) light, strong, and non-telescoping;

(B) at least 12 feet long;

(C) constructed of fiberglass or another material that does not conduct electricity; and

(D) attached at one end to a body hook or shepherd's crook with blunted ends;

(3) a pool yard enclosure and gate that comply with the specifications described by Sections 761.006 and 761.007, a power safety cover, or a manual safety cover; and

(4) either:

(A) more than one drain;

(B) one or more unblockable drains; or

(C) no main drain.

(b) If the pool has a main drain, other than an unblockable drain, the main drain must:

(1) be equipped with a drain cover that conforms to the ASME/ANSI Standard A112.19.8M "Suction Fittings for Use in Swimming Pools, Wading Pools, Spas, Hot Tubs, and Whirlpool Bathtub Appliances," as it existed on January 1, 2007; and

(2) have at least one of the following anti-entrapment devices:

(A) a safety vacuum release system, tested by an independent third party, that ceases operation of a pump, reverses the circulation flow, or otherwise provides a vacuum release at a blocked suction outlet and that conforms to:

(i) the ASME/ANSI Standard A112.19.8M "Suction Fittings for Use in Swimming Pools, Wading Pools, Spas, Hot Tubs, and Whirlpool Bathtub Appliances," as it existed on January 1, 2007; or

(ii) the ASTM International Standard F2387 "Standard Specification for Manufactured Safety Vacuum Release Systems for Swimming Pools, Spas and Hot Tubs," as it existed on January 1, 2007;

(B) a suction-limiting vent system with a tamper-resistant atmospheric opening;

(C) a gravity drainage system that uses a collector tank;

(D) an automatic pump shut-off system;

(E) a device or system that disables the drain; or

(F) another system that the executive commissioner determines is effective at preventing the risk of injury or death for children associated with pool drainage systems.

(c) A seller or installer required to comply with this chapter may charge the cost of the required safety equipment to the person purchasing the pool.

(d) A seller or installer is not required to provide the safety equipment required by Subsection (a) if the person purchasing the pool owns safety equipment that complies with this chapter. The person purchasing the pool must submit proof to the seller or installer of the presence of the required safety equipment in accordance with rules adopted by the executive commissioner of the Health and Human Services Commission.

Sec. 761.004. DRAINS. (a) A pool that has a main drain that is not an unblockable drain must be equipped with a drain cover that meets a national safety standard approved by the executive commissioner of the Health and Human Services Commission.

(b) A pool must have one of the following:

(1) more than one drain;

(2) one or more unblockable drains; or

(3) no main drain.

Sec. 761.005. DUTIES OF POOL OWNER. A person who owns a pool shall obtain and maintain the safety equipment required under Section 761.003(a) in accordance with rules adopted by the executive commissioner.

Sec. 761.006. ENCLOSURE FOR POOL YARD. (a) The height of the pool yard enclosure must be at least 48 inches as measured from the ground on the side away from the pool.

(b) Openings under the pool yard enclosure may not allow a sphere four inches in diameter to pass under the pool yard enclosure.

(c) If the pool yard enclosure is constructed with horizontal and vertical members and the distance between the tops of the horizontal members is at least 45 inches, the openings may not allow a sphere four inches in diameter to pass through the enclosure.

(d) If the pool yard enclosure is constructed with horizontal and vertical members and the distance between the tops of the horizontal members is less than 45 inches, the openings may not allow a sphere 1-3/4 inches in diameter to pass through the enclosure.

(e) A pool yard enclosure may not contain:

(1) chain link fencing materials; or

(2) diagonal fencing members that are lower than 49 inches above the ground.

(f) Decorative designs or cutouts on or in the pool yard enclosure may not contain any openings greater than 1-3/4 inches in any direction.

(g) Indentations or protrusions in a solid pool yard enclosure without any openings may not be greater than normal construction tolerances and tooled masonry joints on the side away from the pool.

(h) Permanent equipment or structures may not be constructed or placed in a manner that makes them readily available for climbing from the outside to the inside of the pool yard enclosure.

(i) If a dwelling has a door or window that allows access to the pool without another intervening enclosure, the door or window must be equipped with exit alarms that make audible, continuous alarm sounds when the door or window is opened or left ajar.

(j) If a pool is built on a slope, a pool yard enclosure is not required in those areas around the pool where:

(1) the deck of the pool is at least four feet above grade level;

(2) there are no indentations, handholds, or footholds in the structural walls or supports below the pool or pool deck that could be readily used by a small child to climb to the pool or pool deck; and

(3) any openings under the pool or pool deck that could give access to the pool do not allow a sphere four inches in diameter to pass through for a height of four feet above ground level.

(k) A person who owns a pool with a pool yard enclosure shall reasonably maintain the pool yard enclosure in compliance with this section and shall ensure needed repairs are performed as soon as reasonably possible.

Sec. 761.007. GATES. (a) A gate in a pool yard enclosure as required by Section 761.006 must:

(1) have a self-closing and self-latching device;

(2) have hardware enabling the gate to be locked, at the option of whoever controls the gate, by a built-in lock operated by key, card, or combination or a padlock; and

(3) open outward away from the pool yard.

(b) Except as provided by Subsection (c), a gate latch must be installed so that it is at least 60 inches above the ground, except that it may be installed lower if:

(1) the latch is installed on the pool yard side of the gate only and is at least three inches below the top of the gate; and

(2) the gate or enclosure has no opening greater than one-half inch in any direction within 18 inches from the latch, including the space between the gate and the gate post to which the gate latches.

(c) A gate latch may be located 42 inches or higher above the ground if the gate cannot be opened except by key, card, or combination on both sides of the gate.

(d) A gate is not required to have a self-closing device if:

(1) the dwelling where the pool is located is occupied on a regular basis by a person who is permanently disabled and the person's disability prevents or significantly inhibits the person from opening a gate with a self-closing device;

(2) the gate has a self-latching device when it is manually closed; and

(3) the self-latching device complies with Subsection (b) or (c).

(e) A gate in a pool yard enclosure that allows the entry of a vehicle must comply with the height and design requirements of Subsections (a) through (c) but may open either toward or away from the pool yard, does not have to have hardware enabling the gate to be locked, and is considered to have a self-closing device if the gate closes automatically with electronic power after a vehicle is driven through the gate. The gate is considered to have a self-latching device if the gate is held closed by a device that does not permit the gate to be opened without electronic activation and any electronic activation switch or manual override switch is:

(1) located at least 60 inches above the ground; or

(2) located at least 42 inches above the ground if the switch cannot be operated without a key, card, or combination.

(f) A door or other opening from the dwelling's interior to a pool yard is not subject to the requirements of this section.

Sec. 761.008. ENFORCEMENT. (a) A person who purchases a pool on or after September 1, 2007, from a seller or installer required to comply with this chapter, a governmental entity, or the person's representative may maintain an action against the seller or installer of the pool for knowingly failing to comply with the requirements of this chapter. In that action, the person may obtain:

(1) a court order directing the seller or installer to comply with this chapter; and

(2) a judgment against the seller or installer for actual damages resulting from the failure to comply with the requirements of this chapter.

(b) A seller and installer are jointly and severally liable for damages under this section. Chapter 33, Civil Practice and Remedies Code, does not apply to an action maintained under this section.

Sec. 761.009. CIVIL PENALTY. (a) A person who knowingly violates this chapter is subject to a civil penalty of not less than $2,000 and not more than $5,000 for each violation.

(b) In determining the amount of the civil penalty, the court shall consider:

(1) the person's previous violations;

(2) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation;

(3) whether the health and safety of the public was threatened by the violation;

(4) the demonstrated good faith of the person; and

(5) the amount necessary to deter future violations.

(c) The attorney general or the appropriate district or county attorney, in the name of the state, may bring an action under this section in a district court of Travis County or of a county in which any part of the violation occurs.

(d) A penalty collected under this section by the attorney general shall be deposited in the state treasury to the credit of the general revenue fund. A penalty collected under this section by a district or county attorney shall be deposited to the credit of the general fund of the county in which the suit was heard.

Sec. 761.010. STATEWIDE UNIFORMITY. (a) To ensure uniform and equitable implementation and enforcement throughout this state, this chapter constitutes the whole field of regulation regarding pool safety at single-family dwellings.

(b) This chapter preempts and supersedes a local ordinance, rule, or regulation adopted by a political subdivision of this state pertaining to pool safety at single-family dwellings.

SECTION 2. The heading to Chapter 757, Health and Safety Code, is amended to read as follows:

CHAPTER 757. POOL YARD ENCLOSURES AT CERTAIN DWELLINGS

SECTION 3. (a) Except as provided by Subsection (b) of this section, this Act takes effect January 1, 2008.

(b) Section 761.004, Health and Safety Code, as added by this Act, takes effect January 1, 2009.

(c) Section 761.005, Health and Safety Code, as added by this Act, takes effect January 1, 2012.