Over the years we have been approached by Associations who believe they may have a registered sex offender residing within their community. By “registered sex offender” we generally mean a person who, because of past involvement with the criminal justice system for offenses of a sexual nature, is required by law to register with the authorities and provide certain information as to his or her whereabouts.  The Association may become aware of this person’s presence by word of mouth; however, in certain cases, information about the person is posted in the area. In any event, when the Association becomes aware of the presence of a registered sex offender, and turns to us for advice, the two questions typically asked are:

          1.  Is it true? That is, how can we verify that we have a sex offender living in our community? and

          2.  If it is true, now what?

The very fact that an Association becomes aware of a sex offender’s presence in the community in the first place is likely the result of Pennsylvania’s “Megan’s Law”, which requires registration and community notification of convicted sex offenders.

The first “Megan’s Law” was passed by New Jersey in 1994 after the tragic circumstances involving seven-year-old Megan Kanka.  Other states, including Pennsylvania, followed suit shortly thereafter, passing their own versions of Megan’s Law.  The centerpiece of Pennsylvania's Megan's Law is the requirement that the Pennsylvania State Police create and maintain a registry of persons who have either been convicted of, entered a plea of guilty to, or have been adjudicated delinquent of, certain sexual offenses either in Pennsylvania or in another jurisdiction and reside, work and/or attend school in Pennsylvania.  The registry of such persons is found on the Megan’s Law portion of the Pennsylvania State Police website, the web address of which is http://www.pameganslaw.state.pa.us. This website contains a useful search tool, as well as, details pertaining to individual offenders.

With the above website in mind, Associations now have the tool to verify whether a registered person is living in their community.  We now turn to the issue of what, if anything, should the Association do.  From a purely legal perspective, a registered sex offender has served his or her court-mandated sentence and has been released from custody.  In fact, any visitor to the Pennsylvania State Police Megan’s Law website noted above is presented with a warning stating that any person who uses the information found on the website to threaten, intimidate or harass a reporting person, or his or her family, or who otherwise misuses this information, may be subject to criminal prosecution or civil liability.  While our advice to Associations depends on the specific facts of each situation, generally speaking, the mere presence of a registered sex offender living in a community with no other negative interaction does not require any action from the Association’s Board of Directors.  Again, the facts of each matter and the Board’s specific concerns must be evaluated on a case by case basis.

If you have any questions or concerns regarding the above, please do not hesitate to contact our office as we would be happy to review your matter and advise you accordingly.

Automated external defibrillators (AEDs) are now found in a rapidly growing number of locations for use by non-healthcare professionals. AEDs are small devices which are meant to help treat victims of sudden cardiac arrest - one of the leading causes of adult deaths in the United States.

Should your Association consider having an AED available for its pool area or clubhouse fitness center?

Quick access to an AED can save lives and, as a result, laws mandating their installation in public venues have become more common. There is currently no law in Pennsylvania that mandates the installation and/or placement of an AED in private buildings, health clubs, private pools or residential communities. Because of their benefits, however, there is the argument that AEDs are the right thing to do for the Association notwithstanding the potential for a lawsuit. If your Association is considering acquiring an AED, there are certain requirements that the Association must meet in order to avoid liability for its potential failure or misuse.

The Cardiac Arrest Survival Act, 42 U.S.C. §§ 238p and 238q, provides AED operators with conditional Good Samaritan legal liability immunity for any harm resulting from the use or attempted use of an AED. An Association would receive immunity if it follows the below identified guidelines:

• Properly notifying local emergency medical service agencies of the presence and location of the acquired AED(s);
• Properly maintaining and testing the AED(s); and
• Providing appropriate training to expected AED users.

Similarly, the Pennsylvania AED Good Samaritan Act, 42 Pa.C.S.A. § 8331.2, provides civil immunity for trained users of AEDs and requires that "expected users shall complete training in the use of an AED . . . .", 42 Pa.C.S. §§ 8331.2(a), (c). Pursuant to the AED Good Samaritan Act, an Association would receive similar immunity only if the Association:

• Ensures that expected AED users receive training from the American National Red Cross or the American Heart Association or through an equivalent course of instruction approved by the Department of Health; and
• Maintains and tests the AED according to the manufacturer's operational guidelines; and
• Provides instruction requiring the user of an AED to utilize available means to immediately contact and activate the emergency medical services system; and
• Assures that any appropriate data or information is made available to emergency medical services personnel or other health care providers as requested.

To date, there are relatively few lawsuits that have arisen directly involving AEDs. Associations considering acquiring an AED should design and maintain an AED program as a way to manage liability risk. We encourage you to discuss this issue with legal counsel in order to avoid potential future litigation.

The weather is finally changing.  The landscapers are doing a great job and the property looks fantastic.  You are working hard and are on target to have the pool open for Memorial Day.  Life is good!

Then you overhear one of your coworkers talking about a dispute they had at their property last year concerning the pool. You learned that the Board had passed a rule prohibiting children under a certain age from using the pool. Several families within the community with young children said the rule was illegal and discriminated against families with children. The Board countered that the purpose of the rule was for safety reasons and to keep children who are not potty trained out of the pool.

Being proactive, you go and review the policies and rules for all of your communities with pools and learn that many of them have no policy regarding this issue or have similar rules prohibiting children under a certain age. You are concerned that your community may face a similar problem this summer. Now that you think of it, you remember hearing something about a recent law that was passed on another pool related issue. Something about assuring that the pool drains comply with certain safety requirements.

It is amazing how quickly your "to do" list can grow. If one or more of your communities has a swimming pool, we recommend that the Board conduct a careful review of the rules and policies in place pertaining to the use of the pool. Swimming is a wonderful activity, but it is not without risks. We recommend you have your association's legal counsel review its policies and procedures to maximize the use and enjoyment of the pool while minimizing liability exposure to the association.

Should you have any questions regarding your association's policies pertaining to pools or other recreational activities, please do not hesitate to contact us at your convenience.

Swimming pools are certainly popular with property owners in condominium and homeowners' associations - especially those with small children. However, the tragedy of a preventable drowning death and the resulting civil liability for such an event could have a devastating impact on a community.  Condominium and homeowners' association boards should ensure that their pools and spas are safe before allowing the summer fun to start.  This article presents some essential practices that may keep you out of legal trouble.

Condominium and homeowners' associations that have a pool or spa should have a process in place to evaluate whether they are in compliance with recently enacted federal law relating to pools and spas, as well as municipal ordinances and the Association's rules and regulations which may set additional standards.

The Virginia Graeme Baker Pool and Spa Safety Act (the "Act") was enacted by Congress and signed by the President in late 2007.  The goal of this legislation was to improve pool and spa safety by reducing the risk that powerful suction could trap a person underwater.  The Act applies to all "public pools and spas" which term is defined by the Act to include pools and spas that are open exclusively to residents of residential real estate developments or other multi-family residential areas.  Condominium and homeowners' associations are included within this general definition and, therefore, must comply with the Act's provisions.

The Act requires the installation of certain types of anti-entrapment drains and/or devices over pool and spa drains.  The law also requires barriers to protect small children from gaining unsupervised access to a pool or spa.  Seasonal pools and spas that are currently closed must be in compliance with the Act on the day that they reopen in 2009.  Municipalities may also set their own standards, including chemical guidelines, inspections, record keeping, and equipment and fencing requirements.

A thorough inspection of the pool, the surrounding areas and all pool equipment should be done before opening each year and a record should be made and retained of that inspection.  In order to deal with the myriad of legal and regulatory requirements relating to pools and spas, the Association may want to appoint a pool committee to be responsible for reviewing and updating the Association's rules, rule distribution, administering periodic inspections and overseeing the pool contractor.  We recommend having a manual that dictates the responsibilities of the pool committee and/or board member liaison to the pool contractor.  The Association should also consult with legal counsel periodically to ensure that their rules comply with the Fair Housing Act requirements relative to protected classes, such as handicapped persons or familial status.

Following these guidelines will hopefully lead to a safer and fun-filled summer.