“Accidental Child Drownings and Pool Safety Act in Florida.”
Many homeowners in Florida utilize websites like VRBO and AIRBNB to list their properties for short-term rental. There are, however, some serious safety issues related to such properties that have pools which could easily expose the homeowner to liability if a guest is injured or is killed because of accidental drowning.
The laws regulating pools in Florida are mainly categorized as residential or public. This distinction is important since depending upon the pools’ classification, certain laws will and will not apply.
What is a Public Lodging Establishment?
A home listed on Airbnb may be considered a “public lodging establishment” if it is a “vacation rental.” Florida Statute § 509.242 (b) defines a vacation rental as “any unit or group of units in . . . any individually or collectively owned single-family, two-family, three-family, or four-family house or dwelling unit that is also a transient public lodging establishment.” A “transient public lodging establishment” is defined as “any unit . . . dwelling . . . within a single complex of buildings which is rented to guests for periods of at least 30 days or 1 calendar month, whichever is less, or which is advertised or held out to the public as a place regularly rented to guests.” Fla. Stat. Ann. § 509.013 (1).
Many of the home share properties in Florida will likely fall into the classification of a vacation rental given its transient use and its advertisement to the public as a place regularly rented to guests.
Though many of these properties would most likely be classified as a “public lodging establishment,” a short-term vacation rental’s pool would be considered a residential pool; thus, it would be subject to the Residential Swimming Pool Safety Act (“Act”).
A public swimming pool is defined as a pool that may be accessed with or without a fee and includes, but is not limited to, pools operated by public entities or pools which serve camps, churches, daycare centers, group home facilities of eight or more clients, or the cooperative living projects of five or more living units, such as apartments and hotels. Fla. Stat. Ann. § 514.011 (2).
FROM 2017 TO 2019 COMBINED, FLORIDA WAS RANKED THE HIGHEST IN THE U.S. FOR UNINTENTIONAL DROWNING DEATH RATE AMONG CHILDREN AGES 1 TO 4 YEARS (6.29 PER 100,000 POPULATION).
What is Considered a Residential/Private Pool?
This understanding is further confirmed by the Act’s definition of “residential,” which defines the term as a one-family or two-family dwelling. Fla. Stat. Ann. § 515.25 (10). A vacation rental home would likely be considered a single-family dwelling. Further, a residence’s pool would fit into the 514.011’s (Florida Statute) definition of a private pool. A “private pool” is defined by this Florida Statute as one which is used “only by an individual, family, or living unit members and their guests which does not serve any type of cooperative housing or joint tenancy of five or more living units.” Fla. Stat. Ann. § 514.011 (3). During a rental term, a vacation rental’s pool is used only by an individual, family, or other temporary members of that living unit and is not open to the public or any non-guests of the tenants. The determining factor on the classification of a pool that serves dwelling units seems to turn on the number of units within the complex. If a vacation rental’s pool serves a single dwelling unit, it would likely be considered a private pool.
Florida’s Residential Pool Safety Act
Under Florida’s Residential Pool Safety Act, a residential (including those used in any home share program) pool must be equipped with certain safety features. To pass a final inspection, a residential pool must meet at least one of the following requirements:
- The pool must be equipped with an approved safety cover
- All doors and windows which provide access to the pool must be equipped with a self-closing, self-latching device with a release mechanism placed no lower than 54 inches above the floor
- The pool must contain an independently certified alarm that sounds upon detection of accidental or unauthorized access to the pool.
- Pools must be protected by a barrier
Pool Barrier Requirements
Fla. Stat. Ann. § 515.27
(1). Further, pools must be protected by a barrier. Fla. Stat. Ann. § 515.29
(2). Barriers must be at least four feet high without any gaps, openings, or other components which would allow a young child to circumvent the barrier. Id. A barrier must be placed “sufficiently away” from the water’s edge to prevent someone from immediately falling into the pool if they penetrated the barrier. Id. If a gate is used to provide access to a pool, it must be self-closing, self-latching, open outwards, and its release mechanism must not be placed in a manner of which a young child can operate it. Fla. Stat. Ann. § 515.29
(3). Barriers may not be placed in such a way that allows an extrinsic object to be used to climb over it. Id. A dwelling (part of the house) wall may serve as part of a barrier so long as it does not contain a door or window that would allow access to the pool. Fla. Stat. Ann. § 515.29
(4). If the dwelling barrier wall has windows, the windows must be equipped with an acceptable alarm, be screened, or protected and have a bottom sill height of 48 inches or more, or the pool must have the detection alarm. Fla. Bldg. Code R4501.17.1.9. Barrier wall doors would have to be self-closing and contain a self-latching mechanism at least 54 inches above the threshold or the pool must have a detection alarm system. Id.
Public Pool Requirements
There seems to be a little distinction among public and residential pools regarding safety requirements to prevent drownings. Public pools must contain the following safety features:
- An anti-entrapment system or a similar approved device
- A shepherd’s hook within 16 feet of the pool
- At least one 18-inch diameter lifesaving ring with enough rope to reach all parts of the pool from the pool deck.
Fla. Stat. Ann. § 514.0315; Fla. Admin. Code Ann. r. 64E-9.00.
In sum, any home-share rental unit’s pool would likely be subject to the Residential Swimming Pool Safety Act and not be considered a public pool. These two pool classifications have few distinctions relevant to the instant case with the public pools requiring lifesaving devices and devices to prevent persons from being entrapped by drains.
Many home share properties are not in compliance with Florida’s Residential Pool Safety Act but despite this place their homes on the market. Many times, these homes are seeking out tourists who are unfamiliar with pool safety and who are traveling with young children.
Protecting these young children was the reason the Florida Legislature passed the residential pool safety act and homeowners should make certain their pools are in compliance with the Act.
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Joe Zarzaur is a Board Certified Civil Trial Attorney whose firm is dedicated to promoting community safety since 2007. ZARZAUR LAW’S AREAS OF PRACTICE: Serious Personal Injury, Product Defect, Auto Accidents, Cycling Accidents, Motor Vehicle Accidents, Products Liability, Wrongful Death, Community Safety, Boat and Jet Ski Accidents, Slip and Fall Injuries, and more. Licensed in Alabama and Florida.
If you or a loved one has been injured by any homeowner’s failure to comply with this act, put yourself in the best possible position to receive the justice you deserve. It is also important to consult with a Board Certified Trial lawyer who has the knowledge and experience to help you. We know accidents can be stressful and want to make the process as easy as possible for you. Call Zarzaur Law, P.A. today at (855) Hire-Joe, or by requesting a free case review through our website.
Sources:
http://www.floridahealth.gov/programs-and-services/prevention/drowning-prevention/index.html
Florida statute – http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0500-0599/0515/0515.html