Beaumont Tashjian Law Blog

Tuesday, December 8, 2020

COVID-19: The Latest State Mandate by: A.J. Jahanian, Esq.

COVID-19: The Latest State Mandate:

           As most have certainly heard by now, Governor Gavin Newsom announced a “Regional Stay at Home Order,” taking effect December 5, 2020. Among other things, it provides that the California Department of Public Health will be charge with identifying the adult ICU capacity for each particular “region,” and if those capacities fall below 15%, more stringent mandates/guidance will apply (i.e., individuals in those regions are “ordered” to stay at their place of residence, except for certain permitted activities, such as outdoor recreation, political expression and worship, seeking critical services, etc.).

           The Southern California region, as defined by the State, encompasses the counties of: Los Angeles, Orange, Riverside, San Bernardino, San Diego, Imperial, Inyo, Mono, San Luis Obispo, Santa Barbara and Ventura. So, if the ICU capacity for the region as a whole falls below 15%, the State’s stricter orders are triggered for a period of three (3) weeks. At the time of this writing, the Southern California region’s ICU capacity is below 15%.

           What does this mean for community associations within any of the foregoing counties? Well, for at least the next three (3) weeks, associations will need to consider imposing, or re-imposing additional restrictions on their common area facilities. The State has ordered the complete closure of the following sectors/amenities (among others):

  • Indoor and outdoor playgrounds;
  • Indoor recreational facilities, such as fitness centers and indoor swimming pools; and
  • Movie theaters.

Since the State does not address community association facilities specifically, as with its many other orders, boards and managers, in consultation with legal counsel, will have to make their best, most reasonable interpretation of the Order and apply it to their association, as it sees fit and practicable.

           For example, boards will need to consider shutting down outdoor playgrounds once again, to comply with the Order. Fitness centers, per the Order, also must be closed, unless they can be repositioned outdoors, and subject to limited capacity (based on the county’s requirements). Outdoor swimming pools may be opened, however, they too are subject to the county’s own restrictions on pool capacity, social distancing, etc. For example, at this time, Los Angeles County only allows one (1) swimmer per lane, at a time.

           As you may have already noticed, each county can impose additional, stricter mandates than what the State is ordering. Thus, it is critical to review your county’s health department’s order(s), if any. Also note, as some counties have already done, though the region may not have an ICU capacity below 15% and the State’s strict orders are not triggered, each county can voluntarily choose to implement those orders and required closures, etc. So even once Southern California is in the “clear”, a particular county may still be requiring those closures and other orders to continue.

           Neither the State, nor many counties, have issued specific guidance for shared residential facilities or homeowners associations. Therefore, as always, it is most prudent to consult with legal counsel to determine what, if any, of the mandates could apply to your community or would create a risk of liability if not followed.

          In all instances, wearing a facial covering while traveling through common areas is required, as this remains an order from the State level. Boards can enforce this and other requirements through the adoption of emergency rule changes and disciplinary hearings, but of course, should defer to compassion and empathy. These new rules and government directives are new to us all, and we have been lucky that they have not been the norm for us until 2020. There will be slip-ups, but blatant violations of association rules should be enforced.           

          To help create consistency in responding to the current pandemic (or future pandemics), as State/county orders continue to change, boards should implement a pandemic response policy or adopt protocols which give homeowners and residents advanced notice of how their membership privileges may be impacted by these events.


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