On May 11th Governor Henry McMaster announced that the following may reopen on Monday, May 18th in a limited capacity:
- Close Contact Services Providers (things like barber shops, hair salons, nail salons, spas, massage therapy establishments)
- Fitness & Exercise Centers
- Commercial Gyms
- Public or Commercial Pools
Top on the list of questions from board members has been whether this announcement means that HOAs and condos have to reopen pools and other amenities, like gyms, fitness centers, or club houses.
Any board of directors considering whether to reopen pools or other amenities should ask two essential questions. The first question is: “Can we reopen?”
In South Carolina, at least, there are multiple layers to this question since there are multiple layers of government. In a similar recent order in which Governor McMaster reopened state parks and beaches he nevertheless specifically included language in that order allowing local counties and municipalities to use their discretion about reopening. The result has been that some beaches opened immediately while others have chosen to remain closed. Although no executive order has been issued yet following his announcement on May 11, any future order from the Governor may contain similar language allowing local leaders to still keep things closed.
The second question is: “Should we reopen?”
First, no two communities are exactly the same. Homeowners, managers, and boards of directors should keep that in mind. What is the right answer in an active 55+ community may be different from a high rise condominium, which may also be different from a large single family community.
Second, the decision about opening/closing/reopening common areas is a matter of best judgment for the board of directors. The board of directors was elected by the members to make decisions such as this.
Third, the CDC continues to recommend closures and limiting the opportunity for contact with other people. It would be difficult to argue with a board that decides to heed the CDC’s advice. In addition, some communities have expressed concern that they may not be able to guarantee that individuals keep appropriate social distancing and that sufficient cleaning can be accomplished. For some, the extra expense associated with employing additional pool personnel and additional cleaning personnel may be a barrier to reopening, especially if the budget is tight to begin with.
All these factors are things the board of directors will want to consider. So long as a board’s decision is made in good faith, with the care an ordinarily prudent person would exercise, and with the reasonable belief that it is in the best interest of the community, then it is unlikely that a person challenging the decision could prevail and the board would be on good ground for its decision.
For boards of directors that decide that reopening is the right decision for their community, here are guidelines created by the SC Department of Health and Environmental Control (SC DHEC) related to gyms and fitness centers and here are similar guidelines for public or commercial pools.
The information contained in this article is provided for general purposes only and does not constitute legal advice. If you or your community have questions about reopening amenities or other portions of your community contact one of the experienced community association attorneys with Black, Slaughter & Black.
Author: David Wilson
Articles have been Reprinted with permission from Black, Slaughter, Black.
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