On behalf of the American Resort Development Association (ARDA) and the American Resort Development Association – Resort Owners Coalition (ARDA-ROC), I write to offer comments in relation to the Notice of Intended Regulatory Action (NOIRA) regarding Regulations Governing Tourist Establishment Swimming Pools and Other Public Pools [12 VAC 5-460].

If the Department decides to proceed with rulemaking concerning tourist establishment swimming pools, the proposed regulations should not include a requirement that a lifeguard be present at such a facility. Moreover, any proposed regulations should not require significant retrofitting of existing facilities for any other changes the Department may contemplate, nor should it dramatically increase the cost of operating or developing a tourist establishment in the Commonwealth.

A timeshare resort is a unique form of tourist establishment. Timeshare resorts are managed by a resort association consisting of timeshare owners. Some associations self-manage, and others hire a management firm. Its owners bear the maintenance costs for maintaining the resort. Anything that increases the cost of operating and maintaining a timeshare resort increases the financial obligation of those timeshare owners.  

Some timeshare resorts rent vacant rooms to the public for short-term stays. Like a hotel, the rental of a room usually entitles the occupant use of the common facilities at the resort. Also, like a hotel, timeshare resorts most often do not offer a lifeguard at the resort’s swimming pool.

Any mandate requiring a lifeguard to be on duty during proscribed hours and/or not allowing the use of a pool without a lifeguard on duty will have a significant adverse effect on timeshare resorts, individual timeshare owners, and other tourist establishments. There is a nationwide shortage of lifeguards and other service industry workers. A personnel mandate is not merited and should not be included in any draft regulations the Department may develop.  

I appreciate your consideration of these comments on behalf of timeshare owners and developers in Virginia. 

October 26^th, 2022

Briana Bill

Program Manager, Tourist Establishments & General Environmental Health Services

Virginia Department of Health

109 Governor Street

Richmond, VA 23219

RE: Virginia Department of Health Periodic Review of Regulations Governing Tourist Establishment Swimming Pools and Other Public Pools, 12VAC5-460

Ms. Bill: 

On behalf of the Virginia Restaurant, Lodging & Travel Association, I want to take this opportunity to share our organization’s comments regarding the Periodic Review of Regulations Governing Tourist Establishment Swimming Pools and Other Public Pools by the Virginia Department of Health (VDH). 

As you know, under VDH Policy Memo #1-74, and guidance from the agency in 1994 correspondence, there is currently no requirement for a transient lodging establishment to have a certified lifeguard on duty; however, these tourist establishments must have a staff member who can perform the functions as a lifeguard in case of an emergency. 

After consulting with numerous lodging establishments, including hotels and campgrounds across the Commonwealth of Virginia related to this code section, we want to advise against any adjustments to this policy that would have the effect of requiring a transient lodging establishment maintain a certified lifeguard on the property during pool hours. 

Mandating the presence of a lifeguard at hotel and private campground pools would impose many new challenges on these businesses. As you may know, there is a significant shortage of lifeguards across the country with almost a third of all pools in the United States unable to secure the necessary coverage. This issue coupled with results from an October 2022 survey by the American Hotel and Lodging Association, found 87% of hotels are operating with appromiately 10 positions unfilled. 

Requiring a certified lifeguard would compound the staffing challenges facing hotels and campgrounds. If lodging establishments are compelled to obtain certified lifeguards, it would likely result in many of these establishments simply closing their pools and ending the use of this guest amenity, which would also harm their ability to attract additional guests to their properties.

Another issue that arises with stipulating that hotels and campgrounds must have lifeguards is the price. According to information shared with us by lodging establishments across the Commonwealth, it would impose an additional cost onto the business of anywhere from $70,000 to $800,000. This economic hardship would disproportionately harm the smaller lodging establishments. 

The final issue with requiring a certified lifeguard on duty at a tourist establishment pool would adversely impact liability. Insurance companies discourage lodging establishments from hiring certified lifeguard to manage the pools as it significantly increases the liability of hotel or campground.

After considering the issues raised by hotels and private campgrounds in Virginia, and examining the Regulations Governing Tourism Establishment Swimming Pools, we would like to request the following adjustments be considered by VDH:

• 12VAC5-460-320. Lifeguards.

“The management of any transient lodging establishment where a swimming pool has been provided for the use of guests shall designate and have on duty a reliable and competent person as a lifeguard and management shall provide for the use of this lifeguard, such life saving equipment as may be required depending upon the size and depth of the pool.”

• • VRLTA Recommendation—Please consider incorporating the following adjustments: 

The management of any transient lodging establishment where a swimming pool has been provided for the use of guests shall designate and have on duty a reliable and competent person [as a lifeguard][on the transient lodging establishment staff who can perform the functions of a lifeguard, but may not be stationed at the pool for this designated duty] and management shall provide for the use of this [lifeguard][staff member], such life saving equipment as may be required depending upon the size and depth of the pool.

[No bather shall be permitted to enter a swimming pool or swimming pool enclosure unless a lifeguard is present except where pools serve restricted clientele only, such as hotels, campgrounds, and other lodging establishments. 

In such places where no lifeguard service is provided, a warning sign shall be placed in clear view, and shall state clearly in legible letters at least four inches high: WARNING – NO LIFEGUARD ON DUTY.

In addition, the sign shall also state: CHILDREN SHOULD NOT USE THE POOL WITHOUT AN ADULT IN ATTENDANCE.]”

• • VRLTA Rational: This change helps to bring clarity to the existing section of the Virginia Administrative Code dealing with Tourist Establishment Swimming Pools and the section related to lifeguards. It also codifies existing policy under Virginia Department of Health Policy Memo 1-74, and guidance outlined in 1994 correspondence from the former Director of the Division of Food and Environmental Services, John E. Benko MPH, at the Virginia Department of Health. 

We strongly oppose any proposal that would require lodging establishments hire or maintain certified lifeguards on duty, and would suggest incorporating the changes mentioned previously to the Regulations Governing Tourism Establishment Swimming Pools. Thank you for your time and consideration of our request.

We are happy to discuss these recommendations with you should you have any questions or concerns related to them.

Sincerely,                                                                      

Robert Melvin

Director, Government Affairs

Virginia Restaurant, Lodging & Travel Association

Attached: VDH Lifeguard Policy Memo

CC:       The Honorable John Little, Secretary of Health and Human Resources, Commonwealth of Virginia

            Ali Ahmad, Director of Policy, Office of the Governor, Commonwealth of Virginia