Several years ago, the Texas legislature considered requiring fences around virtually every man-made body of water.
There was no distinction between swimming pools, wading pools, waterfalls or portable hot tubs.
All across the state, the industry was in agreement: The measure, as written, was too restrictive at best, draconian at worst.
“This was a statewide regulation,” says Dan Gossage, owner of Dan’s Pool Service in Boerne, Texas. “A lot of cities had it for new construction, but this would have required retrofits. It would have been completely onerous.
“We got in front of the right committee and were able to strike it down,” he added. “But at that point we knew we needed a mouthpiece in the capitol, someone to talk to lawmakers.”
As a result of the fencing battle, in 2005 Gossage helped establish the Aquatic Professionals Education Council, a group to advocate on behalf of the pool industry in Texas. The Austin-based organization was fashioned after California’s powerful lobbying group SPEC, which consistently beat back decades of questionable legislation.
Today, the pool and spa industry has become a magnet for government regulation — from local permitting to statewide energy codes to federal safety laws. In this new environment, it’s crucial that industry members help lawmakers develop sensible regulations based on facts and science.
But this is a challenging task at best, especially for an industry that for decades has been vilified as heartless “child-killers” who are solely concerned with lining their pockets.
Here, we examine the industry’s government relations efforts, the new challenges that have emerged, and how advocates are working to overcome them.
California has long served as a legislative bellwether, taking the lead on regulations ranging from energy-efficiency to water conservation to safety laws.
For more than three decades, the tone of pool and spa legislation in the state — and thus the nation — was the responsibility of one man.
Don Burns never set out to be the pool industry’s advocate, or, as some would say, its savior. He was an attorney and lobbyist in the insurance field when, in the mid-1960s, he was asked by an old friend to take over the local Northern California chapter of an industry association.
Then came the first oil embargo of 1973, and an emergency regulation threatened to ban the use of gas to heat pools. Burns and industry members acted fast, filing an appeal which ultimately proved successful.
That exercise gave rise to a new lobbying organization: the California Spa and Pool Industry Education Council, or SPEC.
Over the next three decades Burns earned accolades industry-wide for his advocacy efforts, while also garnering his share of criticism among drowning-prevention groups that felt he was uncaring about child safety.
But Burns dismisses those charges.
“In Washington, as well as the 50 states, we see stumbling governmental agencies attempting, too late, to make sense out of law[s] seemingly written with the sole intent of creating a legal Rubik’s Cube,” he has said. “No matter how we come at it, this problem stubbornly refuses to be solved.”
As the years passed, the legislative front intensified across the country.
In May 2000, a young Florida legislator named Debbie Wasserman Schultz won passage of a law requiring that all new pools and spas be equipped with a variety of safety measures.
The Florida Residential Swimming Pool Safety Act called for pools to include at least one new safety feature before it could receive a certificate of completion. But the law wasn’t clear regarding contracts that were signed before it took effect. Would those jobs now be subject to the new requirements?
Four months later, a Tallahassee, Fla.-based pool company, Pensacola Pools East Inc., filed a lawsuit in Leon County asking for a temporary injunction against the law. The suit challenged the date of mandated compliance, Oct. 1, 2000, and the impact it would have on pool projects in varying stages of completion.
The suit was supported by industry leaders statewide, and their decision to back Pensacola Pools would have far-reaching consequences.
“It was absolutely the worst thing we could have done,” says Dan Johnson, a past president of the Florida Swimming Pool Association and founder of contracting firm Swim Inc. in Sarasota, Fla. “The advice we were given in terms of fighting the advent of regulating safety in our industry was just bad, and we were too stupid to know it.”
Florida industry insiders widely acknowledge a missed opportunity to form a positive relationship with Wasserman Schultz. Instead, the lawsuit provided more fuel for those who claimed the industry didn’t care about safety. And battle lines, already drawn, were deepened.
As a result, FSPA in 2006 hired a full-time lobbyist,Jennifer Hatfield, to serve as director of government affairs. In addition to a law degree, Hatfield brought an intimate knowledge of the legislature, where she had previously worked full-time for the Florida speaker of the House of Representatives.
“I would equate the advent of Jennifer to the invention of the wheel,” Johnson says without a trace of irony. “It was that radical of a change. All of a sudden, those of us who were so proud of what we had achieved realized that we hadn’t achieved squat.
“We didn’t know anybody legislatively, didn’t know the process or how to get in touch with lawmakers, how to talk to them, or how to work with them,” he adds, citing the handful of volunteers — builders and service technicians — who assumed most pre-Hatfield advocacy efforts. “She brought all of that to us. All of a sudden we went from riding a bicycle to driving a sports car, politically.”
Another defining moment, this time in the Northeast, came in 2002 during one of the worst regional droughts in decades. Local water agencies had proposed restrictions on water usage — no filling of new pools, no topping off existing ones — that many believe would have decimated the industry.
Officials with the Northeast Spa and Pool Association marshaled a coalition that included members of the swimming pool, landscaping and even golf course industries. The funds they raised were used to hire lobbyists, who attacked the regulations on both the county and state levels, and managed to win relief for all affected parties.
“When an issue came up, like the drought, members and non-members pulled together because they saw a threat to their ability to do business,” says Lawrence Caniglia, executive director of Hamilton, N.J.- based NESPA. “It’s the perfect reason why you need strong industry associations — something strong enough to respond to those types of threats that come down the pike.”
That same year, the tragic drowning of seven-year-old Virginia Graeme Baker in a backyard spa sent shock waves across the industry. Investigators found that Graeme, the granddaughter of former Secretary of State James Baker III, had been the victim of suction entrapment — a rare occurrence in which hundreds of pounds of pressure exerted by a pool or spa’s circulation system pins a person or object to an underwater drain.
Almost immediately, the writing was on the wall.
“Ultimately it was highly visible, tragic incidents such as this one that brought us the federal law,” says Carvin DiGiovanni, senior director, technical and standards for APSP. “We knew it was coming.”
What’s more, the sponsor of what would become the Virginia Graeme Baker Pool and Spa Safety Act was none other than now-Congresswoman Debbie Wasserman Schultz.
The first-ever federal legislation pertaining to pools and spas was signed into law on Dec. 19, 2007, and took effect one year later.
Though its intent is widely lauded, the law’s subsequent interpretation and resulting impact on public pools — including crippling expenses and widespread closures — has left many questioning its ultimate effectiveness.
For an industry that had previously flown under Washington’s radar, VGB was the ultimate game-changer.
In the wake of Graeme Baker’s drowning, industry leaders recognized the need for early involvement. But previous battles in the Florida legislature quickly derailed hopes for a meaningful contribution from the industry.
“They didn’t want to hear from us,” Johnson remembers. “We made phone calls that never got returned. It was a real struggle to get in there. The truth is, we didn’t get involved until it was two or three years in already. But it wasn’t for lack of trying. It was for lack of being listened to, and it was our own fault.
“We filed a lawsuit [in 2000] to stop Debbie Wasserman Schultz’s legislation from passing in the state of Florida,” he adds, “and she saw our industry at large as being anti-safety.”
In fact, the industry has long been condemned by politicians and citizens alike for a perceived lack of concern for pool safety. Too often, it seems, if pool professionals oppose poorly conceived legislation, it becomes misinterpreted as opposition to any regulation at all.
For example, in 2006 SPEC helped alter a proposed double barrier bill, California’s AB 2977. The group lobbied to take removable mesh fencing off the list of allowable safety devices, arguing that such barriers were only 4 feet high, whereas state law called for fencing around pools to be 5 feet.
“That makes it easier for a child to get over,” Burns said at the time. “We think it is absolutely antithetical to the whole purpose of the bill.”
Nonetheless, the bill was sponsored by the California Coalition for Children’s Safety & Health, the Drowning Prevention Foundation and the California Safe Kids Coalition. Resistance to its language was not viewed favorably by supporters, regardless of the rationale, recalls Burns.
Indeed, the stigma of indifference is one the trade continuously fights to shed.
“Safety has always been a key for the industry,” DiGiovanni says. “Peel everything away, and safety is good for business. On the other hand, kids getting hurt in pools is not good for business.”
It’s natural for parents and lawmakers to seek to fill the void left by a child’s drowning, DiGiovanni explains. It becomes a passion — and understandably so.
But passion is an emotion, and that can feed the belief that one additional product or barrier would have saved the child’s life.
Unfortunately, that information gap isn’t always filled by those with the best intentions. The preponderance of regulatory activity in recent years has opened the door for special interests, some of whom appear determined to see their products written into codes or legislation — and some even masquerading as safety advocates.
“When a manufacturer wants to sell its product, the problem arises when other products that have not been developed yet may be excluded because they don’t fit the exact definition of what may have been written into the standard,” Caniglia explains. “So it hurts competition, and nobody wants that.”
What more, overstating the capacity of, say, a safety device, can give officials and consumers a false sense of security if that device is not engineered for the function or code it’s designed to satisfy, he adds.
Taking Over the Message
Fairly or unfairly, today’s political battles often are fought and won in the press — be it through the trades or mainstream outlets.
In early August, for example, an Associated Press article featured Nancy Baker (Graeme’s mother) and another parent of an entrapment victim claiming members of the pool industry had sought to weaken the federal statute.
“The laws are trying to be rolled back by the pool industry, and we really want to make sure that we’re here to protect the children,” stated Karen Cohn, whose 6-year-old son died in 2007 after he was entrapped in a suction outlet in his family’s pool.
The article, which was picked up by major newspapers across the country, featured a brief quote from a pool and spa industry representative sandwiched by descriptions of the Cohn and Baker family’s advocacy efforts.
“The media … talks to both sides, but they don’t always report on both sides,” Caniglia says. “It’s the emotional toll of these stories — these horrible tragedies take place where a child drowns, and everybody wants a fall guy.
“[We say] we want to prevent entrapments, and this is how you do it,” he adds. “And what gets reported is that the pool and spa industry is trying to make pools unsafe.”
The issues may vary from state to state, but the tactics are consistent.
John Norwood, who assumed leadership of SPEC after Burns retired in ’09, managed to modify legislation this summer that may have prevented pool builders and service technicians from installing and repairing pumps. Instead, they would have had to subcontract the work to an electrical contractor.
“It was a labor-backed bill that could have required pool contractors to use union electricians,” he said. “And a lot of these groups have good press efforts that they can utilize throughout the state.
“This is a contact sport,” Norwood adds. “A lot of bad things get passed, and it’s not because people don’t fight against them, it’s because all of a sudden there’s a group of people who decide that’s what they want to do.”
But advocacy also must become more encompassing, industry insiders say. And the future success of any national effort depends on a vast network of volunteers, serving as the industry’s eyes and ears.
The goal is to identify and respond to matters early enough in order to bring about a positive outcome, “or at least know when a bill or rule is filed,” Hatfield says. “Let’s have our ears to the ground so we know when things come out. The real utopia, of course, is to find out about it before it’s introduced.”
Back in Texas, where APEC is preparing for regulatory showdowns at the start of 2011, board members are pleading for greater involvement from a statewide industry that likely numbers between 5,000 and 6,000 strong.
It’s a common problem among professional associations: how to boost participation, particularly at a time when businesses are struggling for survival.
“Legislators are not our enemies,” says APEC board member Pat Walsh, who also serves as president of APSP’s South Texas Chapter in San Antonio. “They can be our partners. They can’t craft this legislation without advice from people in the industry.
“We’re not looking for more government regulation,” he explains. “But it’s coming anyway. And in my limited experience, I’ve found lawmakers to be very open to the truth and science of matters. Why let them pass laws that are counter-productive when we have the solutions.”