The within action seeks a determination of whether N.J.S.A. 26:4A-1, the so-called Swimming Pool Code, applies to a condominium association. The material facts are not in dispute and cross motions for summary judgment have been filed. R. 4:46-2.
The condominium complex involved here is a residential structure containing 60 individually owned units located in the Borough of Stone Harbor. The plaintiff association is made up of the various owners of those units. One of the common elements of the condominium property is a swimming pool which is open for use by tenants and their guests. Owners of the individual units are also free to lease their units and some of them do. Those tenants and their guests may likewise use the pool. There is no lifeguard on duty at the pool at any time.
Under the State Swimming Pool Code, adopted by the New Jersey Department of Health in 1970, pools operated "for profit" must have at least one senior lifeguard on duty at all times during the operation of a pool, and such lifeguard should hold as a minimum a valid senior lifeguard certificate issued by the Red Cross, YMCA or other equivalent rating. N.J.S.A. 26:4A-1, et seq. By ordinance, the Board of Health of the Borough of Stone Harbor adopted the Swimming Pool Code by reference in 1978.
The first count of the within complaint seeks a declaratory judgment that the statute does not apply to plaintiff. The constitutionality of the applicable statute and ordinance are challenged in the second and third counts. The within motion is directed only to the declaratory judgment aspect; namely,
whether or not the statute and ordinance in question are applicable to this plaintiff as a condominium association.
It is the contention of the Borough of Stone Harbor that the swimming pool at the Hall Harbor Condominium is in violation of both the ordinance and the Swimming Pool Code because of plaintiff's failure to have a lifeguard on duty during the hours that the pool is being operated. Citing Raponotti v. Burnt-Mill Arms, Inc., 113 N.J. Super. 173 (App.Div.1971), it argues that the legislative intent behind the statute was to recognize the inherent danger to people who swim in pools where large numbers of persons may congregate and to require the presence of a lifeguard and life saving equipment. As noted in the Raponotti decision a pool may be "public" even though no charge is made for admission.
The Borough also argues that monies are indirectly charged for the use of the pool and the pool is thus indirectly operated for profit. Finally, defendant contends that if Hall Harbor were an apartment house, a lifeguard would be required. Merely changing the form of ownership to a condominium association does not lessen the danger to the swimmers.
Plaintiff, on the other hand, argues that the swimming pool is a common element and is only for the use of individual owners who contribute to a maintenance fee managed by the plaintiff association. As the Association points out, it is a non-profit corporation and as such, does not gain financially in collecting the assessments and maintaining the property. It also contends that although unit owners who lease have a potential for profit, most of the units are not leased and those which are do not generate a profit but merely defer some of the expense of owning such a condominium. Plaintiff thus submits that it is specifically exempt from the statute.
The applicable provision of the Swimming Pool Code reads as follows:
Every person operating a swimming pool or public swimming place, directly or indirectly, for profit shall provide adequate ...