The Pennsylvania Health Club Act, which governs most types of health clubs located in Pennsylvania, was amended effective September 3, 2012, to permit health clubs to have non-staffed hours of operation so long as specific conditions are met. As many health club franchised companies are transitioning to 24-hour operation, the amendments to the act are very helpful.

Background

In 1989, the act was passed to regulate health club contracts and the terms of membership. The act previously required every health club to employ, and have on the club’s premises during all hours of operation, a person who is trained and certified to administer CPR. If the health club was open for more than eight hours a day, five days a week, the club was required to employ at least two people who are trained and certified to administer CPR.

In recent years, health clubs began offering members around-the-clock access, 24 hours a day, seven days a week. However, this concept was only practical if the health clubs could provide members with access during non-staffed hours. This was difficult under the act due to its requirement that at least one person trained and certified in CPR be present at the club during all hours of operation. While there were limited exceptions to this requirement, compliance with such exceptions was both difficult and cumbersome.

The Act before the Amendments

Before discussing the changes to the act regarding non-staffed hours of operation, it is important to review the other obligations of health clubs in Pennsylvania that remain unchanged. The membership contract must be in writing and for a maximum term of 36 months. The act sets forth various requirements for the content of the contract, including mandatory notice provisions. Every health club must file with the director of the Bureau of Consumer Protection in the Pennsylvania Office of the Attorney General either (1) a bond with corporate surety from a company authorized to do business in Pennsylvania, or (2) an irrevocable letter of credit from a Federal Deposit Insurance Corp.-insured bank. The amount of the bond or letter of credit will depend on the duration of the membership contracts. However, if a health club certifies in writing to the director that it will only offer contracts of up to 24 months and maintain no more than 300 members or 150 members, the required bond or letter of credit will be reduced. On or before June 1 of each year, all health clubs must certify to the director that the required financial security remains in effect.

A club will be exempt from the financial security requirement if all of the following conditions are met:

• The contract must include the following notice language: "Under this contract, no further payments shall be due to anyone, including any purchaser of any note associated with or contained in this contract, in the event the health club at which the contract is entered into ceases operation and fails to offer a comparable alternate location within 10 miles."

• All payments due under the contract must be in equal monthly installments spread out over the entire term of the contract (no annual or paid-in-full contracts), except that the club can charge an initiation fee not to exceed the lesser of six monthly installments or the actual costs of establishing the initial health club membership.

• There can be no other payments due under the contract (such as down payments, membership fees, or other direct payments), other than the monthly payments and initiation fees described above.

• The term of the contract may not exceed 12 months.

• The contract must comply with the other provisions of the act.

At least 30 days before advertising, offering for sale, selling, or providing health club services, a health club must register with the director using the required form.

The Helpful Changes to the Law

After September 3, 2012, a health club in Pennsylvania is not required to employ a person who is trained and certified to administer CPR, or have such a person on the club’s premises during all hours of operation, if the club complies with certain conditions.

Conditions for Having Non-staffed Hours

If a health club complies with all of the following conditions, it will be permitted to have non-staffed hours during which members can access and use the facility.

• Premises Requirements:

The portion of the club premises in which members are permitted access during non-staffed hours must consist of 6,000 square feet or less and meet the requirements of the local municipality in which the health club is located concerning accessibility to emergency services responders from the outside of the health club.

• Mandatory Equipment:

The area of the health club accessible during non-staffed hours must be equipped with all of the following:

• At least one automated external defibrillator.

• Appropriate signage (including a sign posted in plain view by each automated external defibrillator, panic button, 911 telephone and personal security device with instructions for their use, and a sign posted in plain view indicating that working out alone during non-staffed hours may pose health and safety risks).

• A panic button (defined as a wall-mounted device that, when intentionally activated by a person, sends an electronic signal informing a public safety answering point or a remote monitoring station that the person is in need of emergency services).

• A 911 telephone (defined as a telephone that either allows the caller to contact a public safety answering point by dialing 911, or automatically calls a public safety answering point when a person picks up the handset and activates the telephone).

• At least four personal security devices (devices that are designed to be worn around the neck and, when intentionally activated, send an electronic signal informing a public safety answering point or a remote monitoring station that the person is in need of emergency services).

During the orientation of each new member, or at the time a member renews his or her membership, the health club must provide instructions regarding the use of the health club during non-staffed hours, including the location and use of all mandatory equipment. All contracts for a new or renewal membership to the health club must contain a waiver that explains to the member that the health club may have hours during which it is not staffed, explains to the member that the health club is required to have certain safety equipment, and instructs the member as to the location and use of such equipment. There are additional notices to existing members in existing clubs that are transitioning to non-staffed operation. •

Craig R. Tractenberg is a partner in the Philadelphia and New York offices of Nixon Peabody and an adjunct professor teaching franchise law at Temple University’s Beasley School of Law.