Don’t Get Wet: March 15 is Only Two Weeks Away!

Resource Topic: 
Governance
Liabilities
By: David A. Firmin

On July 23, 2010, Attorney General Eric Holder signed Final Regulations revising the Department of Justices’ ADA regulations.  Among other revisions, these new regulations created new standards for accessibility to pools and hot tubs for all “places of lodging” and “places of public recreation”.  All compliance must be achieved by March 15, 2012, or upon the opening of the pool for the 2012 season.

Does This Impact Your Association?
While typically, the ADA does not apply to homeowners associations, in some instances, it does.  If your association qualifies as a place of public lodging, meaning members in your community provide guest rooms or units for short term stays (anything less than 30 days) where the guest has no right to return to a specific unit after his stay; or, if your community offers memberships to your facilities to persons that do not reside in your community, such as memberships to a club house or work-out facility, the ADA Standards may apply to your community. 

The fact however, that your association offers its private members the right to invite guests into the community does not create an obligation to comply with the new ADA standards.  This includes situations in which your community may play host to a private swim team.

Additionally, there is no “Grandfathering” for existing pools and hot tubs.  These modifications must be made for facilities subject to the ADA no later than the March 15, 2012, deadline or when the pool opens for the 2012 season.

What are the Regulations?
While the new regulations cover a number of different areas, the most notable is the requirement that associations make swimming pools accessible.  This means for each swimming pool with less than 300 linear feet of wall, there must be a sloped entry or a compliant pool lift. 

If the swimming pool exceeds 300 linear feet, the pool must have two primary entry points, such as a sloped entry or a pool lift and at least one secondary entry point such as a transfer wall. 

These regulations also apply to hot tubs and wading pools.  If your hot tubs are clustered, meaning within close proximity to each other, only one tub, but no less than 5% of the tubs need be accessible.

What is “Readily Available”?
The requirements state that the pool lift, if used, must be readily available.  While there has been some debate as to what is “Readily Available”, upon consultation with the Department of Justice, “Readily Available” has been interpreted to mean installed, constructed, and permanently affixed to the pool deck during all hours the pool and spa are open.  The Department of Justice is taking a very hard line approach to this issue and does not consider portable or mobile lifts to be compliant.

What is “Readily Achievable”?
The above discussed regulations need only be made if they are “Readily Achievable”.   Readily achievable, is defined as, “easily accomplishable without much difficulty or expense”.  However, we do not recommend you read too much into this as the Department of Justice takes a very narrow approach to interpreting the “readily achievable” standard. In considering readily achievable standards, the association can look at the nature and cost of the action, the facilities’ financial resources (including any parent company), the effect of the action on the facility operations, the number of employees at the facility, and any legitimate safety requirements (these, however will be discounted by the Department of Justice as the Department feels it is the owners’ responsibility to control the property).

If an association can show that compliance would truly be an undue hardship to the association and its members, there may be some defense to the compliance requirement.  Just remember however, if challenged, the burden of proof to prove the modifications were not “Readily Achievable” is the association’s.

This is a brief overview of the new ADA regulations.  We recommend you consult with the association’s legal counsel before making any changes or decisions in relation to this issue as the cost for non-compliance can be high.

If you have any questions about this ADA pool requirement, please contact a HindmanSanchez attorney at 303.432.9999.