New Ada Rules May Require Changes At Your Swimming Pool

The 2010 Americans with Disabilities Act (“ADA”) Standards for Accessible Design (the “2010 Standards”) went into effect on March 15, 2012. The 2010 Standards establish new requirements for amusement rides, boating facilities, golf & miniature golf facilities, swimming pools and play areas, clarify issues concerning reach ranges, toilet room dimensions and accessible routes, the dispersion of accessible hotel rooms among the different classes of rooms provided, and the overlap between wheelchair accessible rooms and rooms with communication features for entities governed by the ADA. Title III of the ADA governs public accommodations and commercial facilities.

2010 Standards Require Accessible Swimming Pools & Spas
The most controversial of the 2010 Standards is the requirement that all newly constructed or altered swimming pools and spas (hot tubs) at Title III entities be accessible to persons with disabilities. With regard to existing swimming pools, the 2010 Standards require that commercial facilities and places of public accommodation remove physical barriers to the extent that it is “readily achievable,” i.e., easily accomplished without much difficulty or expense. The deadline to conform was extended 60 days from March 15, 2012 to May 14, 2012 and may be extended an additional 180 days.

Compliance with the 2010 Standards requires the installation of one or more fixed pool lifts; it is not clear whether a portable lift will be satisfactory.

Is it “Readily Achievable” For You To Install A Pool Lift To Make Your Swimming Pool & Spa Accessible
The 2010 Standards require that existing swimming pools and spas at commercial facilities and places of public accommodation remove physical barriers to the extent that it is “readily achievable,” i.e., easily accomplished without much difficulty or expense. There is no “quantifiable connection” or other mathematical formula to determine if barrier removal is “readily achievable.” Moreover, according to the Chief, Disability Rights Section, U.S. Department of Justice, “it is important to reemphasize that determining whether removal of a particular barrier is readily achievable requires a case-by-case assessment that may vary from business to business and sometimes from one year to the next for the same business. If a public accommodation determines that its facilities have barriers that should be removed pursuant to the ADA, but it is not readily achievable to undertake all of the modification immediately, the Department recommends that the public accommodation develop an implementation plan designed to achieve compliance with the ADA’s barrier removal requirements over time. Such a plan, if appropriately designed and diligently executed, may well serve as evidence of a good faith effort to comply with the ADA’s barrier removal requirements.”

Does The 2010 Standard For Accessible Swimming Pools & Spas Apply To You
Title III of the ADA applies to commercial facilites and public accomodations. A commercial facility includes nonresidential facilities, such as office buildings, factories, and warehouses, whose operations affect commerce. A public accommodation is an entity that owns or operates a place of public accommodation. A place of accommodation is a facility whose operations affect commerce and is:
a place of lodging,
an establishment serving food or drink,
a place of entertainment,
a place of public gathering,
a sales or service establishment,
a place of public display, recreation or education,
a social service center establishment, or
a place of exercise or recreation (e.g. gym).

Although a condominium or apartment building is a residential facility which is not governed by the 2010 Standards, they may apply to places of public accommodation within residential facilities. For example, an area within a multifamily residential facility will qualify as a place of public accommodation IF the use of the area is not limited exclusively to owners, residents, and their guests. ADA Title III Technical Assistance Manual Covering Public Accommodations and Commercial Facilities, III-1.2000, p. 10.

Conclusion

Hotels and motels should immediately investigate the cost of creating a barrier free swimming pool and spa as there is no guarantee that the deadline will be extended a second time. A spokeswoman for the U.S., Department of Justice Civil Rights Division Disability Rights Section said there is no criminal penalty for failing to install the lifts, but a civil penalty may be pursued. In addition to the possibility of a civil penalty levied by the Department of Justice, a disabled person can file a lawsuit to ensure that the barriers are removed and the court will require the non-compliant party to pay all legal fees. Title III entities may be eligible for a federal tax credit for small businesses (IRC section 44) or deduction (IRC section 190) for barrier removal costs or alterations to improve accessibility regardless of the size of the business.

Date Published: March 1, 2017


Written by: Cooper Levenson, P.A.

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