When it comes to the Americans With Disabilities Act, public pool operators can breathe a sigh of relief … for now.
On the day of the original deadline for pools and spas — March 15 — the U.S. Department of Justice filed a notice moving the date to May 21, 2012. This was to “allow additional time to address misunderstandings among pool owners and operators regarding these ADA requirements,” the document stated.
In the interim, the agency will consider moving the deadline back a full six months to Sept. 17. It will hold a public comment period, until April 4, to gather opinions about the longer delay.
The extension was announced just four days after the introduction of a Senate bill meant to prevent enforcement of the ADA on commercial pools and spas.
S. 2186, by Sen. Jim DeMint (R-S.C.), would prohibit federal officials from enforcing the law with respect to public pools and spas.
“[The ADA standard] could lead to increased litigation and heavy fines that could force pools to close or raise fees …,” DeMint stated. “Pools with public access should have the flexibility to work directly with people with disabilities to accommodate their needs.”
Despite the latest development, DeMint continues to move forward with the bill, according to his spokesman, Wesley Denton. “The DOJ has been forced to admit they made a big overreach and are now retreating with a two-month delay on this unnecessary regulation,” he said. “But this isn’t over. Sen.DeMint will continue fighting. …”
DeMint and co-sponsors Lindsey Graham (R-S.C.) and Roy Blunt (R-Mo.) may have their work cut out for them. Not only is there a Democratic majority in the Senate, but it’s an election year, meaning Congress will likely adjourn early, leaving less time for legislating.
The ADA originally passed in 1990. In 2010, the U.S. Department of Justice released the Standards for Accessible Design, which specified how the law should be implemented in many arenas, including public pools and spas. A sloped entry or lift is required on most public pools, with a second means of access needed on those measuring more than 300 perimeter feet. Spas must have a lift, transfer wall or transfer system. Lifts have been the most popular choice because of their cost and the relative ease of adding them.
It is speculated that the bill and deadline extension come as a result of concerted efforts by industry organizations representing the pool and spa, waterpark, and hotel/motel fields. Officials from these groups tried to convince the DOJ to allow portable lifts, but the agency refused, saying that fixed lifts must be installed unless facility operators can show that doing so would not be “readily achievable” or would impose an undue burden. The agency did not define those terms. Additionally, the DOJ said facilities cannot use a single lift to serve both a pool and spa.
Some organizations then reached out to congressional representatives, hoping to enact change from a different avenue.
Though some in the industry find the bill too drastic, they do hope for an amenable solution in the potential six-month extension.
“We commend the DOJ for showing flexibility … because it means they realize that there’s an issue of people needing more time to comply,” said Steven Getzoff, legal counsel for the Association of Pool & Spa Professionals and an attorney with Lester Schwab Katz & Dwyer, LLP, in New York.
Another industry concern that has been answered in the short term is the fear of lawsuits. Some worried the DeMint bill would not prevent them from being filed. Though the DOJ is charged with implementing the law, few believed the agency would actively enforce it. Instead, it was expected that violators would be brought to court via civil suits.
“We’re not worried about the DOJ knocking on our door saying, ‘You’ve got to close down your pools and spas,’” said John Cox, service manager at Sparkling Pool Services Inc. in Windsor, N.J. “We’re worried about the guy who all of a sudden wants to introduce a class action lawsuit against the Hilton.” With the deadline pushed back, facility owners can put that concern to rest for at least 60 days.
However, the agency’s announcement didn’t indicate whether it would reconsider the portable lift question. The DOJ did specify that the comment period was meant only to address a longer extension, not the merits of the requirements themselves. But APSP officials hope for a chance to explain the complexities involved with adding a fixed lift.
“One issue is equipotential bonding,” Getzoff said. “[Bonding the lift] is a lot more involved than simply putting in anchors.”
Others hope the longer extension is granted so the DOJ can define “readily achievable” in relation to the allowance of portable lifts.
Timing also is an issue, Cox said. A 60-day extension would move the compliance deadline to just before the end of May, inviting the possibility of another pre-Memorial Day rush, similar to what came with last year’s massive drain-cover recall. But a six-month extension would take the compliance period past summertime, bringing facility owners some relief.
Representatives of the disabled community see it differently. They’ve waited 22 years since the ADA’s original passage. A six-month extension would mean another summer when many pools aren’t required to be accessible.
“It’s sort of a terrible spring break [announcement],” said Lara Schwartz, vice president of external affairs at the American Association of People with Disabilities, based in Washington, D.C. “Are we happy with a six-month extension? Not at all. Has it been absolutely long enough? Yes, it has. … We don’t like that there’s an extension, and job one is to work against that on every front. …”
The AAPD also plans to reach out to the business community to build greater understanding.
To file a public comment, follow the instructions found on the Notice of Proposed Rulemaking at http://www.gpo.gov/fdsys/pkg/FR-2012-03-20/html/2012-6747.htm.