As public pool owners and operators sit at the
threshold of the ADA compliance deadline, some anticipate the
immediate filing of lawsuits against companies that haven’t
retrofitted their facilities.
Though the Americans with Disabilities Act was passed and signed in
1990, the federal government didn’t release specific language
pertaining to public pools and spas until it published its 2010 ADA
Standards for Accessible Design. The language states that public
pools measuring less than 300 linear feet in perimeter must have at
least one means of entry to accommodate disabled individuals. Pools
with more than 300 perimeter feet need two methods of access.
The U.S. Department of
Justice, the agency enforcing the law, originally required that
existing facilities come into compliance by March 15, 2012. It then
threw a curveball two months before the deadline, when officials
stated that portable access lifts would not be considered compliant
with the regulations, and instead required that all lifts be
anchored into the deck.
After pushback from industry groups, especially those representing
hotel and lodging, DOJ extended the deadline to May 21, 2012, with
a second extension taking the due date to Jan. 31, 2013.
The deadline extensions met with objection and even protest from
some disability rights organizations, which believed the hotel
industry, in particular, was trying to skirt responsibility for
making pools and spas accessible.
This time around, organizations representing the lodging and pool
industries expect the deadline to stick. “We’re fairly
confident that we’ve seen the last of the changes,”
said Steven Getzoff, legal counsel for the Association of Pool & Spa
Professionals and an attorney with Lester Schwab Katz &
Dwyer, LLP, in New York.
There are concerns that the deadline may unleash a string of
litigation pertaining to lifts. Generally speaking, the ADA is
often cited in lawsuits aimed at hotels and other commercial and
public facilities. “There’s been some abuse of [the
ADA],” said Kevin Maher, senior vice president of
governmental affairs for the American Hotel & Lodging Association in
Washington, D.C. “We’ve seen, particularly in
California and Florida, just a few firms or organizations that are
filing hundreds and hundreds of lawsuits. A lot of them really just
want a settlement. ... We think that’s unfortunate because
it’s not helping anybody in that case.”
With the pool lift requirement coming almost a year after enactment
of the rest of the law, it’s possible that a series of suits
will be filed shortly following the deadline. “It’s
going to be pretty obvious whether [a facility] has the lift in
place or not,” Maher said. “So I would expect to see to
see a lot of new cases related to pool lifts
An attorney who represents hotels and motels said he is already
involved in a lawsuit filed in early 2012 naming the ADA’s
pool lift requirement. “Basically, the plaintiff’s
lawyer was ... looking at the ADA guidelines, saw that it’s
going to require pool lifts and filed a suit,” said Marty
Orlick, a partner in Jeffer Mangels Butler & Mitchell, LLP’s San
Francisco office, and chairman of the firm’s ADA compliance
and defense practice group.
Another client has been threatened with a lawsuit for not having a
lift on a spa. Bringing the spa into compliance would involve more
than the costs of adding a lift, he said. The property owner also
would have to address a shortage of space. “It’s very
complicated, and the spa doesn’t get used very often, so my
client is considering filling in the spa,” Orlick said.
“I’ve heard that from others as well: ‘What if I
just close it? What if I tear it out and put in a barbecue
While industry members were quick to recognize the value of the
ADA, many are concerned about the few bad apples who try to take
advantage. “Generally, the application of the ADA to
businesses has been a positive thing. ... It’s provided a
fairer life for the disabled,” said Mark Stapke, a partner in
Robinson, LLP, in Los Angeles. “However, it’s
subject to abuse, particularly in the case of smaller retailers
like pool shops.”
Some individuals will visit several sites a day in search of ADA
violations, file a suit and settle for a few thousand dollars, he
said. Because of this, he believes the government should establish
limits, based on criteria such as company or property size, on whom
can be taken to court.
In the meantime, these organizations advise facilities to become
compliant by the deadline, or pool opening if it comes later. If an
ADA retrofit is not readily achievable, it’s recommended that
owners put plans into place to bring their properties up to
compliance by a later date.