Articles Posted in Pool Lifts

In the latest decision against an Arizona “high frequency ADA litigant”, the United States District Court for the Central District of California ruled this week that cases like Brooke vs. Perry Family Trust, et al. have no place in Federal Court.

The plaintiff, Theresa Brooke, has filed hundreds of identical ADA lawsuits against Arizona and California hotels, including a half-dozen suits last week.  The plaintiff, a disabled resident of Arizona, contends that she was discriminated against by hundreds of hotel owners based on her disability.  She claims that these hotels violated the 2010 ADA Standards because they fail to provide permanent pool lifts at either or both the pool and spa.

In each case, Brooke alleges she called the hotels to “inquire whether the pool or Jacuzzi had a lift or other means of access for disabled persons” and the representative informed her that it did not.  Plaintiff then alleges she sent her “agent” – “an expert in ADA accessibility guidelines” – to visit the hotel, take pictures of the barriers and report back to her.  Plaintiff claims she frequently visits or intends to visit the area “in the coming months and for the indefinite future” for leisure and business.

January 31, 2013 is fast approaching and once again our phones are ringing off the hook and the emails are streaming in. Our hospitality clients want to know the latest action being taken by the Department of Justice (“DOJ”) on the Americans with Disabilities Act requirements for pool lifts at pools and spas at hotels, resorts, country clubs, golf and tennis facilities and other places of “public accommodation.”

So here is where things stand.

The pool lift controversy continues to make a splash, but is it a diversion from enterprise-wide ADA compliance?

The latest update is that the DOJ has not yet further delayed the January 31, 2013 implementation date.

The DOJ stunned both the hospitality industry and pool manufacturers when it proclaimed that only “fixed” or permanent pool lifts would comply with the new 2010 ADAAG Standards (effective March 21, 2012) to the extent “readily achievable.” Portable pool lifts installed on an as needed basis are prohibited unless it is not readily achievable, in which event a portable lift may be used if it is properly anchored.

Due to the efforts of industry groups like American Hotel & Lodging Association and pool and spa organizations, the DOJ postponed the pool lift effective date from March 21, 2012 to January 31, 2013.

The DOJ’s published position is that pool lifts need to be available at each pool and spa (although only one lift is required at a “cluster” of spas) during all pool and spa operating hours. The DOJ has mandated that only “fixed” pool lifts may be installed at each location unless the business can establish that such installation is not “readily achievable.” In such event, a portable pool lift may be permitted if it is properly secured and in place during operating hours.

All indications are that the DOJ remains intransigent that the pool lift requirement will be enforced on January 31, 2013 and pool lifts must be “fixed” to the extent readily achievable. A determination of what is “readily achievable” requires a legal opinion based on the facts of each case.

The ADA pool lift requirement — Situation summary
In September 2012, the DOJ announced it would extend the fixed pool lift requirement to January 31, 2013. Since then, the pool lift controversy has drawn little public attention, until now. Industry groups continue to work with legislators and DOJ officials to provide a greater degree of certainty and “real world” practicality to the pool lift controversy. Those close to the source believe that the DOJ will affirm the implementation date and its position that fixed pool lifts are required where readily achievable. The pool lift train left the station and those in the know believe the DOJ and disabled advocacy groups will enforce the “fixed” pool lift requirement January 31, 2013. We know of several lawsuits filed over the lack of pool lifts after March 21, 2012. We also know of a number of plaintiff’s lawyers who have been waiting for February 1, 2013 to make their splash into pool lift accessibility litigation.

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One year delay for ADA pool lift requirement

On March 26, 2012, the AH&LA announced support for legislation introduced to force a 1 year delay in enforcing the ADA pool lift requirement. The bill was introduced by Congressman Mick Mulvaney (R-SC) and has 26 original co-sponsors.

Authorize portable pool lifts, sharing lifts and protection for hoteliers during delay

ADA Defense Lawyer: What does the ADA pool lift compliance extension of May 15 mean for you?

First, let’s be clear that all compliance dates have NOT been extended!

Extended deadline for pool lifts is May 15

Responding to concerns expressed by the hotel, pool and spa manufacturing industries, and those of a number of U.S. Congressmen, on March 15, the White House plunged into the swimming pool access controversy by issuing a 60-day an extension to implement the 2010 ADA Standards for pool lifts. As a result of this action, the new deadline for installing pool lifts is May 21, 2012, but that too may change.

March 15 deadline remains for all other provisions of new ADA Standards

The March 15, 2012 compliance date remains in effect for all other provisions of the 2010 Standards. The Department of Justice will soon publish a Notice of Proposed Rulemaking giving the public 15 days to express their views. We expect the hotel and pool and spa industries will take a much more active role in the public comment process than they did when the 2010 Standards were initially open for comment.

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As you should know by now if you are following developments on the Americans with Disabilities Act (or ADA), the most sweeping changes to the ADA in 20 years become effective on March 15, 2012.

It seems that almost every day there is some new development or interpretation of the new rules. For an up-to-date summary of some key provisions, please see articles listed at the end of this posting.

The hotel industry has been visiting the DOJ’s Civil Rights Division to get clarification on the recent DOJ guidance on “fixed” pool lifts.

Congressmen intervene with DOJ on pool lift issues
Last week, two prominent Congressmen, Mike Mulvaney and Todd Rokita, jumped into the fray with a letter to DOJ (see below) acknowledging its important efforts to provide swimming pool access to the disabled community. Here are a few highlights from the letter and the full text is below.
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SAN FRANCISCO-The Department of Justice gave March 15 as the deadline for all hotel properties to install pool lifts for disabled guests who could not otherwise use the facilities independently. According to the DOJ, these lifts must be fixed, well-maintained, and exclusive to each pool.

Recently, Martin H. Orlilck, an Americans with Disabilities defense lawyer, sat down with GlobeSt.com’s Miriam Lamey to discuss the impending deadline and how the hotel industry has and will respond to the requirements.

A question and answer session follows:

GlobeSt.com: What do you think the new regulations mean for the industry?
Orlick:This requirement for accessible pool lifts is not new. The actual requirement has been around for the past 15 years. There have been advocacy groups and therapeutic practitioners who have been advocating for pool lifts for that long. And there were a lot of things that take a long time: It takes a while for the technology to catch up with the ideology. And so therapists and advocacy groups and individuals were pressing for pool lifts and other types of devices including health and fitness equipment while the technology didn’t exist. And there weren’t the right manufacturers; there were a lot of questions about what the standards should be for this type of device. In 2008,the Department of Justice made it clear that they were going to be developing some guidelines for accessible pools. But up until 2010 when these standards were approved, the only requirement was to [be able to] get someone with a disability to the pool.

GlobeSt.com: So what hospitality operators supposed to do after that?
Orlick: Well, that’s the point. But that was the extent of the law: you just needed an accessible path of travel to the pool. Not to get so much into the pool. And for the past number of years, disabled advocacy groups have been complaining about it. Some problems included that there was no way for people to get in or out of the pool, independently or with other assistance. So, an individual [with a disability] would be now paying for the pool that’s built into his or her rates, and they don’t get to use the pool facilities as anyone else would.

GlobeSt.com: What was the response?
Orlick: Well, the access board and Department of Justice worked on developing technical standards for a pool lift. And they’ve done that over the last couple of years. Now, the 2010 standards include scoping provisions – in other words, how many pool lifts does a hotel have to have, where they need to be and the technical requirements. Now, scoping requirements and technical requirements are part of 2010 standards. [The latter] define what the lift is supposed to look like, how it is supposed to operate and so on. The seat is supposed to be a certain size, the lift is supposed to drop 18 inches into the water, things like that.

GlobeSt.com: What does that mean to the industry?
Orlick: The industry is confused – it’s genuinely confused. It’s confused and I’m getting phone calls every day – every couple of hours! – from operators of hotels who are saying “what do I do?” And their concerns are in part financial, but they are not financially-driven. I don’t believe that. They are more driven to asking, “what does the Department of Justice actually require?” And “what does it mean as far as the operations of my property?” Continue ›