Swimming pool and handicap issues have taken center-stage in 2012. Scary articles on new federal pool regulations include “The Pool-calypse” or “Poolmageddon” (yes, really). You may have the impression that every association pool needs extensive pool upgrades to comply with federal changes. The reality is not quite so clear. (As usual in the homeowner or condominium association world, your situation may be different. Contact us with specific questions.)
ADVANCE WARNING: The current situation is confusing. Reading this blog will be like swimming 20 laps in an Olympic pool!
Americans with Disabilities Act (ADA) Swimming Pool Guidelines
Changes to the ADA (Americans with Disabilities Act) for public pool facilities were issued in 2010 to be effective March 15, 2012. Without getting too specific, public pools have to be more handicapped accessible. Pools with a perimeter of less than 300 feet must have at least one accessible means of entry, either a lift or sloped entry. Pools with a perimeter of 300 feet or greater must have two accessible means of entry. Such “means of entry” can include a lift, sloped entry with handrails, transfer wall with grab bar, transfer system with steps, or accessible pool stairs. The most common means of entry are slope entries and lifts. These details are the easy part.
A first issue for an HOA/condo is whether an association pool is “public” under the ADA. Generally, private homeowner and condominium associations do not fall under the ADA “public accommodations” definition. (Don’t confuse ADA issues with FHAA issues, where a handicapped owner can request a “reasonable accommodation” to make modifications at their own expense.) So, if a community association pool is limited to owners and guests of owners, it’s likely the new ADA pool requirements will not apply. However, association actions can change this general rule. If an associations rents out the pool to public events or non-members to defray association expenses (or is a condo in the nature of a timeshare where units are actively rented to outsiders), it’s likely the pool will be subject to the ADA requirements.
Where things get complicated is in the middle. Let’s say you have a pool just for members and guests, but the pool hosts six swim meets a year. At those times, you don’t know who’s at the pool, but it includes guest swimmers, relatives of guest swimmers and others. During swim meets, the pool sounds like a public facility where the ADA rules apply. Unfortunately, lack of guidance with the new pool rules has led to different interpretations. One interpretation is that a few swim meets a year aren’t enough to change the nature of the pool to a public facility. But where’s the defining line that would trigger the ADA rules? Four swim meets? Twenty? The alternate interpretation is that for the few swim meets each year, the pool meets the definition of a public facility and must comply with the ADA rules at the events. Those taking this approach have advised clients that a portable lift that can be wheeled out when necessary is sufficient. (FYI, due to reports of problems with some mobile lifts, some pool companies only offer anchored lifts.) In early 2012, though, the Department of Justice (DOJ) announced that lifts for public pool facilities must be permanent, not temporary. As the pronouncement did not distinguish between pools that are public year-round versus associations that host four swim meets, the situation only became more confused. The outcry and confusion over the new requirements led the Justice Department to extend the compliance deadline for existing pools under the new ADA Standards to January 31, 2013. Also, the Department announced that it would release a “technical assistance document” to assist pool owners with the new requirements.
Without question, the issue of whether temporary lifts can be utilized is unresolved. With that said, there are a couple of approaches that may make sense with the new pool regulations:
- Depending on a smaller sized pool, your association may already be in compliance.
- For a larger pool, if your association only permits members and their guests, the new ADA rules will likely not apply.
- For a larger pool, if your association regularly rents out the pool to non-owners, you should assume the ADA rules will eventually apply. So, you may wish to consider pool modifications or changing the policy that permits non-owner rentals.
- For a larger pool, if your association hosts swim meets, you should keep a close eye on developing pool regulations. Unless you wish to go ahead and make permanent corrections, you may have more specifics once guidance on these issues is announced in a few weeks.
In case you’re wondering what the consequences of all this are, the ADA can be enforced by fines through the DOJ following a complaint or by a lawsuit filed by a private citizen. Complaints require that an answer be filed by the association, an investigation, cooperation, etc. Attorneys’ fees and costs for responding to ADA or Fair Housing Act issues are at times covered by some D&O policies, which may be worth confirming.