[NOTE: This article first appeared in the Spring 2012 Edition of Hyatt & Stubblefield, P.C.'s "Community Developments"]
Last fall we reported that the U.S. Department of Justice ("DOJ") issued revised regulations for the Americans with Disabilities Act ("ADA") that included new accessibility standards (the "2010 Standards"). Prior to the 2010 Standards, the regulations provided that new construction and alteration of existing construction had to meet the building codes and standards applicable at the time of the alteration or construction. A facilities owner did not have to "retrofit" or comply with newer standards unless they were building new facilities or modifying the existing facilities.
Under the 2010 Standards, however, recreational facilities that are considered to be "public accommodations" may have to comply with the barrier removal requirements of the new regulations if it is "readily achievable" to do so. While there is no hard and fast rule, "readily achievable" means easily accomplished without much difficulty or expense.
There is a "safe harbor" provision with respect to the obligation to modify some facilities, but the 2010 Standards provide that facilities for which no previous standards existed do not fall within the "safe harbor" provision. Specifically identified as not falling with the safe harbor of the 2010 Standard's are swimming pools, wading pools, and spas.
Pursuant to the 2010 Standards, swimming pools with 300 or more linear wall feet must have at least two accessible means of entry, and smaller pools must have at least one accessible entry. The 2010 Standards require that at least one entry be a sloped entry or a pool lift. The other entry may be a sloped entry, pool lift, transfer wall, or transfer system. Wading pools are required to have a sloped entry which extends to the deepest part of the wading pool. Spas must have at least one accessible means of entry.
Recreational facilities falling within the public accommodation classification were given until March 15, 2012 to remove barriers to the extent readily achievable and be brought into compliance with the 2010 Standards. However, the DOJ has since delayed the applicability date of the 2010 Standards for existing pools, wading pools, and spas until January 31, 2013.
Pools associated with private residential communities and clubs which are limited to the exclusive use of residents, members and guests are generally not covered by the ADA accessibility requirements. As the operator of a pool, however, the homeowners association or club must ensure that permitted use of the pool does not give rise to classification as a "public accommodation" and, thus, having the 2010 Standards apply.
There is no universal rule protecting a homeowners association or private club from application of or liability under the ADA. More specifically, a homeowners association cannot simply argue "we are a private community" and evade responsibility. The facts must support the claims. A court will look at access and activities held at the pool and, depending upon circumstances, may conclude that the facility located within a private residential complex is in fact a "public accommodation."
Title III of the ADA defines a "public accommodation" as a facility whose operation affects commerce and falls within one of the 12 specified categories in the ADA. Pools fall within the category of "places of exercise or recreation." While the ADA regulations do not single out homeowners associations, the occurrence of any of the following examples might make a homeowners association's pool a public accommodation:
• The homeowners association sells memberships to persons who are not lot owners within the community
• The homeowners association permits the general public access to the pool facility by walking up and paying a fee
• The homeowners association rents out the pool facility to members of the public
• The pool facility is made available for swim meets or swim practices
• Swim lessons are available to members of the general public
• The pool is not exclusively made available to members and their guests
• The homeowners association permits members of a neighboring association to use the pool facility under a shared use agreement
Those homeowner associations which are required to comply with the new pool accessibility standards now have until January 31, 2013 to make the required modifications so long as they are "readily achievable." Readily achievable means that it may be accomplished without much difficulty or expense. This is a flexible case-by-case analysis. For example, if a homeowners association does not have the funds necessary to make the modifications, they are not readily achievable and do not have to be made. However, the DOJ has made it clear that the flexibility of the new standard and the relatively low cost of providing accessibility will make it difficult to prove that making modifications is not readily achievable. The obligation to meet the 2010 Standards is a continuing one and the expectation is that steps will be taken over time to comply.
If you would like more information about the 2010 Standards or would like to discuss whether the uses within your community could meet the public accommodation requirement under the ADA, please contact us.