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New ADA Pool Regulation May Require Associations to Increase Accessibility for People with Disabilities

Community Associations Update

With swimming pool season right around the corner, confusion surrounds the ever changing interpretations of the new ADA pool regulations. In particular, associations now may be required to make modifications to their existing pools to make them accessible to people with disabilities.

What is the new ADA pool regulation?

In July 2010, the U.S. Department of Justice released revised regulations for Titles II and III of the Americans with Disabilities Act (“ADA”). Among the regulations are requirements that, with certain exceptions, pools that are deemed to be “places of public accommodation” must now comply with the 2010 ADA Regulations. Specifically, pools that qualify as places of public accommodation must remove barriers to entry into facilities, so that the pools are usable by individuals with disabilities when it is readily achievable to do so, i.e., easily accomplishable without much difficulty or expense. These requirements now apply to both existing and newly built pools, spas and wading pools (e.g., kiddie pools). The compliance date is March 15, 2012, so it is critical that your association evaluate the applicability requirements and bring your facility into compliance, if needed. From a practical standpoint, despite this “deadline,” Maryland has since released additional information that provides this deadline may be extended to March 15, 2013 if an association completes necessary paperwork.

Does your association have to comply with the new ADA regulation?

An association must comply with the new ADA regulation if its swimming facility is considered a place of “public accommodation.” A place of “public accommodation” is defined as a facility operated by a private entity whose operations facilitate commerce and that fall within certain designated categories, including places of exercise or recreation. Although the ADA regulation does not single out community associations, based upon various ADA manuals and HUD guidelines, the following is a list of what is and is not considered a place of “public accommodation” in the context of community associations:

  1. If your swimming pool is open only to residents and their guests, the association is not required to comply with the new ADA regulation;
  2. If the association offers outside memberships to the public for use of its pool, the association is required to comply with the new ADA regulation; and
  3. If the association rents out its pool to the public, the association is required to comply with the new ADA regulation.

What must your association do to comply?

If your association falls into one of the above categories that require your association to comply, the ADA standards provide:

  • Pools with 300 or more linear feet of pool wall: Must install two accessible means of entry into the pool. One entry must be a slope or lift and the other entry may be a slope, lift, transfer wall, transfer system or approved stairs.
  • Pools with less than 300 linear feet of pool wall: Must install one accessible means of entry into the pool, which may be by either a slope or a lift.
  • Wading Pool: Must provide a sloped entry, which extends to the deepest part of the wading pool.

Are there any exceptions to compliance?

Associations are excused from the above regulations if making the above modification would not be “readily achievable,” which is interpreted to mean without much difficulty or expense. Because portable lifts are relatively inexpensive and easy to install, it probably is “readily achievable” to install one ore more lifts. Alternatively, modifying a wading pool so that it has a sloped entry can be expensive and often not possible due to size or physical construction limitations and therefore not readily achievable. In order to make a determination as to whether it is “readily achievable” for your facility to comply, contact legal counsel for a case by case analysis of each individual facility, number of pools, financial abilities, etc. Additionally, obtaining bids or an assessment from your pool service provider or contractors is beneficial to analyze the cost issues.  

What enforcement action will the federal and state governments take? 

ADA enforcement generally is complaint-driven, i.e., if an owner or outside member files a complaint stating that the association fails to comply, the federal government will evaluate the association’s compliance. Additionally, each state and local municipality will enforce as it chooses. The State of Maryland recently determined that it would not actively enforce this new ADA regulation at this time. Nevertheless, the State Office of the Attorney General has issued an ADA Affidavit that all pool facilities will need to submit in order to obtain permits for the 2012 season. As set forth in the affidavit, the pool owner needs to certify the status of the pool and compliance date, if applicable. Otherwise, the owner needs to indicate that the pool is subject to an exception and not subject to compliance.

This article is meant to give associations general knowledge regarding the new regulation. If you have specific questions relating to your specific facility, please contact our office as this regulation is very fact-specific.

Ruth Katz is a community associations attorney at Lerch, Early & Brewer in Bethesda, Maryland who represents condominiums, cooperatives and homeowners associations. For more information about the new pool regulations, contact Ruth at (301) 657-0188 or rokatz@lerchearly.com.

This content is for your information only and is not intended to constitute legal advice. Please consult your attorney before acting on any information contained here.

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